Can a sentence for drug offenses be converted to a fine?

1. General Principle: Conversion of Imprisonment into a Fine (Turkish Penal Code Article 50)

According to Article 50/1 of the Turkish Penal Code ;

Prison sentences of one year or lessmay be converted into a fine.
The court can also impose measures such as requiring the individual to perform social services, conduct community work, or be prohibited from visiting certain places.

However, there is a very important limitation here: This provision does not apply to offenses that are explicitly stated in the law as not convertible to a judicial fine

2. The Situation Regarding Drug Crimes

a) Drug Use and Possession (Turkish Penal Code Article 191)

Punishment: Imprisonment for 2 to 5 years.
the penalty for this crime is more than one year , it cannot be directly converted to a fine.
Furthermore, instead of punishing users, the legislator probation and treatment measures .
Therefore, courts primarily resort to deferral of public prosecution (KDAE), treatment, and probation.

Conclusion: If a prison sentence is given under Article 191 of the Turkish Penal Code, this sentence cannot be converted into a judicial fine.

b) Drug Trafficking (Turkish Penal Code Article 188)

Penalty: Imprisonment for a period of not less than 10 years + a fine.
In this crime, the court is already obligated to impose a fine.
However, a prison sentence absolutely cannot be converted into a fine, because the penalty is too severe.

Conclusion: A prison sentence given under Article 188 of the Turkish Penal Code can never be converted into a fine.

c) Facilitating the Use of Narcotic Substances (Turkish Penal Code Article 190)

Punishment: Imprisonment for 2 to 5 years.
Since this is more than a year, it cannot be converted into a judicial fine.

3. Supreme Court Decisions

The 10th Criminal Chamber of the Supreme Court of Appeals, in case number 2017/2345 E., 2018/5432 K.,
overturned the local court's decision to convert a two-year prison sentence under Article 191 of the Turkish Penal Code into a judicial fine. The Supreme Court of Appeals explicitly emphasized that in this crime, a prison sentence cannot be converted into a judicial fine.

The Supreme Court's General Assembly of Judges, in its decision numbered 2015/10-254 E., 2017/123 K.,
stated that imprisonment sentences for drug trafficking offenses cannot be converted into fines; only a separate judicial fine must be compulsorily imposed.

4.1. Case Study

Defendant AK was caught with 3 grams of marijuana, tried under Article 191 of the Turkish Penal Code, and sentenced to 2 years in prison. His lawyer requested that this sentence be converted to a fine. However, the court it was not legally possible .

On the other hand, the defendant MB was caught with 1 gram of marijuana. The prosecutor decided to postpone the opening of a public case. The defendant complied with probation measures for 5 years, and ultimately no case was opened against him. Thus, the process ended without him receiving a prison sentence.

4.2.

The Beginning of the Event

In 2022, in a major city, two young men exhibiting suspicious behavior were stopped during a routine police check late at night. A cursory body search revealed no incriminating evidence; however, a search of the vehicle uncovered approximately 3 grams of marijuana in small packets

One of the young men stated that the substance belonged to him and that his friend was unaware of it. In the case referred to the prosecutor's office, an investigation was initiated against the suspect for "possession of narcotic substances for personal use" (Turkish Penal Code Article 191) .

Prosecutor's Investigation

Upon reviewing the file, the prosecutor determined the following:

The seized quantity is limited to personal use rather than being suitable for sale.
The packaging of the item does not indicate any intention of commercial sale.
The suspect has a clean criminal record and has never been prosecuted for the same crime before.
The suspect explicitly admitted in his statement that he possessed the drugs for his own use , not to sell them

Under these circumstances, the prosecutor decides to postpone the public prosecution (KDAE)

Postponement Decision and Probation

The initiation of public prosecution is postponed for a period of 5 years. During this period, the suspect is subject to the following obligations:

Regularly signing in at the probation office
Taking regular tests to show whether or not you are using drugs,
Participating in the treatment program prepared by AMATEM,
Complying with the social responsibility programs imposed by the prosecutor's office.

Continuation of the Process

The suspect complies with the obligations for the first two years; regularly reports to the probation office to sign in, and tests show no trace of drugs. However, in the middle of the third year, drug use is detected in the test results. In this case, the probation office reports the situation to the prosecutor's office.

The prosecutor warns the suspect and directs him to an additional treatment program. This time, the suspect regularly attends the treatment, and no negative findings are found in subsequent tests. Thanks to this compliance, the prosecution decides to continue the process.

End of Time

After a five-year period, the suspect completed the treatment program and tests confirmed that he had not relapsed into drug use. In this case, the prosecutor decided not to file a public lawsuit, and the file was closed.

Consequently, the suspect has no prior criminal record. During this process, he did not receive a prison sentence; instead, he was only subjected to probation measures aimed at reintegrating him into society.

Legal Assessment

This incident demonstrates the importance of the institution of postponing the initiation of public prosecution under Article 191 of the Turkish Penal Code. If public prosecution had been initiated directly, the suspect would have faced a prison sentence of 2 to 5 years . However, thanks to the postponement:

The suspect did not go to prison
No criminal record was created
He was able to receive treatment and rehabilitation
He was reintegrated into society.

Such examples demonstrate that the legislator has adopted a treatment-based approach rather than a punitive one.

Conclusion

As can be seen from this example, which is presented in accordance with the Personal Data Protection Law (KVKK), although it is not possible to convert a prison sentence for drug use and possession into a fine, the suspect can escape punishment thanks to the prosecutor's office postponing the initiation of a public prosecution. However, this process depends on the individual's compliance with the obligations.

5. What can be done in terms of defense?

to postpone the initiation of public prosecution .
The treatment and probation process should be emphasized.
If a sentence is given, of suspending the announcement of the verdict should be considered.
Instead of requesting a monetary fine, the defense should focus on options such as a reduction or postponement of the sentence

In conclusion;

Prison sentences for drug offenses cannot be converted into fines.
the prison sentence stipulated in Article 191 of the Turkish Penal Code (for use/possession) starts from 2 years, it cannot be converted to a judicial fine.
In the case of the crime of commerce (according to Article 188 of the Turkish Penal Code), the imprisonment penalty is already very severe and cannot be converted to a judicial fine; moreover, it is applied in addition to a mandatory judicial fine.
Therefore, the solution in drug-related crimes is not converting sentences to fines, but rather probation, effective repentance, postponement, and suspended sentences.

Law Faculty Student Ada Ceren KENDİGELEN

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