Probation in Drug Possession Offenses under Turkish Law

The offenses of purchasing, receiving, or possessing drugs or stimulants for personal use are regulated under Article 191 of the Turkish Penal Code (TPC). The legislator has established a special legal mechanism that prioritizes treatment and rehabilitation processes over criminal punishment in order to prevent drug addiction and usage.

The foundation of this mechanism is the Suspension of Filing a Public Prosecution (SFPP / KDAE) and the Probation (Denetimli Serbestlik) measures applied during this suspension period. Drawing on our criminal law expertise in representing clients facing drug-related offenses in Kuşadası, Söke, Didim, and across Aydın, we have compiled all the details in this guide, ranging from the investigation phase to the probation process, urine drug testing schedules, and the consequences of potential violations.

1. Drug Possession Under Article 191 of the TPC and Its Boundaries

The possession of drugs for personal use carries a statutory penalty of 2 to 5 years of imprisonment. The fundamental condition for this offense to apply is that the substance must be held strictly for "personal consumption." If the intent behind possessing the substance is to sell, transfer, or supply it to others, the action falls under "Drug Trafficking" under Article 188 of the TPC, which carries much heavier penalties (imprisonment of not less than 10 years).

In determining whether the possessed drug falls within the limits of personal use, judicial bodies base their evaluations on the established criteria of the Court of Cassation (Yargıtay):

• Amount of Substance: According to the settled precedents of the Court of Cassation, the average annual personal use limit for cannabis is approximately 600-700 grams. Daily limits for other substances (e.g., heroin, cocaine, methamphetamine, synthetic cannabinoids) vary significantly based on the substance type. Exceeding these amounts may lead to the offense being classified as drug trafficking.
• Packaging and Possession Details: Possessing the substance divided into small, ready-to-sell packages (locally known as "fişek"), alongside precision scales or packaging materials, raises a strong suspicion of drug trafficking, even if the total amount is within personal use limits.
• Defendant's Behavior and Social Profile: The determination of whether the defendant is an active drug user (supported by blood/urine toxicology tests showing addiction) and consistent statements regarding how and why the substance was acquired play a decisive role in the case.

2. What is the Suspension of Filing a Public Prosecution (SFPP)?

Pursuant to TPC Article 191/2, in investigations initiated for possession of drugs for personal use, the Public Prosecutor orders the suspension of filing a public prosecution for a period of 5 years. This decision is mandatory for the prosecution, provided that the legal conditions are met.

Alongside the suspension decision, the suspect is subjected to probation measures for a minimum of 1 year. This probation period can be extended up to a maximum of 2 years in 3-month intervals upon the request of the probation directorate or the evaluation of the prosecutor. The suspension decision is not recorded in the suspect's general criminal record (sabıka kaydı) but is kept in a restricted electronic database dedicated to these cases.

3. The Probation Process and AMATEM Referrals

Once the suspension and probation decision is served on the suspect, the most critical window begins. The suspect must personally apply to the designated Probation Directorate within 10 days of receiving the notification. This 10-day period is a statutory deadline, and failing to apply without a valid legal excuse constitutes an immediate violation of the probation program.

Upon applying, a case officer is assigned to the probationer, and the process proceeds through the following stages:

• Referral to a Healthcare Institution (AMATEM): The probationer is referred to an authorized medical facility (usually AMATEM or the psychiatry department of state hospitals) for addiction assessment and detox/rehabilitation treatment.
• Urine Toxicology Monitoring (Clean Urine Tests): Throughout the treatment and probation period, the probationer is summoned randomly or at scheduled intervals to provide urine samples. Ensuring these tests are negative for drug metabolites is mandatory for the successful completion of the process.
• Seminars and Individual Counseling Sessions: Based on the probation plan, the probationer must attend educational seminars on the dangers of substance abuse and participate in scheduled individual or group counseling sessions.

4. The "Insistence" Requirement and the Double Warning Rule

For a public prosecution to be initiated after a violation, the probationer must be deemed to have insisted on not complying with the probation program. Under the settled jurisprudence of the Court of Cassation General Assembly of Criminal Chambers, a single failure to attend a session or a first-time violation does not constitute "insistence."

The legal criteria for "insistence" require the following procedure:

1. If the probationer violates a rule (e.g., misses a seminar), the directorate must serve a written warning (ihtar), cautioning that future violations will result in the case being closed and sent to the prosecutor.
2. If a second violation occurs despite the warning, a second written warning must be officially served.
3. Only after two separate written warnings are ignored, and a third violation is recorded, is the "insistence requirement" legally met. The probation file is then closed and sent back to the Chief Public Prosecutor's Office. Notifications sent via SMS are not legally binding and cannot serve as a ground for a warning or violation.

5. Successful Completion vs. Violation: What Happens Next?

The outcome of the probation and suspension period depends entirely on the probationer's compliance:

• Successful Completion (Dismissal of Charges): If the probationer completes the 1-year probation and the 5-year suspension period without any violations, with clean urine tests, and without committing a new drug offense, the Chief Public Prosecutor's Office issues a Decision of Non-Prosecution (Takipsizlik). The file is permanently closed and will never appear on the person's criminal record.
• Violation and Criminal Prosecution: If the probationer insists on non-compliance or is caught possessing or using drugs again within the 5-year suspension period, the suspension is revoked. The Public Prosecutor files an indictment demanding 2 to 5 years of imprisonment under Article 191/1 of the TPC in the Criminal Court of First Instance. In court, options such as suspension of sentence or a decision of suspension of the announcement of judgment (HAGB) may be evaluated.

6. The Importance of Legal Assistance in Drug Cases

Drug possession and use charges carry significant risks of irreversible damage to future employment in public offices, driving privileges, visa applications, and overall career goals. Technical defenses such as challenging the legality of searches, analyzing whether the seized substance falls under personal use limits, and contesting probation notification procedures or AMATEM test results require the expertise of an experienced criminal defense lawyer. To prevent loss of rights in local courts in Aydın, Kuşadası, Söke, and Didim, professional legal representation is highly recommended.

Frequently Asked Questions

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