Uyuşturucu Ticareti Suçunda (TCK m. 188) Ele Geçirilmeyen Madde, PTS Kayıtları ve “Birlikte Bulunma”nın İspat DeğeriDrug Trafficking Offences (TPC Art. 188): Unseized Substances, License Plate Recognition Records and the Evidentiary Weight of "Mere Presence"

1. The Object of the Offence: The Problem of Unseized Substances (TPC Art. 188/3)
Article 188/3 of the Turkish Penal Code (TPC) criminalizes alternative acts such as dispatching, transporting and storing narcotic or stimulant substances without, or contrary to, a licence. Each act requires a narcotic or stimulant substance as its object, and the perpetrator must know the nature of what is being carried. The Plenary Criminal Chamber of the Court of Cassation reversed a conviction because the substances mentioned in intercepted calls and in later-retracted statements had never been seized, and therefore could not be accepted as narcotic or stimulant substances (Yargıtay CGK, 22.03.2022, E. 2019/333, K. 2022/196). This argument weakens, however, if the alleged act is concretely linked to a substance seized elsewhere. Moreover, since acts under Article 188/3 are in practice usually treated as a single offence, the most realistic request against an unproven “shipment” allegation is a finding that the act is not established and cannot be taken into account in setting the base sentence (TPC Art. 61).

2. Search Procedure in Business Premises and Warehouses (CCP Art. 119/1)
Searches of homes, business premises and enclosed areas not open to the public may be carried out only by court order or, where delay would be prejudicial, on the written order of a public prosecutor; a written order of a police chief is not sufficient for such places (Code of Criminal Procedure Art. 119/1). If a warehouse search disregards these safeguards, the substances seized are unlawfully obtained evidence and cannot form the basis of a judgment (Constitution Art. 38/6; CCP Arts. 206/2-a and 217/2). The search and seizure report should therefore be the first document the defence reads.

3. License Plate Recognition and Cell-Site Records Show Location, Not Intent
A License Plate Recognition System (PTS) record shows that a vehicle passed a given point; a cell-site record shows that a phone line was in the area. Neither proves who was inside the vehicle or who knew of the offence. That said, the Plenary Criminal Chamber upheld a conviction where PTS and cell-site data, assessed together with other evidence, contradicted the route the defendant claimed to have taken (Yargıtay CGK, 18.02.2021, E. 2019/412, K. 2021/44). The dissent in the same decision stressed that travelling in the same vehicle as others, without knowledge of their offence, cannot prove participation. The practical lesson: facts that technical records can verify should not be denied, and the defence should be built consistently with those records.

4. Being in the Same Vehicle or Place Is Not, by Itself, Participation (TPC Art. 37)
Under settled case law, being with co-defendants in the vehicle, home or premises where the substance was seized does not establish participation in the offence unless other evidence removes all reasonable doubt (Yargıtay CGK, 06.12.2022, E. 2022/7, K. 2022/762; Yargıtay 8th Criminal Chamber, 23.10.2024, E. 2024/853, K. 2024/7941; Yargıtay 10th Criminal Chamber, 09.10.2023, E. 2023/5980, K. 2023/8441). The outcome differs where surveillance shows the defendant personally carrying the substance and this is corroborated by intercepted communications and incriminating statements (Yargıtay CGK, 18.04.2017, E. 2015/641, K. 2017/240). Scholarship likewise stresses that a refuted defence is not, on its own, evidence of guilt (Y. Çevik, The Nature of Proof in Turkish Criminal Procedure, doctoral thesis, Kırıkkale University, 2017, p. 305).

5. Aiding (TPC Art. 39), the Three-Person Aggravation (TPC Art. 188/5) and Medicinal Substances (TPC Arts. 188/6, 188/8)
A person who merely accompanies others, without taking part in procuring, transporting or sharing the substance, is at most an aider. In that case the sentence is halved and may not exceed eight years (TPC Art. 39/1), a decisive difference given the ten-year minimum under Article 188/3. The one-half aggravation under Article 188/5 requires the offence to be committed by three or more persons acting as joint perpetrators; instigators and aiders are not counted (Yargıtay CGK, 01.10.2025, E. 2025/140, K. 2025/369; V. Bolluk, master’s thesis, Marmara University, 2019, pp. 108-109). Under the same case law, however, joint perpetrators acting under a division of labour may each perform a different alternative act without precluding the aggravation, so the defendant’s participation in the common criminal intent must be separately proven. Where the substance is a medicine whose production requires official authorization or whose sale requires a prescription, the sentence may be reduced by up to one half (TPC Art. 188/6). Conversely, it is increased by one half if the offence is committed by a pharmacist, a health professional or a person engaged in the pharmaceutical trade (TPC Art. 188/8); this aggravation should be assessed only in respect of the person holding that status.