The application of probationary supervision in drug offenses is a multi-layered legal process that yields different results at the investigation, prosecution, and enforcement stages. Therefore, the issue is not limited to the question of “is probationary supervision applied?”, but should be evaluated holistically with its application conditions, violation circumstances, and legal consequences.
1. Scope of Probationary Supervision Measure and Individuals to Whom it Applies
Pursuant to Article 191 of the Turkish Penal Code (TCK), the probationary supervision measure is applied to two main groups within the scope of drug or stimulant offenses:
Persons who use drugs or stimulants: Regarding these individuals, both treatment and probationary supervision measures are decided upon.
Persons who, without using, purchase, accept, or possess drugs or stimulants for use: Regarding these individuals, only probationary supervision measures can be ordered.
In judicial decisions, the stages and methods by which this measure can be applied are specified as three main options:
Deciding solely on treatment and/or probationary supervision measures without directly ordering a prison sentence (TCK 191/2).
Directly ordering a prison sentence (TCK 191/1).
Ordering treatment and probationary supervision measures along with a prison sentence (by reference to TCK 191/6).
2. Conditions and Procedures of Probationary Supervision Measures
The application and continuation of probationary supervision measures are subject to specific legal conditions:
Deferment of Public Prosecution (DPP): With the amendment to Law No. 6545, it is mandatory to decide to defer the filing of a public lawsuit against the suspect for a period of five years in investigations initiated for the crime of using or possessing drugs. During this period, a supervised release measure is applied to the suspect for a minimum of one year.
Duration and Extension: The supervised release period is a minimum of one year. The public prosecutor can extend this period for a maximum of one more year in three-month (stated as six-month in some decisions) increments. Supervised release, which continues during the treatment period, continues for one more year from the end of the treatment; however, the total period cannot exceed three years..
Guidance and Assignment of an Expert: An expert guide is assigned to the person regarding whom a supervised release decision has been made. This expert informs the person about the effects of drugs, instills a sense of responsibility, and submits quarterly reports to the judge.
Reporting Obligation: The person concerning whom a decision has been made is obligated to report to the relevant supervised release directorate within ten days. Failure to report without a valid excuse is considered a breach of obligation.
3. Breach of Obligations and Consequences
In case of non-compliance with the supervised release measure, the legal process proceeds as follows:
Grounds for Violation: During the deferment period, a person’s persistence in not complying with the obligations, or re-purchasing, accepting, possessing, or using narcotic substances is considered a violation.
Persistence Requirement: According to the precedents of the Court of Cassation, for a public prosecution to be initiated due to a breach of obligation, the defendant must have been duly warned at least twice and must “persist” in not fulfilling their obligations despite these warnings.
Legal Consequences: For a person who acts in accordance with the requirements of the measure, a decision is made to drop the case initiated against them (pre-judgment) or to consider the sentence executed (post-judgment). In case of a violation, a public prosecution is initiated, or the execution of the suspended sentence is immediately commenced.
4. Recidivism and Obstacles
According to Article 191/6 of the TPC, for treatment and supervised release to be applied after a person has been sentenced to imprisonment, the person must not have been previously subjected to treatment and supervised release measures “due to this offense.” If the defendant committed the current offense during the execution of a previously issued supervised release decision, this situation is considered a violation, and a decision is made to drop the case without a separate investigation/prosecution for the second offense.
5. Additional Context and Application Details According to Secondary Sources
In decisions considered as secondary sources, the following additional information regarding supervised release practices specific to drug offenses is included:
Special Obligations: According to Article 105/A of Law No. 5275, those convicted of drug offenses, in addition to general supervised release obligations (such as working in public service, house arrest, etc.), are obliged to participate in mandatory “treatment and rehabilitation programs.”
Enforcement Process: It is emphasized that if the supervision plan prepared by the probation directorate is not complied with, or if an application is not made despite the calls, the record will be closed, the file will be sent back to the Chief Public Prosecutor’s Office, and the process of returning to a closed correctional institution may begin.
Procedural Errors: It is stated that if the right to object, its duration, and the authority are not clearly indicated in decisions regarding the postponement of the opening of a public prosecution, the decision will not become final, and this situation will impede the condition for prosecution.
Uyuşturucu suçlarında denetimli serbestlik herkese uygulanır mı?
Hayır. Denetimli serbestlik tedbiri, yalnızca TCK 191 kapsamında “kullanmak için uyuşturucu madde bulundurma, satın alma, kabul etme veya kullanma” suçları bakımından uygulanır. Uyuşturucu ticareti gibi daha ağır suçlarda ise kural olarak bu tedbir uygulanmaz; ancak belirli şartlarda infaz aşamasında farklı değerlendirmeler yapılabilir.
Denetimli serbestlik süresi ne kadar sürer?
Denetimli serbestlik tedbiri asgari 1 yıl uygulanır. Cumhuriyet savcısı bu süreyi belirli periyotlarla uzatabilir. Tedavi uygulanıyorsa, tedavi süresine ek olarak denetim devam edebilir ve toplam süre genellikle 3 yılı geçemez.
Denetimli serbestlik ihlal edilirse ne olur?
Kişinin yükümlülüklere uymaması, tekrar uyuşturucu kullanması veya başvuru yükümlülüğünü yerine getirmemesi ihlal sayılır. En az iki ihtara rağmen ihlalin devam etmesi halinde kamu davası açılır veya ertelenen cezanın infazına başlanır. Bu durumda kişi cezaevine girebilir.
Why is Expert Lawyer Support Necessary?
The probation process in drug offenses is an area that contains technical details in terms of both criminal law and enforcement law, and is highly prone to procedural errors. Especially when issues such as the postponement of the opening of a public prosecution, violation of obligations, extension of time, and recidivism are incorrectly evaluated, serious loss of rights can occur.
Therefore, working with an experienced law firm from the beginning of the process is of great importance. Especially with the support of an expert team in the field, such as 2M Hukuk Avukatlık Bürosu, and an experienced Istanbul drug lawyer or Tuzla drug lawyer;
You can ensure the correct application of probation conditions
You can conduct effective objection and defense processes against procedural errors
You can minimize the risk of incarceration in case of violation
You can ensure that the treatment and supervision process proceeds in accordance with the law
In processes conducted without the support of an attorney specializing in criminal law, difficult-to-reverse consequences may often arise. Therefore, obtaining professional legal support is critically important both for the protection of freedom and for the proper management of the process.
