FAIL
As a rule, anyone can be the perpetrator of the offence of drug trafficking. The Law does not require any qualifications in order to be the perpetrator of these offences. However, if this offence is committed within the framework of the activities of an organisation, the penalty to be imposed on the perpetrator is increased.
On the other hand, although the perpetrator of drug and stimulant offences can be anyone, the commission of this offence by certain persons is foreseen as a reason for increasing the penalty. As a matter of fact, in Article 188/8 of the TPC, the commission of this offence by a physician, pharmacist, dentist, chemist, veterinarian, health officer, laborant, midwife, nurse, dental technician, nurse, health care provider, person engaged in chemistry or pharmaceutical trade is accepted as a qualified element of these offences in terms of person.
VICTIM
The victim is the person or persons directly affected by the act constituting the offence. In other words, the victim is the owner of the legal interests protected by the criminal norm and violated by the offence, i.e. the legal subject of the offence. The victim of this offence is the whole society. In fact, this society is not only a society living in a country, people living in other countries are also victims of this crime. Therefore, it would not be wrong to say that the victim of these crimes is the whole humanity.
LEGAL SUBJECT OF THE OFFENCE
The legal subject of drug trafficking offences is the drug or stimulant substance itself. Although the narcotic or stimulant substance specified in the types of offences in Articles 188, 190 and 191 of the TPC are essentially the same, the text of all three articles does not explain what should be understood from narcotic or stimulant substance, and there is no definition of narcotic or stimulant substance among the definitions in Article 6 of the TPC.
This issue is explicitly mentioned in the justification of Article 188 of the TPC. According to this; “What constitutes narcotic or stimulant substances is not defined here, nor is it attempted to show them one by one. The reason for this is to ensure a strong social defence by sanctioning the abuse of drugs or stimulants and drugs and synthetics that have the same effect. Thus, as psychotropic substances, all substances that have the effect of drugs or stimulants and cause addiction in people will constitute the subject of this offence”.
ACT
Offences that can be committed with one of the actions shown as alternatives of each other are called “optional offences”. It is sufficient to perform one of the actions specified in the law; it is not necessary to perform all of them. As a matter of fact, the offence of drug trafficking under Article 188 of the TPC is also regulated as an optional offence. In this respect, it is possible to commit this offence by performing any of the following two groups of actions:
Manufacturing, importing or exporting drugs or stimulants without a licence or in violation of the licence,
Selling, offering for sale, giving, transferring, transporting, storing, purchasing, accepting, possessing narcotic drugs or stimulants within the country without a licence or in violation of a licence.
SPIRITUAL ELEMENT
In criminal law, the moral element expresses the link between the act committed and the perpetrator. Therefore, it determines whether the offence is committed with intent or negligence. The offences of manufacturing, exporting and importing narcotic drugs are among the offences committed intentionally. Since the intention expressed here is general intention, the perpetrator must know that the substance subject to the act is a narcotic substance and must knowingly and willingly perform the acts specified in the law.
The law does not specifically regulate the negligent form of the offences of manufacturing, exporting and importing narcotic substances. Therefore, it is not possible to commit the offence of drug trafficking with negligence.
QUALITATIVE ELEMENTS
Situations that are added to the basic form of the offence and require an increase or reduction of the penalty are called qualified forms of the offence. In such cases, an additional action, an element will arise in addition to the simple form of the offence specified in the law. The aggravating circumstances of the offence of drug trafficking are regulated in Article 188/3 et seq. of the TPC. According to this
Drugs or stimulants are heroin, cocaine, morphine, synthetic cannabinoids and their derivatives or base morphine (TPC Article 188/4-a)
Committing the crimes of manufacture and trafficking of narcotic drugs or stimulants within the framework of the activities of an organisation formed to commit a crime (TPC Art. 188/6)
The acts within the scope of drug trafficking are committed in public or public places within a distance of more than two hundred metres from the buildings and facilities where people gather for treatment, education, military and social purposes and their borders (TPC Art. 188/4-b)
The person to whom drugs or stimulants are given or sold is a child (TPC Art. 188/3)
The offences of manufacture and trafficking of narcotic drugs or stimulants committed by three or more persons together (TPC Art.188/5)
The commission of the offences of manufacturing and trafficking in narcotic drugs or stimulants by a person who provides health services, is engaged in chemistry or pharmaceutical trade (Article 188/8 of the TPC) is foreseen as aggravating circumstances.
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