Uyuşturucu veya Uyarıcı Madde Kullanılmasını Özendirme Suçu (TCK m. 190/2)
Uyuşturucu ve uyarıcı maddeler, kullanımı sonucunda doğrudan sinir sistemine etki eden, bireyde fiziksel ve psikolojik bağımlılık meydana getirmek suretiyle bireyi ve içinde bulunduğu toplumu iktisadi, sosyal ve ahlaki açıdan tedavisi zor çöküntülere sürükleyen maddelerdir. Bu maddelerin mezkûr etkilerinin toplumun genel sağlığına karşı büyük bir tehdit oluşturması ise, bu konuda hukuki düzenlemeler oluşturulmasını gerektirmiş, neticede uyuşturucu ve uyarıcı maddeler ceza hukukunun konusuna girmiş ve bu maddelere ilişkin çeşitli suçlar ihdas edilmiştir. 5237 sayılı Türk Ceza Kanunu’nun 190 ıncı maddesinin 2 nci fıkrasında bu maddelerin kullanımının alenen özendirilmesi de suç sayılmış olup bu düzenleme ile öngörülen yaptırımların tatbiki, hukuk camiasında ve kamuoyunda genel sağlığın cezai korunumu ile temel hak ve hürriyetlerin sınırlandırılması bağlamında çeşitli tartışmalara yol açmaktadır. Bu çalışmada öncelikle uyuşturucu veya uyarıcı madde kullanılmasını özendirme suçu, ilgili kanun maddeleri ışığında incelenmiş, ardından ilgili anayasal hükümler, güncel mahkeme kararları ve mukayeseli hukuka ilişkin veriler gözetilerek mezkûr tartışmalar değerlendirilmiş, nihayetinde ise tüm bu düzenlemelerin tatbikinden doğan sorunlar tespit edilerek olası çözüm yolları önerilmiştir.
Crime of Inciting the Use of Narcotic or Pyschotropic Substances
Narcotic and psychotropic substances are stuffs that direct affect on the nervous system; drag to user and all society into the economic, social and moral collapses that difficult to cure, by creating physical and psychological addiction. The fact that the effects of these substances contained a major threat to the public health and it required the establishment of legal regulations on this issue. Therefore, narcotic and psychotropic substances were entered the criminal law’s theme and various criminal offences have been introduced about them. According to the Turkish Criminal Code No. 5237, Article 190/2; inciting the use of these substances is considered a crime and imposed sanctions on this crime type leads to some discussions about “penal protection of public health” and “fundamental rights and freedoms” in public and law communities. First, in this study “offence of inciting the use of narcotic or pyschotropic substances” have been examined with framework of related law articles; then, mentioned above discussions were evaluated with related constitutional provisions, actual court decisions and informations about comparative law. Finally; substantive and procedural problems arising from the application of these rules were identified and possible solutions were proposed in this study
Narcotic and psychotropic substances are natural or synthetic substances that produce drowsiness or stimulant effects in the user’s central nervous system, which have intoxicating, enjoyment, passion and alertness, driving effects and creating a two-way dependency on the user as psychological and physical. The fact that the effects of these substances contained a major threat to the public health and it required the establishment of legal regulations on this issue. Therefore, narcotic and psychotropic substances were entered the criminal law’s theme and various criminal offenses have been introduced about them. According to the Turkish Criminal Code No. 5237, Article 190/2; inciting the use of these substances is considered a crime. The protected legal value within arranging this crime type is general health of society. Crime of inciting the use of narcotic or psychotropic substances is an inchoate offense that can be committed by electoral acts. These electoral acts counted in TCC as “inciting publicly” and “incentive boradcast”. In order for the crime to occur, it is sufficient that one of these acts is performed and any result isn’t sought. At this point, it is important to correctly identify the concepts of “publicity” and “incitement” and to determine the correct distinction between “incitement” and “encouragement”. In terms of offender, anyone who carries out the electoral movements in the regulation for the perpetrator can be the perpetrators of this crime. However, qualified version of this crime, that regulated in third paragraph, was specific to some persons. In terms of the victim, there is no concrete victim and all individuals who make up the society have the title of victim. Crime of inciting the use of narcotic or psychotropic substances can be committed intentionally in terms of the intangible element. In order to be able to talk about the occurrence of the intent, the perpetrator must knowingly and willingly execute the act of incitement. The intent element sought here refers to the general intent. In addition, this crime can be commit with probable intent but can’t be commit with negligance. The act must be illegal too in that crime type as in every offense. However, there are different appearance formats of justification reason compliance with “the use of right”. In this context, some justification reasons be able to come up as the “performance of the job”, “the right of notification”, “freedom of thought and expression”, “freedom of science and art”. At this point, due to their great importance, fundamental rights and freedoms, the balance between liberty and authority and social media that make people the active element of media are also especially emphasized in this study. Crime of inciting the use of narcotic or psychotropic substances is an inchoate offense and if the act is executed in such a way that it can be divided into sections, it may become suitable for the criminal attempt within special forms of crime. All forms of complicity are possible in this offense and there is no property about it. Conserning the joinder of offenses, it’s possible to commit the crime successively and it can be found that the provisions of conceptual aggregation can be applied in cases where there is a different crime other than this one. The follow-up type of the crime of inciting the use of narcotic or psychotropic substances is ex officio. The competent court is the penal court of general jurisdiction. The authorized court, as a rule, is the place where the crime was committed. However, if the crime is committed by broadcast or publication, the authorized court will vary according to the attribute of the concrete incident. The sanction of the crime has been increased with various changes after a very short period of time from the entry into force and crime of inciting the use of narcotic or psychotropic substances has been imposed with “imprisonment for five to ten years and judicial fine from a thousand to ten thousand days”. However, it should be stated that this sanction, which is quite severe compared to the injustice content of the crime, is contrary to the principle of proportional punishment and that this situation does not have a side that can be explained by the criminal policy. Consequently, it is possible to say that even if the crime of inciting the use of narcotic or psychotropic substances is still a new type of crime, it will increase its importance. Implementation of sanctions foreseen by this regulation, many controversies have occurred in the context of the criminal protection of general health and the limitation of fundamental rights and freedoms already. This study has been written by considering the need to discuss these issues in a scientific perspective. In this context, in the study, the elements of the crime of inciting the use of narcotic or psychotropic substances, the special appearance of the crime were examined and the limits of freedom of expression and the freedom of science and art, which constitute the reason of compliance with this law type, were tried to be evaluated.
