Attempted Drug Trafficking Crime Under Turkish Criminal Code
introduction
Drug trafficking is one of the types of organized crime that has serious consequences both at the individual and societal level. Not only the committed form of this crime, but also the attempted stage is severely punished by Turkish Criminal Law. In particular, the provisions on enterprise laid down in Article 35 of the Turkish Penitentiary Code No. 5237 reveal the circumstances in which preparation and enforcement actions for drug trafficking are punishable.
I. General Framework of Enterprise Provisions (TCK m.35)
A. Definition and Conditions
According to TCK m.35, a person remains at the stage of the attempt if he has started the execution of the crime he wants to commit directly with favorable actions and has prevented the completion of the crime for reasons beyond his control.
For the enterprise, two basic elements must take place:
1. commencement (initiation) of the crime with favorable actions,
2. Failure to complete the crime, but to prevent it for reasons that are not in the hands of the perpetrator.
B. Reduction or Execution in Penalty
The punishment to be imposed in the event of an attempt is determined by the judge at a reduced rate according to the intent of the perpetrator, his proximity to the crime and the intensity of his favorable actions (TCK m.35/2).
II.Attempted Crime of Trafficking in Drugs or Stimulant Substances (in connection with TCK m.188)
A. Scope of the Crime
According to TCK m.188, acts such as selling a drug or stimulant substance, making it available for sale, giving to others, shipping, transporting or storing drugs or stimulants constitute a criminal offense. However, if the fact that these actions have not yet been completed and that they have gone beyond the preparatory stage indicates that the perpetrator has taken serious steps towards committing a crime, then this situation is considered under 'attempt'.
B. Stages of the Enterprise
For example:
- packaging of drugs of the perpetrator,
- to make plans to meet with another person for the purpose of drug trafficking and to go to the meeting place,
- Placing the drug in the vehicle where the drug will be transported but the substance cannot be distributed upon capture,
such situations, most often considered within the scope of the enterprise.
III. Application by Supreme Court and Resignation Decisions
Supreme Court Decision on Attempted Drug Trafficking
20th Criminal Division 2020/12 E., 2020/3621 K.
“Text of Case Law”
On request of the Supreme Ministry of Justice to overturn the decision of the Bakırköy 2nd Juvenile Heavy Criminal Court dated 30/11/2017, 2016/182 and 2017/335 against the accused person of possession of drugs for the use of..., in the case of the Office of the Prosecutor General of the Supreme Court, on request that the decision of the Supreme Court of Justice be annulled in the notification letter of the Republic General Prosecutor of the Supreme Court dated 17/12/2019 It turned out that it was sent to us.
The file has been reviewed.
IT WAS CONSIDERED AND CONSIDERED AS FOLLOWS:
A-) Information on the subject:
1- As a result of the investigation carried out by the Bakırköy Public Prosecutor's Office for alleged drug trafficking on 25/02/2016 about the suspect..., the investigation 2016/41093 dated 27/04/2016, based on 2016/15443 and the indictment No. 2016/220, of the Turkish Penal Code No. 5237, No. 5237, 5237 that a public case has been filed with the Bakırköy Children's Heavy Criminal Court with a request to be punished in accordance with articles 4.
2-By the decision of the Bakırköy 2nd Juvenile Agrimental Penal Court dated 30/11/2017, 2016/182 and 2017/335, pursuant to Articles 188/3, 31/3, 62/1 and 52/2 of the Turkish Criminal Code No. 5237, 5 years 6 months and 20 days imprisonment and a judicial fine of 40,00 Turkish Lira. that it was decided to be adopted and that the decision was finalised on 08/12/2017 without appeal,
Understood.
B-) Intent to Distort in the Interest of the Law:
in the letter of solicitation and notice of violation in the interest of the law;
The Bakırköy 2nd Juvenile Criminal Court of Bakırköy 2nd Juvenile Criminal Court dated 30/11/2017, stating that “a child who is charged with the crime of trafficking in drugs or stimulants... is punished with fines of 5 years 6 months and 20 days in prison and 40,00 Turkish lira in accordance with Articles 188/3, 31/3, 62 and 52.2 of the Turkish Criminal Code No. 5237 and the file covering the 2016/182 base, 2017/335 decision was examined.
In the letter dated 27/05/2019 of the 20th Criminal Chamber of the Supreme Court concerning a similar incident, Decision No. 2018/5618, 2019/3293, stated that “... the defendant... had conversations about the exchange of drugs but before the meeting with the other defendants... and... the defendants... and... were caught before the meeting with the other defendants... and... and... failure to observe that the defendant's crime of trafficking in drugs remains in the attempted stage and that a reduction from his sentence in accordance with Article 35 of the TCK should be deducted from his sentence,...”, in the concrete case, the crime the abducted child, who listened as a witness during the investigation and during the trial and who did not seize the drugs on it during the search, got into his car with the intention of selling drugs, but was caught by law enforcement before selling the drugs on it to the said witness, but was caught by law enforcement before selling the drugs on it to the said witness, while the act remained in the attempted phase. Without applying Article 35 of the Law No. 5237 on children, there was no success in the determination of excess sentences.” according to Bakırköy 2nd Children's Heavy Penal Court dated 30/11/2017 and 2016 In accordance with Article 309 of the Code of Criminal Procedure No. 5271, /182, 2017/335, it was requested to be overturned.
In the concrete case; according to the scope and nature of the case, the security forces who arrived at the scene upon notification that drug trafficking was being carried out in the vehicle, the defendant... was caught in the same vehicle as the drug user..., the witness was caught in the same vehicle as the witness..., in which 4 packages of drugs were seized on the defendant, and the witness's statement in stages was with his vehicle to purchase drugs Attempted action of the defendant to sell drugs, in which he stated that he went to the place and therefore got into the defendant's vehicle, but was caught without taking drugs that it remains in the stage, but; that until that stage the defendant's actions of “possessing and selling drugs for commercial purposes” have been completed, so that the crime of dealing drugs, which is an elective movable crime, cannot be said to remain in the attempted stage, since it is understood that the intention to pervert the law is not seen in place and to decide against is necessary.
D-) Decision:
For the reasons described,
Since the decision of Bakırköy 2nd Juvenile Heavy Criminal Court dated 30/11/2017 and 2016/182 basis, 2017/335 is in accordance with the law, the refusal of the request to overturn the law in favor of the law not seen in place, the file must be sent to the General Prosecutor's Office of the Supreme Court of the Supreme Court to be forwarded to the said court
It was decided unanimously on 01/07/2020.
IV. Legal Assessment
The punishment to be given to the perpetrator in case of attempted drug offenses may vary depending on the degree of approach to the crime. For example:
- If the enforcement actions are at a very advanced level, the reduction in the penalty will be limited.
- The discretion of the judge for actions that fall on the border between preparation and execution is wide.
In addition, aspects such as the perpetrator's remorse, cooperation, and willingness to benefit from effective remorse provisions can be influential in determining the punishment.
consequence
Attempted crime of drug trafficking is a subject that requires complex and careful analysis in practice. When considered in conjunction with the provisions of TCK m.35 enterprise, it is aimed at establishing the limits of the perpetrator's actions and conducting a fair trial. Accurate determination of the difference between preparation and attempt, especially in the light of the Supreme Court and appeals decisions, plays a critical role in defense and prosecution strategies. However, since these crimes are serious criminal offenses, we recommend that you work with an expert criminal lawyer.
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