Growing cannabis in Türkiye, and why it is charged separately.

Two different pieces of legislation are in play. Using or possessing cannabis is dealt with by the Penal Code. Growing it is not. Cultivation sits in Law no. 2313 on the control of narcotic substances, and it carries its own sentence.

Article 3 of that Law prohibits growing cannabis solely for the purpose of making esrar, and prohibits the preparation, import, export and sale of esrar in any form whatsoever. Article 23 states that growing cannabis without permission is forbidden whatever the purpose. Licensed hemp cultivation does exist — for fibre, seed and stalk, and for medicinal, health, personal care and support products — but it runs through the Ministry of Agriculture and Forestry, and on the medicinal side through the Turkish Grain Board. It is a permit regime, not a private choice.

What the article carries

The Law also defines what growing means: the process from the sowing of the seed into the soil until the harvest of the crop. Nothing in the article turns on the number of plants. There is no quantity below which a few pots stop being cultivation, and the fact that a region permits licensed hemp makes no difference — growing for esrar is prohibited absolutely.

Both sentences in the fifth paragraph describe the same physical act. What separates four to twelve years from one to three is purpose, and purpose is a finding about your intention made from the contents of the file.

The Court of Cassation's case-law sets out what is to be weighed, expressly as a non-exhaustive list:

• whether the grower took any step towards selling, transferring or supplying what the crop would produce, and whether there is any admission on that point;
• the number of roots, the place of cultivation, and the size and present condition of the plants;
• the quantity of esrar obtainable from them, and whether that quantity is capable of supporting a supply charge;
• whether harvested plants were found alongside the standing ones, and how much those would produce;
• where a supply prosecution was also brought, whether it was made out or reduced to possession for use;
• whether the grower's blood or urine tested positive.

The reasoning that gets rejected

The assessment is made on the situation at the date of the offence — the plants as they were found and the esrar obtainable from them — not on an assumed yield had they been grown on to full maturity. In the case that produced those criteria, the trial court had reasoned that twenty-eight young plants would eventually reach two metres and yield far beyond personal use. That reasoning was rejected as speculation.

In that same file the expert report put the esrar obtainable from the twenty-eight potted plants at 324 grams net, with a further 46 grams already harvested, and the majority held the personal-use sentence applied. That was one file, decided on its whole content, over dissent. It is not a quantity that decides your case.

Which court

Because the first sentence carries up to twelve years, the case belongs to the ağır ceza mahkemesi — the heavy penal court, which under Law no. 5235 hears offences requiring more than ten years' imprisonment. The Court of Cassation has quashed judgments where an asliye ceza mahkemesi decided for itself that conduct fell under the lighter personal-use sentence; that decision, it held, is for the heavy penal court. So a file about a handful of plants is tried in the most serious first-instance criminal court in the country.

While the plants are still standing, the conduct falls under Law no. 2313 alone. From the moment plants are pulled up or cut, wholly or in part, in order to obtain esrar, a Penal Code offence is committed alongside it — manufacture and supply under TCK 188, or possession for personal use under TCK 191, depending on why the esrar was being obtained.

These are not alternatives to the cultivation charge. Neither offence is an element or an aggravating circumstance of the other, so the court convicts under both.

The point that cuts the other way

Where everything has been harvested and only dried material is found, a cultivation conviction still requires concrete evidence of growing — roots left in the ground, harvest residue, something physical. The Court of Cassation has held that a suspect's bare admission that the esrar in the house came from plants they grew themselves is not enough on its own to convict for growing.

One thing cannabis is not

TCK 188/4(a) increases the sentence by half where the substance is heroin, cocaine, morphine, base morphine, synthetic cannabinoids and their derivatives, synthetic cathinones, synthetic opioids, or amphetamines and their derivatives. Cannabis and esrar are not on that list. A synthetic cannabinoid is a different substance, and a report that says one where it means the other moves the sentence by fifty per cent.

Article 23 does not wait for a trial. Cannabis grown without permission is destroyed on the order of the senior civil authority for the district, carried out by the police or gendarmerie, on a report from agricultural engineers of the Ministry, or agricultural technicians where there are none. Under the third paragraph, the cost of that destruction is recovered afterwards from the person who planted without permission, under the Public Claims Collection Law no. 6183. Article 22 provides that esrar is seized immediately wherever it is found.

Then there is confiscation under TCK 54. Items used in the commission of a deliberate offence, or dedicated to it, are confiscated unless they belong to a third party acting in good faith — grow tents, lamps, fans, carbon filters, timers, pumps and nutrient chemicals all sit inside that description. Where an item has been disposed of, a sum equal to its value is confiscated instead. A court may decline to order confiscation where it finds that confiscating an item used in the offence would produce consequences more severe than the offence itself and so be inequitable — but that is a discretion the court exercises, not a result that follows on its own.

• The lawfulness of the search. Under CMK 119, a home, a workplace or a closed area not open to the public may be searched on a judge's decision, or, where delay would be prejudicial, on the written order of the public prosecutor. A police chief's written order is enough for other places but not for these. The decision or order must state the act giving rise to the search, the address or the items sought, and the period for which it is valid.
• Who was present. Where the prosecutor is not present at the search of a home, workplace or other closed place, two members of the neighbourhood council of elders or two neighbours must be there. Whether that happened is either on the record or missing from it.
• The expert evidence. Whether the plants were properly identified as cannabis, whether they were male or female, whether they were capable of producing esrar at all, and how much. A report that is silent on sex and on suitability leaves the conviction without the finding it has to rest on, and a fresh examination is the first thing the defence asks for.
• Surveillance. The final paragraph of article 23 allows interception of communications under CMK 135 and technical surveillance under CMK 140 for the cultivation-for-esrar offence. Where they were used, the decisions, the periods they covered and what was actually captured are all open to examination.
• Attribution. A garden, a roof or a shared flat is not automatically the cultivation of everyone holding a key. Who planted, who tended, who had access — and what any of that rests on beyond proximity.

Effective remorse, and its limits

TCK 192 removes or reduces the sentence for people who, in defined circumstances, disclose accomplices or where substances are kept. It is written for the Penal Code offences: manufacture and supply, and purchase, acceptance or possession for use. It is not drafted for the offence in Law no. 2313. Where a Penal Code charge and a cultivation charge sit in the same file, what article 192 can reach and what it cannot has to be worked through rather than assumed — and a disclosure made on the wrong assumption cannot be taken back.

Custody. Under CMK 91, custody may not exceed twenty-four hours from the moment of arrest, excluding the time needed to bring you before the nearest judge or court, which may not itself exceed twelve hours. Where an offence was committed collectively, the prosecutor may extend custody in writing by up to three days, one day at a time.

Your consulate. CMK 95 provides that where the person arrested or taken into custody is a foreign national, their position is reported to the consulate of their state unless they object in writing. That is the default, not something you have to request. What a consulate can then do is limited: it does not provide a defence lawyer and does not pay for one.

Language. Under CMK 202, where a defendant cannot express themselves adequately in Turkish, the essential points of the accusation and the defence are interpreted through an interpreter appointed by the court, and the same applies to suspects and witnesses heard during the investigation. Separately, after the indictment is read out and after the prosecution's closing opinion, you may give your oral defence in another language you say you express yourself better in, using an interpreter you choose from the official list — those costs are not met by the Treasury.

A lawyer is not appointed automatically here. Under CMK 150, counsel is assigned without any request where the offence carries a lower limit of more than five years. Growing cannabis to obtain esrar has a lower limit of four years; the personal-use sentence starts at one. Neither crosses that line. You have to say that you are not in a position to appoint counsel and ask for one — and until counsel is there, you are not obliged to give an account of the allegation.

Leaving. A prohibition on leaving the country is the first of the judicial control obligations listed in CMK 109. In files of this kind it is routine, and it generally arrives as the alternative to remand rather than as a separate misfortune.

The fine. A judicial fine is a number of days multiplied by a daily amount. Under TCK 52 the daily amount is set between one hundred and five hundred Turkish lira according to the person's economic and personal circumstances. Five hundred to ten thousand days is therefore a range decided twice — once in the day count, once in the daily rate — and the court may allow up to a year to pay, or instalments over up to two years.

Suspension and deferral. A sentence of two years or less may be suspended under TCK 51, where the person has not previously been sentenced to more than three months for a deliberate offence and the court is satisfied they will not offend again. A sentence of two years or less may also lead to deferral of the announcement of the verdict under CMK 231, which places the person under a five-year supervision period; if that passes without a deliberate new offence and without breach of the obligations, the case is dismissed. Neither route reaches a four-to-twelve-year sentence unless the sentence actually imposed comes down to that level.

Release. Under Law no. 5275, a person sentenced to a determinate term becomes eligible for conditional release after serving half of it in good conduct. The list of offences requiring two thirds does not name this one. That is the rule; the execution regime has further conditions of its own and is amended frequently.

Deportation. TCK 59 requires that a foreign national sentenced to imprisonment be reported to the Ministry of the Interior for assessment in relation to deportation, once conditional release or execution of the sentence is complete. Law no. 6458 then lists, among those for whom a deportation decision is taken, people assessed as requiring deportation under TCK 59, and separately people considered a threat to public order, public security or public health. This is an administrative process with its own decisions, time limits and appeal route. It is not part of the criminal case, and succeeding in the criminal case does not dispose of it.

What this page cannot tell you

It cannot tell you which of the two sentences your file falls under. That turns on the scene record, the expert reports, what was said in the first statement and what else was found in the house — none of which this page has seen. Nor can it tell you what a court will do with a given number of plants. No reported decision fixes a number, and the ones that come closest were decided on their own facts and over dissent. Anyone who offers you a plant count and a sentence over the phone is guessing.