The offense of importing narcotic or psychotropic substances is one of the most severely sanctioned crimes under Article 188 of the Turkish Penal Code (TPC). This article examines in detail the material and mental elements of the offense, aggravated circumstances, and the criminal liability of transit passengers.
The offense of importing narcotic drugs is regulated under Article 188 of the Turkish Penal Code, titled “Manufacturing and Trafficking of Narcotic or Psychotropic Substances.” The legislator has structured manufacturing, importing, and exporting as alternative acts within a single offence rather than as separate crimes.
Importation, in its simplest definition, refers to bringing a narcotic or psychotropic substance into the sovereign territory of the Republic of Türkiye. This act is not merely a violation of customs regulations; it is considered a serious offence directly threatening public health and social order.
Within the systematic structure of drug-related crimes, the protected legal interest is primarily public health rather than merely public order. Accordingly, the offence is classified as an abstract endangerment crime; no actual harm needs to occur for criminal liability to arise.
Importation consists of bringing a narcotic substance into national territory. However, the critical question in criminal law is how “territory” should be interpreted.
According to prevailing doctrine and judicial practice, the sovereign territory of Türkiye includes:
Land borders,
Airspace,
Territorial waters.
Therefore:
Crossing a land border,
Entering Turkish airspace,
Entering Turkish territorial waters,
may be relevant in determining the commencement of the material element of the offence.
The offense of importing narcotic substances can only be committed intentionally.
In determining intent, courts typically evaluate:
The quantity of the substance,
The travel plan of the suspect,
Financial connections,
Communication records.
Particularly in cases involving quantities close to personal use limits, if there is no concrete evidence demonstrating an intention other than personal consumption, prosecution and sentencing should be conducted under Article 191 of the Turkish Penal Code (possession for personal use). The penalty for possessing narcotics for personal use is imprisonment for 2-5 years. If it is a first offense, alternative sanctions are more likely to be applied instead of imprisonment.
In this regard, the decision of the Court of Cassation, 9th Criminal Chamber, dated 29.03.2017, file no. 2017/240, decision no. 2017/761, serves as a precedent. The relevant part of the court decision is below.
" Upon reviewing the verdict against the defendant for the crime of importing narcotics, it was determined that: for the crime of importing narcotics to be constituted, the imported narcotics must be imported "for a purpose other than personal use," and since there is insufficient evidence to prove that the defendant imported the substances for a purpose other than personal use, the elements of the importation crime have not been met."
A person who unlawfully imports narcotic or psychotropic substances shall be sentenced to:
Imprisonment from 20 to 30 years,
Plus a judicial fine ranging from 2,000 to 20,000 day-fines.
These penalties rank among the most severe sanctions in the Turkish criminal justice system.
The sentence is increased by half if:
The substance involved is heroin, cocaine, morphine, base morphine, synthetic cannabinoids and their derivatives, synthetic cathinones and their derivatives, synthetic opioids and their derivatives, or amphetamine and its derivatives,
The offence is committed by three or more persons acting jointly,
The offender is a healthcare professional.
If the offence is committed within the framework of an organized criminal group established for the purpose of committing crimes, the penalty is increased by one fold.
Whether a suspect is a transit passenger is decisive in determining the legal classification of the offence.
The following situation is particularly critical:
If the passenger will not enter Türkiye, will not cross the customs line, and will not enter free circulation within the country, the offence of importation cannot be established.
For importation under Article 188/1 to occur, the narcotic substance must be brought into Türkiye with the intent of introducing it into the country. Mere physical presence in Turkish airspace is insufficient; there must be intent to incorporate the substance into Turkish territory.
In cases involving transit passengers:
Türkiye is not the final destination,
The substance is not intended to be placed on the Turkish market,
The passenger does not intend to enter free circulation,
Türkiye serves solely as a transfer point.
In such circumstances, the legal qualification should not be importation but rather transportation (Article 188/3 TPC).
Court of Cassation (Yargıtay), 20th Criminal Chamber, E. 2016/961, K. 2016/5310, 27 October 2016 decision is precedent on this situations. Relevant part of mentioned court decision is below.
" Upon examination of the incident report, passport and ticket records, and other documents and evidence contained in the case file, it has been determined that the defendant was on board a flight arriving at ...... Airport at 21:39 on 02/05/2015 from the city of .... in the country of ....; that he held a connecting ticket for a flight departing at 23:10 to ... / ...; and that he became ill during the flight arriving from São Paulo and was apprehended with narcotic substances, part of which were found in his hand luggage and the remainder subsequently detected in capsule form within his digestive system at the hospital.
In the absence of sufficient and convincing evidence demonstrating that the defendant intended to leave the narcotic substances in Türkiye or deliver them to another person within the country, it is understood that his conduct was in the nature of transit passage.
Accordingly, the act constitutes the offence of transportation of narcotic substances rather than importation. Therefore, while the defendant should have been convicted under Article 188/3 of the Turkish Penal Code No. 5237, the establishment of a judgment under Article 188/1 of the same Code for the offence of importation is erroneous."
The distinction between importation and transportation is crucial due to the significant difference in sentencing:
Importation: (Article 188/1) imprisonment starting from 20 years.
Transportation (Article 188/3): imprisonment starting from 10 years.
This classification directly affects the severity of the punishment.
The offense of importing narcotic or psychotropic substances under Article 188 of the Turkish Penal Code carries extremely severe penalties, including long-term imprisonment and substantial judicial fines. For this reason, the accurate legal classification of the alleged conduct is of critical importance. The distinction between drug importation, transportation (trafficking through transit), and possession for personal use directly determines the applicable sentencing range and the overall outcome of the case.
In cases involving transit passengers at Istanbul Airport or other international transfer points in Türkiye, the key legal question is whether the narcotic substance was intended to be introduced into the Turkish market or merely transported to a third country. If Türkiye is not the final destination, the customs line has not been crossed for domestic circulation, and there is no intent to distribute within the country, the offence of importation under Article 188/1 may not be established. Instead, the conduct may fall within the scope of transportation under Article 188/3, which carries a significantly different penalty regime.
Given the substantial difference between a sentence starting from 20 years for importation and one starting from 10 years for transportation, early and technically precise legal assessment is essential. Individuals detained at Turkish airports on suspicion of drug importation should seek immediate professional criminal defense assistance in order to ensure that the material facts, intent, and transit status are properly evaluated under Turkish criminal law.
For urgent cases involving drug-related arrests at Istanbul Airport or Sabiha Gökçen Airport, our law firm provides 24/7 legal assistance.
Att. Talha Taşdöğen Tasdogen & Partners