Investigation And Prosecution Phase In Drug Trafficking
INVESTIGATION PHASE
Since the crime of drug trafficking and its penalty is not a type of crime subject to complaint, the prosecutor initiates the investigation phase upon notification or spontaneously. The prosecutor, after obtaining information about the commission of the crime, will investigate and collect the evidence against and in favour of the suspect in this investigation. If the prosecutor finds sufficient evidence as a result of his/her investigation, he/she will file an indictment; otherwise, he/she will issue a decision of non-prosecution (non-prosecution). For the prosecutor to issue an indictment, there must be sufficient suspicion that the offence has been committed. The main reason for the requirement of sufficient suspicion is to prevent unnecessary prosecution of individuals.
If the prosecutor is convinced that there is sufficient evidence, he/she will issue an indictment. Otherwise, he/she will decide that there is no prosecution. Among the people, this decision is also called a decision of non-prosecution. In order for the prosecutor to issue an indictment, there must be sufficient suspicion that the offence has been committed. The reason for stipulating such a suspicion condition is that the workload of the judiciary should not be increased by unnecessary cases and people should not be tried unnecessarily.
PROSECUTION PHASE
Following the completion of the investigation phase by issuing an indictment and filing a public lawsuit, the existence of a criminal case is mentioned and the prosecution phase has begun. In other words, the prosecution phase begins with the acceptance or deemed acceptance of the indictment. Different phases can be mentioned within the prosecution; trial preparation, trial, judgement and remedy are among these phases. After the completion of the investigation, the prosecution phase of the offence of force will be carried out and the final penalty to be imposed on the perpetrator will be determined at the end of the prosecution phase.
Criminal courts will be in charge during the prosecution phase. The prosecution phase is the final phase. At the end of the prosecution phase, the penalty to be imposed on the perpetrator is decided. If the defendant is found not guilty, he/she will be acquitted. In order to obtain an acquittal in the offence of drug trafficking, all details of the file must be meticulously examined.
DETENTION AND ARREST
A detention order is a decision by the police or gendarmerie to temporarily restrict the freedom of the suspect with the decision of the prosecutor. A judge’s decision is not required for a detention order. Detention starts at the moment the person’s freedom is restricted. Therefore, the detention period actually starts when the suspect is arrested. Article 91 of the Code of Criminal Procedure contains regulations on detention. According to the relevant article, the detention period cannot exceed 24 hours from the moment of arrest. Detention depends on the necessity of this measure for the investigation and the existence of concrete evidence indicating the suspicion that the person has committed an offence. According to this regulation in the Code of Criminal Procedure, the suspect may be detained with the decision of the public prosecutor in the offence of manufacturing and trafficking in drugs or stimulants.
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Arrest warrant is regulated as the most severe protection measure in the Code of Criminal Procedure. Arrest warrant is a temporary protection measure like detention warrant. Article 100 of the Code of Criminal Procedure stipulates that an arrest warrant may be issued for a suspect or defendant during the investigation or prosecution phase if there is concrete evidence indicating the existence of strong criminal suspicion and a reason for arrest.
However, the arrest decision to be made must be proportionate to the expected punishment and the importance of the case. The main thing in criminal proceedings is to continue the investigation or prosecution of the defendant or suspect without arrest. Therefore, arrest is always an exceptional protection measure. Arrest cannot be ordered for offences that require only a judicial fine or for offences with an upper limit of imprisonment of no more than two years, except for those committed deliberately against bodily immunity. In this respect, if there is concrete evidence to raise strong suspicion that the offence of drug trafficking has been committed, an arrest warrant may be issued against the perpetrator.
DURATION OF COMPLAINT, STATUTE OF LIMITATIONS, RECONCILIATION, EFFECTIVE REMORSE AND THE COURT IN CHARGE
COMPLAINT PERIOD AND STATUTE OF LIMITATIONS
Crimes whose prosecution is subject to complaint; It is the name given to the crimes that, although it is clearly shown in the Turkish Criminal Code No. 5237 and special laws, the investigation or prosecution of a crime depends on the victim of the crime or the persons who are damaged by the crime to file a complaint. However, the Law does not include the offences of manufacture and trafficking of drugs or stimulants among the offences subject to complaint. In these offences, the investigation is carried out ex officio by the prosecutor’s office.
RECONCILIATION IN DRUG TRAFFICKING OFFENCE
Reconciliation in criminal law is regulated in Articles 253 and 254 of the Code of Criminal Procedure. It is the termination of the criminal proceedings as a result of the agreement of the victim of the crime with the suspect of the crime. Reconciliation negotiations and reconciliation agreement can be made both at the investigation stage and at the prosecution stage, if there are conditions. Reconciliation is not a waiver of complaint. It is not subject to reconciliation because it is not one of the crimes regulated within the scope of reconciliation in the crime of manufacturing and trading drugs or stimulants.
EFFECTIVE REMORSE IN DRUG TRAFFICKING OFFENCE
Effective remorse is an institution regulated in the Turkish Criminal Code that leads to personal impunity or a reduction in punishment. Effective remorse provisions are not regulated for every type of offence in the Turkish Criminal Code. The effective remorse provisions foreseen for some types of offences are a legal institution that can only be applied in terms of the types of offences regulated in accordance with the principle of legality. Article 192 of the Turkish Penal Code Article 192 of the Turkish Penal Code regulates effective remorse provisions in the offence of manufacturing and trafficking in drugs or stimulants.
According to the aforementioned provision of the law, if the person who has participated in the offences of manufacturing and trafficking in drugs or stimulants informs the authority of other accomplices and the places where drugs or stimulants are stored or manufactured before being notified by the official authorities, if the information provided enables the arrest of the accomplices or the seizure of drugs or stimulants, no penalty shall be imposed on him.
COURT IN CHARGE IN DRUG TRAFFICKING OFFENCE
The court in charge of drug offences is the Assize Court. The competent court for the crimes of manufacturing, importing and exporting narcotic substances regulated in paragraph 1 of Article 188 of the TCC is the court “in the place where the crime is committed” as stated in Article 12 of the Code of Criminal Procedure, except in the case where the crimes of manufacturing, importing and exporting narcotic substances regulated in paragraph 5 are committed within the framework of the activities of an organisation formed to commit a crime.
In the event that these crimes are committed within the framework of the activities of an organisation (Article 188/5 of the TPC), according to subparagraph a of paragraph 1 of Article 250 of the Code of Criminal Procedure, the competent court shall be the heavy penal courts to be assigned by the Supreme Council of Judges and Prosecutors upon the proposal of the Ministry of Justice in the provinces whose jurisdiction will be determined to cover more than one province.
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