Differences Between Drug Trafficking and Possession for Personal Use
In drug-related cases, there is a significant difference in the penalties and resulting deprivation of rights between the offense of drug trafficking and possession of drugs for personal use. Therefore, in the light of decisions by the Supreme Court (Yargıtay) and regional appellate courts, I will provide a few examples of defenses and important points to consider. Defense in drug trafficking cases requires technical expertise, specialization, and experience. The following decisions contain thousands of examples of nuances that should be paid attention to.

1. The number of different types of seized drugs alone does not establish intent for trafficking
One common issue in drug trafficking cases is determining intent when the number of drug types is high, but the total quantity is low. The Supreme Court’s General Criminal Assembly holds that a maximum of one or two types of drugs with similar effects may be possessed for personal use.

Many lower courts assume that if three or more different drugs are seized, the mere variety indicates intent to traffic. However, this does not reflect current realities, as frequent users may possess 4 or 5 different types for personal consumption. The Supreme Court has emphasized that even if the number of drug types is high, if the quantities are within personal use limits, there is no trafficking intent.

Supreme Court, 10th Criminal Chamber, 12.03.2025, Case No. 2019/4399 E., 2025/2757 K.:
A preliminary review determined that the conviction could be appealed and the appellant had the right and authority to appeal. The record shows that the defendant left a bag in front of a coffeehouse containing 7.1 grams of cannabis, 2 grams of synthetic cannabinoids (Bonzai), and 6 pills containing amphetamine and methamphetamine. Although the drugs were of various types, the quantities were within personal use limits, there was no evidence of trafficking, no toxicology report existed, and the defendant claimed the drugs were for personal use. Therefore, there was no conclusive and credible evidence that the defendant intended to traffic drugs. The court failed to recognize that the act constituted possession of drugs for personal use under Article 191 of the Turkish Penal Code (TCK), and wrongly convicted the defendant of trafficking. The Supreme Court annulled the conviction and returned the case to the lower court.

2. Bringing a vacuum machine used for packaging drugs constitutes assistance, not principal perpetration
Certain acts in drug trafficking are considered assistance under TCK Article 39, not as the principal act under TCK Article 37/1. Examples include:

• Facilitating communication between buyers and sellers (e.g., sharing phone numbers, arranging meetings).
• Driving vehicles for traffickers.
• Helping rent vehicles for trafficking purposes.
• Serving as a driver in a lead vehicle for transport.
• Allowing drugs to be weighed on another defendant’s scales.
• Bringing a vacuum machine for packaging drugs.
• Acting as a lookout during drug transport.

Why is it important if the act is considered assistance?
If the defendant is only assisting, Article 39 of TCK allows a 1/2 reduction of the sentence, with a maximum of 8 years. Also, Article 188/5 of TCK does not apply.

3. Taking statements from the buyer as “person providing information” is unlawful
In many drug trafficking cases, the purchaser of drugs is interviewed by police under the status of “person providing information.” The Supreme Court (10th Criminal Chamber, 13.03.2023, 2021/7640 E., 2023/2123 K.) ruled that this practice is unlawful, and such statements cannot be used as evidence. Interviewing a person under suspicion without reminding them of their rights violates Article 38/5 of the Constitution, the right against self-incrimination.

4. Purity ratio must be considered when assessing personal use limits
When evaluating whether seized drugs exceed personal use limits, the purity of the substance must be considered. For example, 52 grams of cocaine with 22 grams of pure content constitutes personal use unless other evidence indicates trafficking. Additional laboratory analysis is required if purity is not reported. (Adana Regional Court of Appeal, 5th Criminal Chamber, 05.03.2020, 2020/522 E., 2020/434 K.)

5. Drugs found near the suspect without direct observation by police cannot automatically be attributed to the suspect
In cases where suspects are chased and caught, drugs found nearby cannot be automatically considered theirs if police did not directly witness the suspect discarding the drugs. Such assumption violates the principle of “benefit of the doubt” (Supreme Court, 10th Criminal Chamber, 17.01.2023, 2021/3512 E., 2023/297 K.)

6. Not every scale is a precision scale
Although the presence of a precision scale may be important, if its sensitivity is disputed, it must be verified through investigation. A non-precision scale alone cannot establish trafficking, especially if the seized drugs are within personal use limits. (Supreme Court, 20th Criminal Chamber, 12.09.2018, 2018/2230 E., 2018/3443 K.)

7. Examination of a phone without court order, even with consent, is unlawful
Evidence obtained from examining a suspect’s phone without a CMK Article 134 decision is inadmissible. (Supreme Court, 10th Criminal Chamber, 07.05.2025, 2025/1446 E., 2025/5295 K.)

8. Voluntary delivery of drugs without a search warrant constitutes active repentance
If a suspect voluntarily hands over drugs to police without a search warrant, active repentance provisions should apply. (Supreme Court Criminal General Assembly, 20.12.2018, 2016/1014 E., 2018/664 K.)

9. Criteria for conviction in drug trafficking cases
When a suspect is caught with synthetic cannabinoids in 13 separate packets, with each packet containing roughly the same amount, and the suspect is apprehended on a motorcycle at night with a friend, the claim that the drugs were for personal use cannot be accepted. Possession for trafficking purposes is presumed. (Criminal General Assembly, 19.02.2019, 972-114)

 

10. Criteria for Conviction in Drug Trafficking Cases
When a suspect is caught with synthetic cannabinoids in 13 separate packages, each containing approximately the same amount, and is apprehended on the street at night riding a motorcycle with a friend (M.), the defense that the drugs were purchased for personal use cannot be accepted. Possession for the purpose of trafficking is presumed. (Criminal General Assembly, 19.02.2019, 972-114)

11. Only intelligence information and a precision scale are not sufficient for a conviction
The Supreme Court, 8th Criminal Chamber, held that mere intelligence reports and the presence of a precision scale in the residence are not sufficient to prove drug trafficking. (19.03.2025, 2024/7227 E., 2025/2274 K.)

12. A non-functioning scale is not a scale; a precision scale must be operational and checked for contamination
Supreme Court, 20th Criminal Chamber, 03.06.2020, 2020/1669 E., 2020/2438 K.:

• The total weight of the substances (43.5 g and 7.3 g of methamphetamine) differed from the weigh-in report (6 g and 0.5 g), yet this discrepancy was not considered in the judgment.
• The criminal report indicated the presence of methamphetamine and cocaine, but the exact amounts were not specified; thus, the substances should have been sent back for detailed analysis.
• The operational status of precision scales found in the residence, as well as whether they were contaminated with drugs, must be verified before evaluating the legal responsibility of the defendants.

The conviction was annulled due to these legal errors, and the case was returned to Bakırköy 17th High Criminal Court.

13. No conviction without a lawful search warrant
A search conducted without a valid judicial warrant is unlawful, and evidence obtained cannot be used for conviction. (Supreme Court, 10th Criminal Chamber, 2021/4326 E., 2022/9409 K.)

14. Undercover investigators cannot incite the suspect to commit a crime
If an undercover agent encourages the suspect to commit a drug offense, evidence is unlawful and cannot support a conviction. (Supreme Court, 10th Criminal Chamber, 13.03.2023, 2021/15492 E., 2023/2074 K.)

15. No sufficient evidence against the sender in courier drug cases
In cases involving drugs sent by courier, if only the receiver accepts the drugs and there is no other conclusive evidence against the sender, the sender must be acquitted. (Supreme Court, 10th Criminal Chamber, 2021/9611 K.)

16. Tape recordings added to the file after conviction require examination in court
If tape recordings are submitted after the conviction, they must be played in court, and, if necessary, expert analysis of voice matching must be conducted before a conviction can be based on them. (Supreme Court, 10th Criminal Chamber, 2021/10397 K.)

17. Acquittal required if no drugs are found on the suspect and other evidence is insufficient
If no drugs are seized from the suspect, and other suspects’ statements are contradictory or mobile phone records are unclear, there is insufficient evidence for conviction, and acquittal is required. (Supreme Court, 10th Criminal Chamber, 2022/4522 K.)

18. Voluntary delivery of drugs without a search warrant constitutes active repentance
If a suspect voluntarily hands over drugs without a search warrant, active repentance provisions should apply:

• In a case dated 03.07.2017, during a routine frisk, the suspect voluntarily handed over drugs from a hidden location on his body.
• Since no judicial search warrant existed, the suspect’s voluntary submission activates the active repentance provisions under Article 192/3 of TCK. (Supreme Court, 20th Criminal Chamber, 2018/2251 E., 2018/3445 K.)

19. Providing an address not listed in the search warrant constitutes active repentance
If a suspect caught with drugs voluntarily provides the address of a residence not listed in the tip-off, allowing authorities to conduct a search at that location, and drugs or stimulants exceeding personal use limits are found, active repentance provisions should be applied.

In practice, when suspects caught outside with drugs are considered potential drug traffickers, authorities often conduct residence searches, discovering larger quantities of drugs or materials indicating trafficking (precision scales, packaging materials, etc.). If the report explicitly states that the suspect provided the address, active repentance should be requested from the court. If it is unclear how the authorities identified the address, the possible methods of detection should be considered; if the suspect is the only source, active repentance applies.

20. Penal reduction should apply to trafficking of prescription drugs like Lyrica or Gerica
According to Istanbul BAM, 5th Criminal Chamber, 11.03.2020, 2019/2389 E., 2020/617 K.:

• The trade of prescription drugs with narcotic effects (e.g., Lyrica, Gerica) falls under Article 188 of the Turkish Penal Code regarding drug trafficking.
• The penalty can be reduced by up to half. (TCK 188/6)
• Supreme Court, 8th Criminal Chamber, 2024/8458 E., 2024/5393 K.

21. No vehicle search without a search warrant. Evidence obtained unlawfully requires acquittal
Seizing drugs in a vehicle hidden in a sealed bag and not visible from outside based on a preventive search order is unlawful. (Supreme Court, 10th Criminal Chamber, 2021/108 E., 2022/10856 K.)

22. Digital devices cannot be examined without a CMK 134 warrant, even in flagrante delicto cases

• In investigations of drug trafficking, the first suspect’s phone is often accessed, and messages read, or calls answered to reach other suspects, unlawfully expanding the investigation.
• Any action on a suspect’s phone without a CMK 134/1 warrant renders subsequent evidence unlawful, even if a flagrante delicto situation exists.

Supreme Court, 10th Criminal Chamber, 08.06.2022, 2020/18813 E., 2022/7392 K.:
a) Authorities cannot unlock a suspect’s phone or expand the investigation without informing the public prosecutor.
b) Even with suspect consent, authorities cannot examine or record the phone’s content.
c) Unlawful access violates Article 8/1 of the ECHR, protecting privacy and correspondence.

23. Drugs seized without a judicial search warrant are unlawful. Acquittal is required
According to the Supreme Court, 8th Criminal Chamber, 26.03.2024, 2024/2242 E., 2024/2730 K.:

• Drugs obtained from a passenger in a commercial taxi without a search warrant via a frisk are unlawful evidence, and acquittal must be granted.
• If drugs in underwear are voluntarily surrendered, active repentance provisions apply.

 

24- Voluntary surrender under coercion is not valid. Without a search warrant, conviction cannot occur; acquittal must be granted.
In cases requiring a judicial search warrant, if the defendant hands over drugs to law enforcement under the pressure of potential criminal liability without such a warrant, this cannot be considered a true voluntary surrender. Therefore, the evidence obtained cannot be used in the verdict, and the defendant must be acquitted. (Supreme Court, 10th Criminal Chamber, E. 2024/677, K. 2024/792)

25- Voluntary surrender under coercion is unlawful. Without a search warrant, "voluntary surrender" does not apply. If there is no other evidence, acquittal must be granted.
In an incident on 23.03.2018, following physical surveillance of a defendant whose identity was known under a communication monitoring order and who was strongly suspected of drug trafficking, the defendant was seen getting off a vehicle of users ... and ..., and during a body check after a “prevention search order” was read, the defendant removed two packages from his wallet and stated they contained drugs, surrendering them voluntarily. In this case, because a judicial search was required, the search based on a prevention order was unlawful. The evidence obtained from this cannot be used in the verdict. Since there was no other sufficient evidence, convicting the defendant instead of acquitting them was deemed unlawful. (Supreme Court, 10th Criminal Chamber, 21.06.2023, E. 2022/3830, K. 2023/5837)

26- The mere presence of a precision scale during a search is insufficient for conviction.
A precision scale contaminated with drugs found with the defendant does not automatically prove involvement in drug trafficking.

If the drugs contaminating the scale are different from the drugs seized from the defendant, and the defendant claims they used the scale solely to weigh drugs for personal use, and the drugs found match those indicated in urine tests, then the defendant must be acquitted. (Supreme Court, 8th Criminal Chamber, 05.03.2025, E. 2024/5215, K. 2025/1759)

27- Voluntary surrender under coercion is unlawful. Without a search warrant, "voluntary surrender" does not apply. If there is no other evidence, acquittal must be granted.
In cases requiring a judicial search, if the defendant hands over drugs under coercion without a warrant, this is not a true voluntary surrender. Evidence obtained under these circumstances cannot be used in the verdict. Since no other sufficient evidence exists, convicting the defendant instead of acquitting them is unlawful. (Supreme Court, 10th Criminal Chamber, 21.06.2023, E. 2022/3830, K. 2023/5837)

28- The mere fact that drugs are concealed does not automatically indicate drug trafficking.
In a search of the defendant’s residence, law enforcement found 216.4 grams of plant material hidden under a table leg, 7.2 grams in a jar, and plant material prepared for consumption on a shelf. According to expert analysis, the cannabis that could be produced from this plant material amounted to 154.72 grams, and urine tests showed the defendant used amphetamine and cannabis.

There was no clear and convincing evidence that the defendant possessed the drugs for sale or distribution rather than for personal use. Without considering that the act may constitute "possession of drugs for personal use" under Article 191 of the Turkish Penal Code (TCK), convicting the defendant for drug trafficking was legally incorrect. (Supreme Court, 10th Criminal Chamber, E. 2022/2150, K. 2024/17220)

 

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