Drug Trafficking Offense: Can a Conviction Be Based Solely on Suspicion?
A charge of drug trafficking is one of the criminal allegations that may have extremely serious consequences for an individual. Article 188/3 of the Turkish Penal Code No. 5237 (TCK) regulates nine alternative acts. These are: selling, offering for sale, giving to others, dispatching, transporting, storing, purchasing, accepting, and possessing.
However, the mere seizure of narcotic drugs in every case does not automatically mean that the case should be classified as drug trafficking. In particular, the distinction between drug trafficking under Article 188 of the TCK and purchasing, accepting, possessing, or using narcotic drugs for personal use under Article 191 of the TCK must be correctly established.
In making this distinction, it is not sufficient to consider only the quantity of the substance. The nature and quantity of the substance, where and how it was found, the manner in which it was packaged, the person’s use of the substance, communications records, money transfers, physical surveillance, witness statements, and other evidence must be evaluated as a whole. The Criminal General Assembly of the Court of Cassation has also accepted that this distinction should not be made on the basis of a single criterion.
Criminal General Assembly of the Court of Cassation: A Conviction Cannot Be Entered Without Definite Evidence Free from Doubt
The decision of the Criminal General Assembly of the Court of Cassation dated 20 December 2022, File No. 2022/91 and Decision No. 2022/815, constitutes an important example concerning an allegation of participation in a drug-trafficking offense.
In the case file, money transfers were made through the defendant’s bank and PTT accounts, and certain telephone conversations were also identified. However, it was jointly assessed that the other defendants had not provided sufficient statements establishing the defendant’s connection with the offense; no definite evidence had been produced showing that the defendant knew that the money transfers would be used in drug trafficking; the communications records were not considered sufficient on their own to prove the offense; and the defendant denied the accusation. The Criminal General Assembly concluded that there was no evidence sufficient for a conviction, free from doubt, definite and convincing, contrary to the defendant’s defense.
The fundamental principle demonstrated by this decision is:
A criminal conviction must be based not on probability, but on sufficient and lawfully obtained evidence.
However, this principle should not be applied by repeating the same decision in every drug case; rather, it must be assessed in light of the specific characteristics of the evidence in the particular case.
Drug Offenses and Penalties Under Article 188 of the TCK
| TCK Article | Act / Aggravating Circumstance | Penalty as of 2026 |
|---|---|---|
| TCK Art. 188/1 | Manufacturing, importing or exporting narcotic or psychotropic substances without a license or contrary to the terms of the license | 20 to 30 years’ imprisonment + 2,000–20,000 days of judicial fine |
| TCK Art. 188/3 | Selling, offering for sale, giving to others, dispatching, transporting, storing, purchasing, accepting or possessing narcotic or psychotropic substances within the country | At least 10 years’ imprisonment + 1,000–20,000 days of judicial fine |
| TCK Art. 188/3 | The person to whom the narcotic or psychotropic substance is given or sold is a child | The term of imprisonment may not be less than 15 years |
| TCK Art. 188/4-a | The substance is heroin, cocaine, morphine, basemorphine, synthetic cannabinoids and their derivatives, synthetic cathinones and their derivatives, synthetic opioids and their derivatives, or amphetamine and its derivatives | The penalty is increased by one-half |
| TCK Art. 188/4-b | The act under Article 188/3 is committed in public or publicly accessible places within 200 meters of places such as schools, dormitories, hospitals, barracks or places of worship specified by law | The penalty is increased by one-half |
| TCK Art. 188/5 | The offense is committed jointly by three or more persons | The penalty is increased by one-half |
| TCK Art. 188/5 | The offense is committed within the framework of the activities of an organization formed for the purpose of committing crimes | The penalty is increased by one time |
| TCK Art. 188/6 | Acts specified in Article 188 are committed with respect to substances whose production is subject to official authorization or whose sale requires a prescription and which produce narcotic or psychotropic effects | The penalty may be reduced by up to one-half |
| TCK Art. 188/7 | Importing, manufacturing, selling, purchasing, dispatching, transporting, storing or exporting substances used in the production of narcotic or psychotropic substances, the import or manufacture of which is subject to authorization | At least 8 years’ imprisonment + 1,000–20,000 days of judicial fine |
| TCK Art. 188/8 | The offense is committed by certain healthcare professionals or persons engaged in chemistry or pharmaceutical trade specified by law | The penalty is increased by one-half |
13 Critical Defense Criteria in Drug Trafficking Cases
A person’s case should not be assessed solely on the basis of the seized substance when that person is facing a drug-trafficking charge. In particular, the following matters should be separately examined during the investigation and trial stages.
1. Is There Concrete Evidence of Trafficking?
Is there direct or indirect but concrete evidence showing that the drugs were sold by the defendant?
Is there a customer statement, evidence of the delivery itself, camera footage, physical surveillance, explicit communications relating to the sale, or another material piece of evidence?
If narcotic drugs are found on another person, a concrete connection establishing that the substance was supplied by the defendant must be demonstrated.
2. Do the Quantity and Nature of the Substance Really Demonstrate an Intent to Traffic?
The quantity is an important factor in the assessment; however, it is not determinative on its own.
The type and quantity of the narcotic, the person’s patterns of use, and the other characteristics of the case must be examined together. The Court of Cassation has established that this distinction should not be made on the basis of a single criterion.
3. Where and How Was the Narcotic Found?
The location where the substance was found must be assessed, including whether it was found on the person, at the person’s home, in a vehicle, or in a concealed compartment.
Large numbers of small packages, packages of identical weight, hidden compartments, or packaging ready for sale may constitute indications relevant to an intent to traffic.
However, each of these matters must be evaluated together with the other evidence.
4. What Do the Blood and Urine Tests Show?
If the defendant states that he or she uses narcotic drugs, the relationship between the blood or urine analyses and that defense may be examined.
A positive result does not, by itself, prove drug trafficking. A negative result likewise does not, by itself, prove trafficking. What matters is the assessment of the technical findings together with the other evidence.
5. What Do Precision Scales and Packaging Materials Really Show?
Precision scales, small sealed bags, packaging materials, or similar items may support an allegation of drug trafficking.
However, it cannot be said that the existence of such items automatically proves the trafficking offense on its own. Where they were found, to whom they belonged, and what connection they had with the narcotic substance must also be established.
There have also been decisions of reversal in cases where investigations concerning precision scales were left incomplete in the practice of the Court of Cassation.
6. Do the Telephone Conversations Really Indicate Drug Trafficking?
Telephone conversations and messages may constitute important evidence. However, it must be investigated whether the content of the conversations actually relates to drug trafficking.
The persons’ names, the expressions used, the time and content of the conversation, its connection with the incident, and whether it is consistent with other evidence must all be evaluated together.
Simply having a telephone conversation with another person does not, by itself, demonstrate that drug trafficking was committed.
7. Was the Money Seized Actually Obtained from Drug Sales?
Money found on the defendant, transactions in the defendant’s bank account, or transfers received from third parties should not automatically be regarded as proceeds of drug trafficking.
It must be established from whom the money came, when it was sent, for what purpose it was sent, and whether there is a concrete connection with drug trafficking.
Where no connection between the money movements and the offense can be established, the evidentiary weight that should be attributed to those transactions against the defendant must be separately discussed.
8. Were the Search and Seizure Procedures Lawful?
In drug cases, it is important to consider not only “what was found” but also “how it was found.”
It should be examined whether a search warrant or written order existed, where the search was conducted, whether the required procedural rules were followed during the operation, and whether the evidence was obtained lawfully.
The 10th Criminal Chamber of the Court of Cassation, in its decision dated 23 November 2021, File No. 2020/4384 and Decision No. 2021/12308, held that where the procedural requirements prescribed by law for a search of a residence had not been complied with, the narcotic drugs obtained could not be relied upon as evidence and that, where there was no other sufficient evidence, an acquittal was required.
9. Were the Packages and Packaging Materials Subjected to Forensic Examination?
If the defendant states, “The drugs do not belong to me,” it may be important to determine whether fingerprint examinations and, depending on the circumstances of the case, other forensic examinations were carried out on the packages or packaging in which the narcotic was found.
In its decision dated 27 November 2018, File No. 2015/12784 and Decision No. 2018/5506, the 20th Criminal Chamber of the Court of Cassation considered an incomplete examination concerning an alleged fingerprint on a narcotics package to be a ground for reversal.
Accordingly, it must be investigated whether a genuine connection between the physical evidence and the defendant has actually been established.
10. Were the Preservation and Sampling Procedures for the Substance Lawful?
The file should clearly and verifiably show who took custody of the seized substance, how it was preserved, how it was sealed, how samples were taken, and how the samples were sent to the laboratory.
The file should also contain the expert/forensic reports establishing the type and nature of the substance.
11. Are the Informant and Witness Statements Consistent with the Other Evidence?
If an investigation was initiated upon an informant’s report, the connection between the content of the report and the evidence subsequently obtained must be examined.
If a witness states, “I bought the drugs from the defendant,” it must be examined whether that statement is supported by other evidence.
Conversely, if the witness expressly states that the drugs were not obtained from the defendant and that the witness did not see the defendant selling drugs, the existence or absence of concrete evidence to the contrary becomes important.
12. Are the Expert Reports Sufficient?
The type, quantity, and nature of the narcotic substance must be technically established.
In particular, where cocaine, heroin, or other substances listed under Article 188/4-a of the TCK are involved, the type of substance is also important in determining the applicable penalty.
13. Was the Suspect’s or Defendant’s Statement Taken in Accordance with Procedure?
The statement taken during the initial stage of the investigation is extremely important in drug cases.
It must be assessed whether the suspect was effectively provided with the right to the assistance of counsel, under what conditions the statement was taken, why there are differences between the statement and subsequent defenses, and whether the statement taken by law enforcement was confirmed before the court.
Conclusion: Every Piece of Evidence in Drug Cases Must Be Examined Separately
With respect to a person subjected to an investigation or prosecution for the offense of drug trafficking, it is not sufficient to assess the case solely on the basis of the narcotic substance seized.
The distinction between drug trafficking under Article 188 of the TCK and possession or use of narcotic drugs for personal consumption under Article 191 of the TCK must be correctly established.
In making this distinction, the following must be evaluated together:
- the quantity and type of the narcotic,
- the manner of packaging and storage,
- blood and urine analyses,
- precision scales and packaging materials,
- telephone conversations and messages,
- bank transactions and money transfers,
- physical surveillance reports,
- witness and informant statements,
- search and seizure procedures,
- fingerprints and other forensic examinations,
- the procedures concerning preservation and sampling of the substance,
- expert reports,
- and the defendant’s defense.
There must be sufficient and lawfully obtained evidence capable of proving that the person actually committed drug trafficking.
Avrasya Law | Avrasya Law Firm
As Avrasya Law – Avrasya Law Firm, we consider it important in investigations and prosecutions concerning drug trafficking, possession of narcotic drugs, and drug use within the scope of criminal law that the case be assessed not merely on the basis of the accusation, but holistically with regard to the manner in which the evidence was obtained, its connection with the other evidence, and its legal nature.
Particularly in investigations and serious criminal proceedings conducted in Antalya, careful examination of statements, searches and seizures, communications records, physical surveillance reports, forensic examinations, and other evidence from the earliest stage of the investigation is important for establishing a proper defense.
Avrasya Law | Avrasya Law Firm – Antalya
This article has been prepared for general legal information purposes. In drug-related offenses, the legal classification, applicable penalty, and defense strategy may vary depending on the specific circumstances of the case, the evidence, and the applicable legislation.
