Does using prescription drugs sold with a green prescription without a prescription constitute the offense of "Buying, Accepting, or Possessing Drugs for Use or Using Narcotic or Stimulant Substances"?
LEGAL REGULATION - TURKISH PENAL CODE: Article 191
Purchase, Receipt or Possession of Narcotics or Psychotropic Substances for Personal Use or Use of Narcotics or Psychotropic Substances
Article 191 (Amended on 18/6/2014 - By Article 68 of the Law no. 6545)
(1) Any person who purchases, receives or possesses narcotics or psychotropic substances for personal use or uses narcotics or psychotropic substances shall be sentenced to a penalty of imprisonment for a term of two to five years.
(2) In respect of any suspect subject to investigation initiated as a result of this offence, the court decides suspension of opening of the criminal case for five years irrespective of the conditions set out in Article 171 of the Code of Criminal Procedure dated 4/12/2004 and no. 5271. The public prosecutor, in such case, warns the suspect of the consequences to occur if he does not act in accordance with the obligations imposed on him in the course of the suspension period or contravenes prohibitions.
(3) In the course of suspension period, a probationary measure shall be applied for at least one year in respect of the suspect. This period may be extended by the public prosecutor’s decision for, at most, one year in periods of three months. The person in respect of whom a probationary measure is applied shall also be subject to treatment within this period if found necessary.
(4) A criminal action shall be brought against the person in the event that he, in the course of the suspension period,
a) insists on not complying with the obligations imposed on him or requirements of the treatment applied,
b) purchases, receives or possesses narcotics or psychotropic substances with the intention of re-using the same,
c) uses narcotics or psychotropic substances.
(5) Purchase, receipt and possession or use of narcotics or psychotropic substances by the offender in the course of the suspension period shall be considered as a ground for breach pursuant to paragraph four and shall not be subject to any separate investigation and prosecution.
(6) In respect of investigations initiated, with the allegation of re-commission of the offence defined in paragraph one, after initiation of a criminal action pursuant to paragraph four, the court shall not decide to suspend initiation of a criminal action pursuant to paragraph two.
(7) A decision to discontinue the criminal proceedings shall be taken where an offender complies with the requirements specified in paragraph four and does not contravene the prohibitions during the suspension period.
(8) At the stage of prosecution carried out in respect of the offences
(a) production and trade of narcotics or psychotropic substances specified in Article 188 of this Law,
(b) facilitating use of narcotics or psychotropic substances specified in Article 190 of this Law, if it is established that this offence exclusively falls into the scope of this Article, the court shall, within the scope of this article, decide to suspend the pronouncement of the decision in respect of the offender.
(9) Unless otherwise provided herein, provisions of Article 171 and Article 231 which are respectively concerning suspension of initiation of criminal actions and suspension of pronouncement of judgment shall be applied.
(10) (Addition on 27/3/2015 – By Article 12 of the Law no. 6638) Where the acts specified in the third paragraph are performed in collective buildings and facilities used for treatment, educational, military and social purposes such as school, dormitory, hospital, barrack or place of worship and in public places or places open to public at a distance of less than two hundred meters from their boundaries established by the surrounding wall, wire fence or similar barriers or signs, the penalty to be imposed shall be increased by one half.
RELATING JUDICIAL DECISIONS:
SUPREME COURT 10th CRIMINAL CHAMBER 2020/8701 E., 2021/2419 K.:
According to the report dated 05/06/2013 by the Forensic Medicine Institution Bursa Group Presidency Chemistry Specialization Department, it was found that "alprazolam" was present in the defendant's blood. The defendant stated in his defense that he bought Xanax pills, the name of which he could not remember exactly, from the other defendant. It was ruled that the defendant was convicted instead of acquitted of the alleged crime, despite the fact that the substance "alprazolam", the active ingredient of Xanax, sold with a green prescription, would not constitute a crime if possessed for the purpose of use. Therefore, the objections of the defendant are valid, and the decision is to be OVERTURNED,...
SUPREME COURT 10th CRIMINAL CHAMBER 2015/1939 E., 2018/9691 K.:
It was observed that 94 tablets found on the defendant were prescription drugs sold with a green prescription, 18 tablets were prescription drugs sold with a green prescription, and 27 tablets were prescription drugs sold with a green prescription. It was found that the possession of this substance for the purpose of use would not constitute a crime, and it was not determined by technical methods that the defendant used narcotic substances. Despite these factors, the defendant was convicted of the alleged crime instead of being acquitted, which is against the law. Therefore, the objections of the defendant are valid, and the decision is to be OVERTURNED,...
SUPREME COURT 9th CRIMINAL CHAMBER 2015/3360 E., 2016/6258 K.:
It was established that the tablets found on the defendant were pills sold with a green prescription, and it was not possible to consider prescription drugs as narcotics or stimulants...