1. General Assessment and Legal Framework
The most fundamental determining factor in deciding whether the act of possessing a narcotic substance constitutes “drug trafficking” (TCK art. 188/3) or “possession of a narcotic substance for personal use” (TCK art. 191/1) is the perpetrator’s purpose of possession of the narcotic substance. According to the established jurisprudence of the Supreme Court’s General Criminal Assembly and relevant criminal chambers, specific criteria, which vary according to the circumstances of the concrete case and are accepted in doctrine and practice, are taken as a basis in determining this purpose.
2. Key Criteria for Distinction
In judicial decisions, three main criteria are emphasized to determine the difference between drug trafficking and possession for personal use:
Perpetrator’s Conduct: It is examined whether the perpetrator was involved in any preparatory or executive action (such as offering for sale, transporting, storing, etc.) regarding the sale, transfer, or supply of the narcotic substance in their possession to another person. Sales activities supported by coded expressions in WhatsApp chats (e.g., “Vitamin C” entries), phone conversations, or witness testimonies indicate the crime of trafficking.
Place and Form of Possession:
Purpose of Use: It is accepted that a person possessing drugs for personal use generally keeps the substance in easily accessible places such as home or workplace.
Purpose of Trade: Keeping the substance in hidden and hard-to-reach places (warehouse, cave, haystack, etc.), away from home or workplace; and its presence in numerous, carefully prepared small packages (wraps/doses) divided into equal amounts as a result of precise weighing, is an important indicator of commercial intent. Additionally, the presence of sensitive scales and packaging materials (aluminum foil, transparent bags, etc.) alongside the drug strengthens this belief.
Type and Quantity of Narcotic Substance:
Quantity: Possession of a substance in an amount exceeding the perpetrator’s personal need is a presumption of trade. According to the opinions of the Forensic Medicine Institute, the daily use limit for cannabis is accepted as an average of 1-1.5 grams, 3 times a day (total 3-4.5 grams). Amounts exceeding several months’ supply are considered within the scope of trade.
Variety: It is accepted that users generally possess a single type or similar effective substances; however, the simultaneous possession of different types of substances such as heroin, cocaine, cannabis, and amphetamine indicates a purpose of trade.
3. Conditions of Proof and the Principle of “Benefit of the Doubt”
In Supreme Court decisions, it is emphasized that for a conviction of drug trafficking, the crime must be proven with unquestionable certainty. In accordance with the principle of “In dubio pro reo” (the accused benefits from doubt):
The seized substance remaining within the limits of personal use in terms of quantity,
Absence of concrete, definite, and convincing evidence of sale (e.g., witness statement, record of apprehension in flagrante delicto),
When the defendant is determined to be a drug user through technical methods (urine/blood tests), the act is classified as the crime of “possession of drugs for personal use.” Abstract denunciations or evidence that does not exceed the limits of suspicion are not considered sufficient to prove the crime of trafficking.
4. Impact of Economic and Social Status
In some decisions, the disproportion between the defendant’s declared monthly income and the market value of the seized drugs has also been presented as a criterion. If a person whose financial situation is not suitable for purchasing drugs is found in possession of high-value substances, this is considered contrary to the ordinary course of life and can be interpreted as intent to traffic.
5. Conclusion
Judicial authorities rule under Article 188/3 of the Turkish Penal Code (TCK) if the quantity of the drug exceeds personal use limits or if the manner of seizure (packaging, presence of scales, etc.) supports commercial activity. Conversely, if the quantity is within personal use limits and there is no definitive evidence indicating intent to traffic, the defendant’s defense of “possession for personal use” is accepted, and proceedings are carried out under Article 191/1 of the TCK.
