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Drug Crime Elements
Drug Crime ElementsThe subject of the crime of manufacturing and trading narcotic or stimulant substances is “drugs or stimulant substance”. There is no definition in the TCK about what drugs or stimulants consist of. In order to determine whether the substance subject to crime is a narcotic or stimulant substance within the scope of Article 188 of the TPC, first of all, the historical process of the crimes of manufacture and trade of narcotic or stimulant substances should be examined.
Whether a substance is a narcotic or a stimulant or whether a narcotic or stimulant substance is “banned” or “licensed” are two different matters. The prohibition or licensing of drugs or stimulants are regulated by Laws No. 2313 and 3298. It is not the determination of a substance as a narcotic or stimulant substance, but the inclusion of a substance with this quality within the scope of the provisions of the aforementioned Law, that is, the process of subjecting the said substance to a license, which is made by the decision of the Council of Ministers issued on the basis of these laws.
Possession
When a suspicious substance is seized, it is first sent to an expert institution that has laboratory facilities and can conduct scientific analysis;
The physical and chemical properties of the early substances it contains,
Known and chemical names of these substances,
Which of these substances are narcotic and stimulant substances,
Legal basis for counting drugs and stimulants under the TCK,
It is necessary to ask the pure weight of the narcotic and stimulant substance it contains.
It is necessary to examine the action element of the crime of manufacture and trade of drugs or stimulants by dividing them into three. While “manufacturing, importing and exporting drugs and stimulants unlicensed or contrary to the license” constitutes the action element determined in the first paragraph of Article 188 of the TPC; The act element of the crime regulated in the third paragraph of the same article is to “sell, offer for sale, give to others, ship, transport, store or export a narcotic or stimulant substance without a license or against the license. The action element of the crime regulated in the seventh paragraph is “importing, manufacturing to sell, buy, ship, transport, store or export.” The crimes regulated in all three paragraphs of the article are optional mobile crimes.
The intent of the perpetrator is important in the formation of the crime. The crimes of manufacture and trade of drugs or stimulants must be committed “with a purpose other than use”. This is because the crime is for the ultimate purpose of doing business. If the perpetrator has purchased drugs or stimulants for the purpose of using them, and the amount of drugs or stimulants is within the limits of personal use, the crime regulated in Article 191 of the TCK is not the crime of purchasing. If it cannot be determined whether the perpetrator purchased drugs or stimulants for the purpose of using or for any other purpose, the perpetrator should be considered to have purchased drugs or stimulant substances with the aim of using drugs or stimulants, in accordance with the principle of “the accused benefits from the doubt”, and he should be punished in accordance with Article 191 of the TPC.
Sanctions in case
In line with the case law of the Supreme Court, the criteria for determining whether the act of possession of drugs is for the purpose of use or for a purpose other than use;
Whether the perpetrator has engaged in any behavior to sell, transfer or supply the drugs he has
-Customer search,
-Sample display,
-Negotiate
The place where the drug is kept and the way it is kept
-Many seizures in small packets
-Having precision scales
Type and amount of narcotic drug
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