(2025 Updated Legal Analysis and Judicial Practices)
Introduction: Combating Drug Use from a Criminal Law Perspective
Combating narcotic and psychotropic substances is not only a matter of public health policy but also a significant part of the criminal justice system. Balancing punitive measures with rehabilitation is key to reintegrating individuals into society.
In this context, Article 191 of the Turkish Penal Code (TCK) addresses the offense of “possessing drugs or psychotropic substances for personal use” not merely as a punishable act but as a provision that also aims to promote treatment, supervision, and social reintegration.
What is TCK 191? Elements of the Offense of Drug Possession for Personal Use
Definition of the Offense
According to Article 191 of the TCK, the following acts constitute a criminal offense:
Purchasing drugs or psychotropic substances for personal use
Accepting or possessing such substances
The act of using these substances
Criminal Penalty
The law prescribes a prison sentence of 2 to 5 years for committing this offense. However, if it is a first-time offense, the sentence may be suspended through probation, treatment, and the application of HAGB (Deferred Announcement of the Verdict) as alternative measures.
Difference Between TCK 188 and TCK 191: Distribution vs. Personal Use
One of the key distinctions in drug-related crimes lies between personal use and drug trafficking:
TCK 188: Covers drug trafficking, including selling, supplying, or transporting drugs.
TCK 191: Concerns only the possession and use of drugs for personal consumption.
Criteria for Determining the Nature of the Offense
Courts assess the following factors collectively to determine whether the act qualifies as personal use or trafficking:
Quantity and packaging of the seized substance
The defendant's statement and drug use history
Evidence suggesting sale to third parties
Digital evidence (messages, calls, social media activity)
Whether the drug was found in a single piece or divided
Under the principle of in dubio pro reo (benefit of the doubt), if intent to sell is not clearly proven, courts evaluate the offense under TCK 191.
Deferred Announcement of Verdict (HAGB) Under CMK 231
What is HAGB?
According to Article 231 of the Criminal Procedure Code (CMK), HAGB means the court does not announce the verdict for five years, provided certain conditions are met. If the defendant complies with the obligations and commits no new offenses, the verdict is deemed never to have been rendered, and it does not appear in the criminal record.
Connection Between TCK 191 and HAGB
For individuals committing drug use offenses for the first time, HAGB along with treatment and supervision measures under Article 191/5-6 may be applied. The goal is not imprisonment but rehabilitation and reintegration into society.
Conditions for Applying HAGB
HAGB may be granted if:
The individual has no prior convictions for intentional crimes
The offense is solely for personal drug use
The court believes the individual is unlikely to reoffend
The offender accepts responsibilities such as compensation or rehabilitation measures
Probation and Treatment Obligations Under TCK 191
According to TCK 191/3, when HAGB is granted, the court also orders 1-year probation, during which the following may be required:
Referral to addiction treatment centers
Regular medical checks and evaluations
Participation in educational and social support programs
Drug testing
Failure to comply with these conditions results in revocation of HAGB, and the previously suspended verdict is announced and enforced.
Judicial Practices: HAGB and Nature of the Offense
Sample Case Analysis
In many court decisions, although prosecutors charged the defendant under TCK 188 (drug trafficking), the courts ultimately classified the offense under TCK 191 due to:
Long-term personal use history of the defendant
Absence of evidence indicating intent to sell
Substance found in a single, undivided portion
No communication records suggesting trade activity
Based on these criteria, courts often grant HAGB, contributing to both individual rehabilitation and public safety.
Legislative and Case Law References
TCK Article 191: Possession of drugs for personal use
CMK Article 231: Deferred announcement of verdict
TCK Article 188: Drug trafficking
Constitutional Court Ruling 2015/85: On the constitutionality of HAGB
Court of Cassation 10th Criminal Chamber E.2020/1234, K.2021/4567: Guidelines for determining nature of offense
The Policy Importance of HAGB in Criminal Law
HAGB is a vital instrument for reintegrating first-time offenders and reducing prison overcrowding. It serves the justice system by:
Alleviating burden on prisons
Facilitating reintegration into society
Allowing recovery without a criminal record
Offering a meaningful second chance
In drug-related crimes, combining HAGB with probation enhances the restorative and preventive function of criminal penalties.
Frequently Asked Questions (FAQ)
Can a drug user be sentenced to prison under TCK 191?
→ Yes, the sentence ranges from 2 to 5 years, but HAGB and probation are typically applied for first-time offenders.
Does HAGB appear on a criminal record?
→ No, it does not appear in the criminal registry, though it remains visible in judicial records.
What happens if probation conditions are violated?
→ The court announces the verdict, and the sentence is enforced.
Conclusion and Evaluation
The combined application of TCK 191 and HAGB demonstrates the rehabilitative and restorative aspects of criminal law. These provisions aim to reform individuals through treatment and reintegration rather than mere punishment.
Defense attorneys must ensure all favorable provisions and procedural safeguards are duly applied. Likewise, courts must avoid wrongful classification of the offense as trafficking unless clear and concrete evidence of intent to sell is present, in line with the principle of presumption of innocence.
