The Elements of the Offence under TCK Article 191 and the Special Investigation Regime
Purchasing, accepting, possessing or using drugs or stimulants for personal use
Article 191/1 of the Turkish Criminal Code (Law No. 5237) defines purchasing, accepting or possessing a drug or stimulant for personal use, as well as using a drug or stimulant, as an offence with alternative forms of conduct. The current basic penalty is imprisonment from two to five years. This offence differs from drug trafficking under TCK Article 188: the quantity of the substance, its packaging, the place where it was kept, the means of use, communication records and the other evidence must be assessed as a whole, and personal use may not be accepted or rejected in advance merely on the basis of quantity.
An unproven allegation of use or possession and an active substance detected in a biological sample cannot be treated as interchangeable. In each concrete case, the material and mental elements of the offence, the lawful collection of the evidence and the date of the alleged act must be examined separately.
Five-year deferral of the filing of the public prosecution
Under TCK Article 191/2, in an investigation opened for this offence, a five-year deferral of the filing of the public prosecution is ordered without the general conditions of CMK Article 171 being required. The public prosecutor (Cumhuriyet savcısı) warns the suspect of the consequences that may follow if the suspect fails to comply with the obligations or breaches the prohibitions during the deferral period. Under the provision added by Law No. 7445, the decision is also communicated to the law enforcement units.
This decision is neither an acquittal nor a conviction. It is a special investigation mechanism applied before any prosecution begins; it is not the same as the deferment of the pronouncement of judgment (HAGB) ordered by a court. Valid service, correct notice of the available legal remedy and the finalisation requirements are decisive for any violation alleged later.
Separating the deferral period from the supervised release period
Under TCK Article 191/3, at least one year of supervised release is applied during the five-year deferral period. This period may be extended, in six-month increments and for up to two years in total, on the proposal of the supervised release directorate (denetimli serbestlik müdürlüğü) or by the public prosecutor acting of their own motion. Treatment may be applied where necessary. The public prosecutor orders the person to be referred to the relevant institution at least twice a year during the deferral period to determine whether the person is using drugs.
The end of the supervised release obligations does not mean that the five-year deferral ends by itself. If there is new use while the deferral continues, it is examined separately under TCK Article 191/4-c. Confusing these two timelines leads to erroneous assessments of the violation and of timing.
The Technical and Legal Meaning of a Positive Drug Test
Is a positive biological finding the same as new drug use?
The detection of a drug or its metabolite in urine, blood or another suitable biological sample is an important technical finding. However, a positive test does not automatically prove the exact date of a new act, the manner of use or all the elements required for a conviction. The detection window varies with the substance, the quantity, the frequency of use, metabolism and the sampling method. Residue from past use and an allegation of new use during the deferral period must, where necessary, be distinguished with toxicological data.
Screening test, confirmatory analysis and laboratory safeguards
Preliminary screening methods may be designed to detect certain classes of substances. Cross-reactivity, threshold values and other substances in the sample may affect the results. In a contested file, the type of test, the method used, whether confirmation was carried out, the laboratory records, the reference ranges and expert evaluation must be examined. Although it cannot be said that one particular confirmation method must be applied in every case, concrete technical objections raised against the reliability of the test must be answered.
Ownership of the sample and the chain of custody
The identity of the person from whom the sample was taken, the date and time of collection, sealing, transfer records, delivery to the laboratory, processing and the reporting chain must all be capable of being verified. Concrete findings that samples were mixed up or that procedure was breached may affect the reliability of the report. It must also be remembered that a purely hypothetical objection does not automatically invalidate a report.
Medication effects and expert opinion
The person's prescribed medication, the active substance, dose, duration of treatment and the physician's records must be examined. No automatic equation can be drawn between a positive finding and the statutory definition of the offence. Where necessary, an opinion of forensic toxicology or of the Council of Forensic Medicine (Adli Tıp Kurumu) may be sought in the concrete dispute.
A positive result caused by prescribed medication and the approach of the Court of Cassation
In its decision of 27.05.2021 (E. 2019/7672, K. 2021/6439), the 10th Criminal Chamber of the Court of Cassation (Yargıtay 10. Ceza Dairesi) examined a case in which the detection of the active substance benzodiazepine in a urine test had been treated as a supervised release violation. The Chamber held that the detection of this active substance, which is found in medicines sold on a green prescription (yeşil reçete), would not constitute a violation or an offence under TCK Article 191 in the circumstances set out in the decision, and reversed the conviction. The provisions reserved for TCK Article 188 and the nature of the concrete act must be assessed separately. This decision cannot be generalised to mean that every prescribed medicine removes legal liability without limit. Review the decision.
Conditions under Which a Positive Test Becomes a Supervised Release Violation
Three separate grounds of violation under TCK Article 191/4
Article 191/4 of the Code provides that a public prosecution will be filed if, during the deferral period, (a) the person persists in failing to comply with the obligations or the treatment requirements, (b) the person again purchases, accepts or possesses a drug or stimulant for personal use, or (c) the person again uses a drug or stimulant. The three sub-paragraphs rest on different elements. In particular, it is legally incorrect to require the persistence condition of sub-paragraph (a) for (b) and (c) as well.
| Type of violation | Statutory basis | Core examination |
|---|---|---|
| Persistence in not complying with obligations/treatment | TCK 191/4-a | Service, warning, excuse, repetition and the applicable Regulation |
| Renewed purchase, acceptance or possession | TCK 191/4-b | New act, purpose of use, time and lawfully obtained evidence |
| Renewed drug use | TCK 191/4-c | Proof of the new use, date of detection, validity of the deferral period |
Can a single positive test be sufficient to prove new use?
If new use during the deferral period has been established with lawful and sufficient evidence, even a single new use may constitute a ground of violation under TCK Article 191/4-c. However, the reliability of the evidence from a single positive screening test, the ownership of the sample and what the result shows as to time must be determined separately. A single test is not necessarily insufficient, and two tests are not necessarily sufficient. The decisive criterion is proof of the act by reliable evidence.
Failing to attend the supervision programme and using drugs must not be confused
Failing to attend an appointment, not responding to a summons or disrupting the treatment programme is mostly dealt with in the context of 191/4-a, whereas new drug use is dealt with in the context of 191/4-c. A single file may contain two different allegations; the statutory element and the evidence for each must be explained separately. The mere fact that an enforcement file has been closed is not conclusive proof that the offence or the condition of prosecutability has been met.
Current Regulation Article 44: Three Violations, Warnings and the Persistence Requirement
The three-violation rule for adults under the 2021 Regulation
Under Article 44/3 of the Regulation on Supervised Release Services dated 10 November 2021, violating an obligation three times within one year, without an excuse and intentionally, in the enforcement of supervised release decisions is regarded as persistence in non-compliance. If a third violation within one year after the second warning is established, the process of closing the file begins. The same paragraph provides a different, more protective count for children and for those who were children when enforcement began but later turned eighteen: a fourth violation after the third warning.
This provision concerns the general enforcement procedure for violations of obligations; it does not make three positive drug tests mandatory to prove new purchase, possession or use under TCK Article 191/4-b or (c). The existence of an excuse, intent, notice and the date of the violation must also be examined separately. Text of the Regulation.
Consequences that must be stated in the written warning
Article 44/2 of the Regulation provides that a warning must be served in writing. Article 44/4 requires that the persons concerned be told in advance after which violation the file-closing process will begin without a new warning. The content of the document served and the method of service must be reviewed.
Why case law from the earlier two-violation regime cannot be applied directly
Article 44/3 of the earlier 2013 Regulation provided for an assessment of persistence upon two violations within one year. It is mistaken to carry Court of Cassation decisions on enforcement files closed before 10.11.2021 over to the current three-violation system after 2021 without distinguishing by date. Which provision of the Regulation applies is determined by the date of the enforcement acts and the concrete procedural position.
Decision of the 10th Criminal Chamber of the Court of Cassation dated 10.02.2026
The 10th Criminal Chamber of the Court of Cassation, E. 2025/995, K. 2026/1407, examined an enforcement process that had begun and been closed under the old Regulation, in which the person applied to a hospital after a warning and continued treatment but later violated the obligation again. As regards the practice of that period, the Chamber indicated that the condition of prosecutability could not be regarded as met without a renewed warning of persistence; during its review, it also addressed termination of the case (düşme) in the context of the expiry of the five-year deferral period and the investigation of any other possible violation. Text of the decision.
The concrete scope of the decision relates to the pre-2021 enforcement regime. The conclusion that "a second warning is required after every positive drug test" cannot be drawn from this decision.
Routes of Objection and Complaint against Warnings and Enforcement Acts
Review of the acts of the supervised release directorate
Article 48/1 of the current Regulation on Supervised Release Services allows supervised persons and their legal representatives to apply, on the ground that the directorate's acts and actions, such as supervision plans, reports and warnings, are unlawful, by objecting to the directorate or filing a complaint with the enforcement judgeship (infaz hâkimliği). The nature of the act, its service and finality, and whether another special application procedure exists must be reviewed in the concrete case.
Complaint periods: 15 days and in any event 30 days
According to Article 48/2 of the Regulation, a complaint may be filed with the enforcement judgeship within fifteen days of learning of the act or action and in any event within thirty days of the act or action being carried out. The complaint may be submitted directly to the enforcement judgeship or through the chief public prosecutor's office or the supervised release directorate; an oral application is recorded in minutes (Article 48/3). Official Regulation.
Does a complaint stop enforcement by itself?
A complaint does not by itself have suspensive effect. Under Article 48/4 of the Regulation, where manifest unlawfulness and consequences that are difficult or impossible to remedy are present together, the enforcement judge may decide to postpone or stop the act or activity. The application should therefore explain the concrete unlawfulness, the evidence and, where necessary, the grounds for a request for a stay.
Service and Finalisation of the Deferral Decision and the Conditions of Prosecutability
Notification of the decision is a substantive safeguard, not a formality
The decision to defer the filing of the public prosecution must be properly served on the suspect and must indicate the legal remedy, the authority, the procedure and the time limit in a way that does not mislead. Starting enforcement on the basis of a decision that has not become final in a valid manner may taint the assessment of the violation and prosecution that rests on it. Acts alleged to have been committed before and after the finalisation of the deferral decision may have different consequences.
The Court of Cassation decision on incorrect notice of the legal remedy
The 10th Criminal Chamber of the Court of Cassation, 08.04.2025, E. 2024/4162, K. 2025/3974, held that a notice of the legal remedy that stated seven days instead of the time limit valid at the relevant time misled the suspect, that the deferral decision had not become final in the proper manner and that the condition of prosecutability had not arisen. The Chamber stated that a stay under CMK Article 223/8 and correct notice were required, and also took into account the two-week objection period following Law No. 7499. Text of the decision.
The problem of direct service at the MERNİS address
The 10th Criminal Chamber of the Court of Cassation, 08.09.2026, E. 2025/5873, K. 2026/10756, held that a deferral notification sent directly to the MERNİS address (the address in the national population registry), without using the last known address that the suspect had given in the investigation, was irregular in the concrete case. The Chamber determined that, because the deferral decision had not become final, the five-year period had not begun and the conditions for treating an act allegedly committed during that period as a violation had not been met. It nevertheless required the other investigations and cases to be obtained and the acts to be examined as to whether they constitute a single offence, a violation, a continuing offence (zincirleme suç) or an independent offence. Text of the decision.
Not every MERNİS notification is unlawful; what is decisive is whether the order and procedure that Notification Law No. 7201 provides for in the concrete case were applied.
Repeated Use, the Bar on Separate Investigations and Continuing Offences
The special rule under TCK Article 191/5
An act of purchase, acceptance, possession or use for renewed personal use during the deferral period is, under TCK Article 191/5, deemed a ground of violation and is not made the subject of a separate investigation and prosecution. This provision must be assessed within the scope of the first valid deferral decision. The existence of a separate investigation record for an event does not mean that an independent conviction can also be entered for that act.
New acts after the prosecution is filed under TCK Article 191/6
In an investigation opened on the allegation that the offence in TCK Article 191/1 was committed again after a public prosecution had been filed under TCK Article 191/4, a new decision to defer the filing of the public prosecution cannot be given under the second paragraph. Even so, the date on which the acts were committed, which earlier deferral decisions properly became final, whether there are related cases and the concurrence of offences (içtima) must be assessed separately.
Examining the chronology of acts for a continuing offence
When considering whether TCK Article 43 is applicable, the special regime of TCK Article 191/5 cannot be ignored. The Court of Cassation's decision of 08.09.2026 (E. 2025/5873, K. 2026/10756) required acts in more than one file to be examined together as to the possibilities of a single offence / violation / continuing offence / independent offence. The difference between the dates of the case and of the investigation can directly affect the defendant's position.
Stay, Termination, Non-Prosecution and Conviction
Stay where the condition of prosecutability has not yet been met
Under CMK Article 223/8, if prosecution depends on a condition and that condition has not yet been met but may still be met, a stay (durma) decision comes into question. Examples include ensuring that the deferral decision is properly served and finalised, valid enforcement of the measure and awaiting the outcome. A stay does not mean that the act has been established.
Termination where it becomes clear that the condition can no longer be met
If it becomes clear that the condition for investigation or prosecution will not be met, a decision of termination (düşme) is considered within the framework of CMK Article 223/8. In its decision of 10.02.2026 (E. 2025/995, K. 2026/1407), the 10th Criminal Chamber of the Court of Cassation addressed other possible violations and the expiry of the five-year deferral period together and reached a decision of termination. However, the expiry of five years does not lead automatically to termination in every case in which a valid violation occurred within that period.
Non-prosecution where the deferral is completed without violation
Under TCK Article 191/7, if the obligations and prohibitions in 191/4 are not violated throughout the deferral period, a decision of non-prosecution is given. This decision, taken at the investigation stage, and a termination decision given in a prosecution that has already been opened are different institutions.
Failure to prove the offence must be assessed separately
The existence of the condition of prosecutability does not automatically prove that the offence was committed. Under CMK Article 217, the court must decide on lawful evidence discussed at the hearing. The positive test report, the ownership of the biological sample, technical reliability, the time of the act of use and any medical records relevant to the defence must be assessed together.
Complementary Rules under TCK Article 191/8–10
Where the act falls exclusively under TCK Article 191 in a drug trafficking or facilitation charge
Under TCK Article 191/8, there is a special provision on ordering the deferment of the pronouncement of judgment (HAGB) under this Article where, in a prosecution for drug manufacture and trafficking under TCK Article 188 or for facilitating use under TCK Article 190, it becomes clear that the act falls exclusively within TCK Article 191. This differs from the deferral of the filing of the public prosecution at the investigation stage; it regulates the special procedural consequence that a change in the legal characterisation of the offence may have.
Complementary application of the general provisions
TCK Article 191/9 provides for the application of CMK Article 171 or Article 231 unless this Article provides otherwise. In every concrete case, therefore, the special provisions of TCK Article 191 should be assessed first, and then the general rules to the extent appropriate.
Aggravated penalty in public places or places open to the public close to certain locations
TCK Article 191/10 provides for the penalty to be increased by half for the acts in the first paragraph committed in public places or places open to the public within two hundred metres of the boundaries of facilities specified in the law, such as schools, dormitories, hospitals, barracks and places of worship. In practice, the nature of the facility, the determination of its boundary, the place where the act was committed, the measurement and public accessibility must be established by concrete evidence.
Defence and Evidence Strategy by File
First, the chronological integrity of the file must be established
In the defence, the date of the original offence; the deferral decision; service and finalisation; the start of supervision; each summons and warning; the dates of sampling, reports and any second use; and the dates of file closure and indictment should be collected in a single timeline. All earlier and later investigations and prosecutions should be obtained so that the relationship under TCK Article 191/5–6 can be examined.
A concrete technical defence on the positive test
The screening report, any confirmatory analysis, sampling records, chain-of-custody records, laboratory reports, prescriptions and health records should be examined together. Where the date of new use needs to be debated, a request may be made for an opinion from a toxicology expert. Special data on the person's health should be processed only to the extent legally necessary and by secure methods.
Procedural and substantive objections must be raised separately
First the validity of the deferral decision, service, the persistence requirement and the conditions of prosecutability should be examined; then the elements of the act, the reliability of the evidence and proof should be argued. Stay, termination and acquittal are outcomes resting on different preconditions and must be raised as the file requires.
Legal assessment in five typical situations
| Event | Primary legal issue | Evidence or act to examine |
|---|---|---|
| First positive test during the deferral | Proof of new use under 191/4-c | Type of test, sample chain, finalisation and date of the act |
| Repeated failure to attend the supervision programme | Persistence under 191/4-a | Current/old Regulation, excuse, intent, warnings |
| Irregular service of the deferral decision | Valid finalisation and the condition of prosecutability | Service receipt, addresses, notice of the legal remedy |
| Renewed possession during the deferral | 191/4-b and 191/5 | The first decision, the new act and the relationship between files |
| Expiry of the five-year period | Non-prosecution, or stay/termination distinction in a pending case | Finalisation, deferral timeline, valid violation records |
Frequently Asked Questions
If a urine test is positive, is a prison sentence imposed directly?
No. A positive test alone does not directly mean enforcement of a prison sentence. A valid violation, public prosecution, trial, conviction and enforcement are distinct stages.
Can a public prosecution be filed after the first positive test?
It can, under TCK Article 191/4-c, if new use within the valid deferral period is proved by sufficient evidence. There is no requirement of three positive tests; the three-violation rule in Regulation Article 44 is addressed separately in relation to persistence in failing to comply with obligations.
Is a second warning mandatory in every case of supervised release?
No. The warning/persistence regime concerns in particular 191/4-a and the relevant Regulation. For 191/4-b and (c), the proof of the new act and the valid deferral period are decisive.
Does the three-violation rule apply in the same way to children?
No. Article 44/3 of the current Regulation sets out the principle of a fourth violation after the third warning for children drawn into crime and for those who were children when enforcement began but later became adults.
What happens if the test is positive because of prescribed medication?
The nature of the medicine and of the active substance is investigated. A positive result alone may not constitute an offence or a violation. The decision of the 10th Criminal Chamber of the Court of Cassation dated 27.05.2021 is an important example for the concrete case.
Where can one complain about a warning or a supervision plan?
Under Article 48 of the Regulation, the routes of objection to the supervised release directorate or complaint to the enforcement judgeship can be examined. The complaint period is 15 days from learning of the act and in any event 30 days from the act; the type of act and any special procedures must be checked.
Does filing a complaint stop the act?
Not by itself. If manifest unlawfulness and consequences that are difficult or impossible to remedy are both present, the enforcement judge may decide to stop or postpone.
What if the decision to defer the filing of the public prosecution was not served?
The failure of the decision to become final in the proper manner may affect whether the condition of prosecutability has arisen. In the Court of Cassation's 2025–2026 decisions, stays and the completion of service procedures were considered.
Does new drug use after the supervised release period ends count as a violation?
If the supervised release programme has ended but the five-year deferral period is still running, new use may be treated as a violation under 191/4-c.
Is the file definitively closed when the five-year deferral ends?
If it is completed without a valid violation, a decision of non-prosecution is given under TCK Article 191/7. In cases that have already been opened, a separate assessment is needed depending on the condition of prosecutability and the state of the violation; there is no rule of automatic termination.
Can there be more than one use file against the same person?
The files may be separate on the register; however, under TCK Article 191/5–6 and the provisions on the concurrence of offences, it must be examined whether each act gives rise to an independent conviction.
Can case law be used against a final conviction?
Depending on how the judgment became final and the unlawfulness alleged, extraordinary legal remedies may be examined if their conditions are met; a similar Court of Cassation decision does not by itself remove a conviction.
Related articles: Objection and Complaint Routes Against Supervised Release Directorate Actions: Enforcement Judgeship, Time Limits, Violations and Return to Prison
Conclusion: A Positive Test, a Valid Violation, the Condition of Prosecutability and Conviction Are Separate Stages
Establishing drug use during supervised release is not just a matter of reading a laboratory report. The persistence condition in TCK Article 191/4-a must be separated from the acts of renewed purchase, possession or use in 191/4-b and (c). A valid deferral decision, correct service, the commission of the act within the deferral period and the reliability of the evidence must all be taken into account.
The three-violation and two-warning regime for adults under current Regulation Article 44 must not be confused with the two-violation case law of the earlier Regulation period. In addition, the application routes and time limits under Regulation Article 48 concerning enforcement acts must not be overlooked. A positive test result is not the automatic equivalent of a legally valid violation, of the possibility of filing a public prosecution or of a conviction.
Sources and legal bases
- Law No. 5237 on the Turkish Criminal Code (Türk Ceza Kanunu) – official text (in particular Articles 43, 188, 190, 191).
- Law No. 5271 on Criminal Procedure (Ceza Muhakemesi Kanunu) – official text (in particular Articles 67, 171, 173, 206, 217, 223, 231, 309).
- Regulation on Supervised Release Services (Denetimli Serbestlik Hizmetleri Yönetmeliği) dated 10.11.2021 – Official Gazette (in particular Articles 44, 48).
- Court of Cassation 10th Criminal Chamber, 10.02.2026, E. 2025/995, K. 2026/1407: persistence requirement, Regulation of the period, stay/termination.
- Court of Cassation 10th Criminal Chamber, 08.09.2026, E. 2025/5873, K. 2026/10756: irregular service, finalisation, related files.
- Court of Cassation 10th Criminal Chamber, 08.04.2025, E. 2024/4162, K. 2025/3974: incorrect notice of the legal remedy and the condition of prosecutability.
- Court of Cassation 10th Criminal Chamber, 27.05.2021, E. 2019/7672, K. 2021/6439: benzodiazepine, use of medication and violation.
- Court of Cassation 8th Criminal Chamber, 24.10.2024, E. 2024/13031, K. 2024/8034: service procedure and stay.