WHAT HAPPENS IN CASES OF RECIDIVISION IN DRUG USE CRIMES?

The crime of using narcotics or stimulants is regulated within a special investigation and sanction system in Article 191 of the Turkish Penal Code. With regard to this crime, the legislator aims not only to punish but also to deter the individual from drug use and, if necessary, to provide treatment. Therefore, instead of directly initiating a criminal case against a person who is investigated for the first time under Article 191 of the Turkish Penal Code, the postponement of the public prosecution and the application of supervised release measures are generally preferred.

However, one of the issues that causes the most hesitation in practice is when a person repeats the act of using drugs or possessing drugs for use. In particular, the concepts of "being caught for drugs a second time," "recidivism in drug use," "using drugs again while on probation," and "receiving a sentence as a repeat offender" are often used interchangeably.

However, legally these concepts do not mean the same thing.

A person's relapse into drug use during a period of probation or postponement of public prosecution does not, in all cases, recidivism . Article 191 of the Turkish Penal Code provides for a specific system regarding relapsed drug use. Technically, for recidivism to be applicable, there must be a previously issued and final conviction.

Therefore, when determining the legal consequences of a repeat offence of drug use, the following factors must be examined separately: the stage of the individual's previous case, whether the previous decision was a conviction or a decision to postpone the public prosecution, the date the new offense was committed, and when the previous judgment became final.

1. What is the crime of drug use?

According to Article 191 of the Turkish Penal Code No. 5237;

Purchasing, accepting, possessing, or directly using narcotic or stimulant substances for the purpose of personal use is a crime.

The law prescribes a prison sentence of two to five years for the basic form of this crime .

It is important to note here that the crime is not constituted solely by the seizure of narcotics. Establishing, through legally admissible evidence, that narcotics or stimulants have been used may also lead to an assessment under Article 191 of the Turkish Penal Code.

However, the purpose for which the drug is possessed is extremely important. If there is sufficient evidence that the substance is possessed not for personal use but for the purpose of selling or giving it to another person, the crime of manufacturing and trafficking of narcotic or stimulant substances, may be applied instead of Article 191 of the Turkish Penal Code.

Therefore, the quantity of the seized substance, the packaging method, the manner in which the incident occurred, the person's communication records, whether a precision scale was found, cash transactions, and other evidence should be evaluated as a whole.

2. What happens if an investigation is opened for the first time for drug use?

The most important feature of Article 191 of the Turkish Penal Code is that it does not primarily focus on direct punishment in the initial stage.

According to Article 191/2 of the Turkish Penal Code, in investigations initiated due to this crime, the public prosecutor to postpone the opening of a public case for a period of five years Procedure.

In addition, the individual will be subject to supervised probation for at least one year . This period can be extended in six-month increments under the conditions stipulated by law, for a total of two more years. The individual may also undergo treatment if necessary.

Following the amendment made in 2023 , it was also stipulated that the public prosecutor may decide to refer the individual to the relevant institution at least twice a year to determine whether they have used drugs or stimulants during the deferment period

Therefore, the outcome a person faces as a result of their initial investigation under Article 191 of the Turkish Penal Code is usually not a direct imprisonment; rather, it is a postponement of the public prosecution, probation, and, if necessary, a treatment process.

3. Is Using Drugs a Second Time Always a "Relapse"?

No.

This is the most common legal mistake in drug use cases.

The fact that a person has previously been prosecuted under Article 191 of the Turkish Penal Code and uses drugs for a second time does not, by itself, mean that the provisions on recidivism under Article 58 of the Turkish Penal Code will be applied.

For recidivism to occur, a conviction for a previous crime must have become final before the new crime is committed.

Article 58/1 of the Turkish Penal Code explicitly stipulates that recidivism provisions apply when a new crime is committed after the sentence given for a previous crime has become final. It is not mandatory for the previous sentence to have been fully served.

Therefore, only;

• the decision to postpone the initiation of public prosecution,
• application of supervised release,
• the investigation continues,

It does not technically make the person a "repeat offender".

For example, if a person has had a public prosecution suspended under Article 191/2 of the Turkish Penal Code for their first drug use, and they use drugs again within the five-year suspension period, this second incident will primarily a violation under Articles 191/4 and 191/5 of the Turkish Penal Code .

4. What happens if someone uses drugs again during probation?

According to Article 191/4 of the Turkish Penal Code, during the probation period;

against a person if they persistently fail to comply with the obligations imposed upon them or the requirements of the treatment administered, or if they purchase, accept, or possess narcotic or stimulant substances for the purpose of reuse, or if they use narcotic or stimulant substances .

The key detail here is Article 191/5 of the Turkish Penal Code.

According to the law, purchasing, accepting, possessing, or using narcotics again during the deferment period will not be subject to a separate investigation and prosecution.

This act is considered a violation of the decision to postpone the initiation of public prosecution in the previous case

In other words;

First case → Postponement of the initiation of public prosecution under Article 191 of the Turkish Penal Code

Second incident → If it occurred within the postponement period, as a rule it is not a separate conviction under Article 191 of the Turkish Penal Code, but rather a violation of the first case

This leads to the following result.

The Supreme Court also holds that a second act of drug use committed during a probationary period or postponement constitutes a violation under Article 191/5 of the Turkish Penal Code and therefore cannot be subject to conviction.

Therefore, the commonly held belief in society that "I've been caught a second time, I'll receive sentences for two separate drug cases" is not true in every case.

It is essential to determine the date on which the act was committed and whether the suspension period from the previous case under Article 191 of the Turkish Penal Code is still in effect.

5. What happens if a public prosecution is initiated due to the violation?

A public prosecution may be initiated by the public prosecutor's office regarding the initial case if the individual violates the obligations specified in Article 191/4 of the Turkish Penal Code or uses drugs again during the probation period.

In this case, the person is now tried before the Criminal Court of First Instance under Article 191 of the Turkish Penal Code.

Here the court;

The court must examine whether the crime has been proven, whether the evidence relating to drug use or possession was lawfully obtained, whether the substance was possessed for the purpose of use, whether the probation and postponement decision has been duly finalized, and whether the conditions for the violation have actually been met.

Indeed, the Supreme Court has ruled that if the public prosecution is postponed and the decision on supervised release is not finalized in accordance with proper procedure, subsequent actions cannot be considered direct violations and a conviction cannot be established.

This is important in practice. Simply having a probation record in the system is not sufficient to establish a conviction for a violation in every case. Notifications and their finalization dates must also be evaluated.

6. What happens if drugs are used again after a public prosecution has been initiated?

Article 191/6 of the Turkish Penal Code contains a separate provision on this matter.

According to Article 191/4 of the Turkish Penal Code (TCK), if an investigation is initiated again on the allegation that the person committed another act within the scope of Article 191 of the TCK after a public prosecution has been started, the possibility of postponing the opening of a special public prosecution under Article 191/2 of the TCK no longer applies.

This distinction is extremely important.

The legislator provides the individual with a significant opportunity centered on treatment and supervised release in the first incident. However, the same mechanism is not permitted to be repeated indefinitely for subsequent acts under Article 191 of the Turkish Penal Code, which are committed after this opportunity has been violated and a public prosecution has been initiated.

Therefore, the person;

The date of the first drug incident,

The date of the decision to postpone the initiation of public prosecution,

Date of the violation,

the date of the opening of the first public trial,

history of the next drug offense

They should be determined in chronological order.

Sometimes even a difference of a few days in the date can change whether a new incident is considered a "breach" or a matter for an independent investigation.

7. What is Recidivism in Technical Terms?

Recidivism in crime is regulated in Article 58 of the Turkish Penal Code.

Recidivism is defined as a person who has previously committed a crime and has a final conviction against them committing another crime under the conditions specified in the law.

The fundamental condition for repetition is chronology.

For example;

First crime: January 1, 2024
Finalization of first crime conviction: January 1, 2025
Second crime: July 1, 2025

However, if other conditions are also met, recurrence may become an issue.

However;

First crime: January 1, 2024
Second crime: July 1, 2024
Finalization of first crime conviction: January 1, 2025

In this case, since the second crime was committed before the first judgment became final, recidivism does not occur within the meaning of Article 58 of the Turkish Penal Code.

The Supreme Court also explicitly accepts that a judgment that became final after the date of the crime cannot be used as a basis for recidivism.

8. Is it necessary for the previous sentence to have been served in order for recidivism to be considered a crime?

No.

According to Article 58/1 of the Turkish Penal Code, for recidivism to be established, it is sufficient for the previous conviction to have become final.

It is not necessary for the sentence to have been fully served.

However, if the previous sentence has already been served, the time limits in Article 58/2 of the Turkish Penal Code become relevant.

If the previous conviction was for a prison sentence of more than five years, the provisions on recidivism do not apply to offenses committed after five years from the date of execution of the sentence; if the sentence was for five years or less, or a judicial fine, the provisions on recidivism do not apply after three years from the date of execution of the sentence.

Therefore, simply having a previous conviction on one's criminal record is not sufficient. Whether the recidivism period has expired must also be calculated.

9. Which previous convictions can constitute grounds for recidivism in drug use offenses?

Since Article 191 of the new Turkish Penal Code defines an intentional crime, previous convictions for intentional crimes can serve as grounds for recidivism if the conditions are met.

The previous offense does not necessarily have to be drug use.

For example, a previous conviction might have resulted from intentional injury, theft, fraud, or another intentional crime. If the time period and other conditions are met, recidivism may be considered in a subsequent conviction under Article 191 of the Turkish Penal Code.

However, according to Article 58/4 of the Turkish Penal Code, recidivism does not apply between intentional and negligent crimes.

Furthermore, according to Article 58/5 of the Turkish Penal Code, convictions arising from crimes committed by persons who had not reached the age of eighteen at the time of committing the act cannot be considered as grounds for recidivism.

Therefore, not every conviction in a criminal record automatically constitutes grounds for recidivism.

10. Does a decision to postpone the initiation of a public prosecution constitute grounds for recidivism?

No.

This point is especially important in drug cases.

by the public prosecutor to postpone the initiation of a public prosecution under Article 191 of the Turkish Penal Code is not a conviction.

Therefore, a person cannot be considered a repeat offender within the meaning of Article 58 of the Turkish Penal Code simply because they have previously been released on probation under Article 191 of the Turkish Penal Code.

Similarly, a suspended sentence that has not yet been announced cannot be considered a final conviction with all the consequences of a conviction. In the practice of the Supreme Court, it is also accepted that the legal nature of previous decisions in drug cases should be examined separately in terms of recidivism.

Therefore, applying the principle of recidivism solely based on the case number in the criminal record and archive is not legally sufficient. The type of decision and its finality status must be determined.

11. Does the penalty automatically increase if the offense is repeated?

Another common misconception regarding recidivism is that the penalty will automatically be increased by, for example, half.

Article 58 of the Turkish Penal Code does not generally provide for such an automatic system of penalty increases.

The primary consequence of recidivism is the application of a special penal regime for repeat offenders.

According to Article 58/6 of the Turkish Penal Code, in cases of recidivism, the sentence is served according to the special execution regime for repeat offenders, and supervised release is applied after the sentence is served. The court also states in the judgment that the special execution regime for repeat offenders will be applied.

Article 58/3 of the Turkish Penal Code stipulates that if the law provides for imprisonment or a fine as alternative penalties for a new crime, imprisonment shall be chosen in cases of recidivism.

Since Article 191/1 of the Turkish Penal Code already stipulates imprisonment of two to five years as the primary sanction, this optional sanction rule has no direct effect on Article 191 of the Turkish Penal Code.

The most significant consequence of recidivism in drug use cases becomes apparent in the sentencing conditions

12. How is the sentence for a repeat drug user carried out?

Article 108 of Law No. 5275 on the Execution of Criminal and Security Measures regulates the execution regime specific to repeat offenders.

According to current regulations, in cases of recidivism, if the law does not prescribe a higher parole rate, two-thirds of in a correctional institution with good conduct is generally considered the basis for parole.

In the case of a second offense, following the amendment dated June 4, 2025, the conditional release rate for fixed-term prison sentences three-quarters . The previous system, which had a much harsher prohibition on conditional release for second-time offenders, has been changed, allowing second-time offenders to benefit from conditional release at a certain rate. The Supreme Court's decisions from 2026 also indicate that this favorable change should be taken into account.

However, answering questions like "How many months does someone sentenced to two years spend in prison?" solely based on Article 58 of the Turkish Penal Code is not accurate.

In the actual execution calculation;

Date of the crime, date the sentence became final, degree of recidivism, presence of other penalties, conditional release provisions, probation provisions, and relevant temporary articles

They should be examined together.

13. What is a Second Recurrence?

Second-time recidivism is not directly the same concept as a person having committed a crime for the third time in the ordinary sense.

If the provisions regarding recidivism were applied to the person in the previous ruling, and a new crime was committed under the conditions of that legal status, then recidivism may be considered for a second time.

Therefore, when applying the recidivism rule for the second time, the court must thoroughly examine the previous ruling, the judgment forming the basis of the recidivism, the dates of finalization, and the date of the new offense.

Because the consequences of execution are particularly severe, erroneous application of the principle of recidivism and the application of the principle of recidivism for a second time can constitute a significant legal irregularity in appeal or cassation review.

14. Is it possible to postpone the announcement of the verdict in cases of recidivism?

In cases where recidivism is genuinely established under Article 58 of the Turkish Penal Code, the provisions of Article 231 of the Code of Criminal Procedure should also be examined regarding the suspension of sentence.

According to Article 231/6 of the Code of Criminal Procedure, in order for a suspended sentence to be applied, the defendant not have previously been convicted of an intentional crime .

Since Article 191 of the Turkish Penal Code is an intentional crime, and recidivism in the technical sense can only be established upon a previous final conviction for intentional crime, a suspended sentence will not be possible in most cases for a person who is truly a repeat offender.

However, it must be emphasized again here:

The fact that the initiation of public prosecution was previously postponed and supervised release was applied only under Article 191 of the Turkish Penal Code does not constitute a final conviction.

Therefore, making an automatic assessment such as "I have previous probation, I cannot receive a suspended sentence" is incorrect.

The case's previous decisions should be examined one by one.

15. Is it possible to postpone a prison sentence?

According to Article 51 of the Turkish Penal Code, prison sentences of two years or less can be suspended under certain conditions. However, one of the conditions is that the person must not have previously been sentenced to imprisonment for more than three months for an intentional crime.

Therefore, the type and nature of a repeat offender's previous conviction are also important in determining whether a prison sentence will be suspended.

In other words, instead of drawing a categorical conclusion that "the sentence absolutely cannot be suspended" in every case involving recidivism, the nature of the previous conviction and the conditions of Article 51 of the Turkish Penal Code should be examined separately.

16. Aggravating Circumstances in Drug Use Offences

According to Article 191/10 of the Turkish Penal Code, the crime is:

If the offense is committed in public or publicly accessible places within two hundred meters of buildings or facilities where people congregate for treatment, education, military or social purposes, such as schools, dormitories, hospitals, barracks or places of worship, or their designated boundaries, the penalty shall be increased by half.

Therefore, in a case involving recidivism, the fact that the crime was committed in a location falling under Article 191/10 of the Turkish Penal Code is also of particular importance in determining the sentence.

While recidivism affects the execution regime, Article 191/10 of the Turkish Penal Code directly increases the amount of the sentence to be imposed.

The two institutions are different.

17. Effective Repentance in Drug Use Crimes

Article 192 of the Turkish Penal Code contains special provisions regarding effective repentance for drug-related crimes.

There is a special provision that stipulates that a person who uses drugs will not be punished if they seek treatment from official authorities or health institutions before an investigation is initiated against them for purchasing, accepting, or possessing drugs for personal use.

However, the application of effective repentance depends on the stage of the event and the fulfillment of the conditions stipulated in the law.

An application for voluntary treatment made before an investigation begins, and an application made after an investigation has already started, do not have the same legal effect.

Therefore, a person with drug addiction voluntarily seeking treatment can have significant consequences not only from a health perspective but also, under certain circumstances, from a criminal law standpoint.

18. Relapse into Drug Use in Supreme Court Practice

In Supreme Court rulings, particular importance is given to determining the chronological order of events in cases under Article 191 of the Turkish Penal Code.

The established approach of the Supreme Court of Appeals is that the act of using or possessing drugs again within the probation period should be evaluated within the scope of Article 191/5 of the Turkish Penal Code, and that a second conviction for the same act should be prevented.

Similarly, for recidivism to be considered, the previous conviction have become final before . A judgment that became final later cannot be used retroactively as a basis for recidivism.

Therefore, in drug use cases, basing the defense solely on the argument of "I used drugs or I didn't" may not be sufficient.

Previous decisions and crime dates in a case can sometimes become even more decisive than the factual circumstances of the crime.

19. What should be considered in the defense in drug use crimes?

In cases involving allegations of recidivism or repeat offences under Article 191 of the Turkish Penal Code, the individual's entire criminal record and UYAP (National Judicial Network) files should be examined first.

Especially;

The date of the decision in the previous drug investigation, the date of notification and finalization of the decision to postpone the public prosecution, the start and end dates of supervised release, violation reports, the date of the new incident, the finalization dates and execution dates of previous conviction decisions

It must be determined.

In addition, technical evidence regarding drug use should also be evaluated.

The basis of the defense may include factors such as the results of urine, blood, or hair samples, the forensic examination of the seized substance, the lawfulness of the search and seizure procedures, and whether it can be proven that the substance found on or at the person's location belongs to them.

In cases where drugs are seized, particularly in shared vehicles, homes, or workplaces, the mere presence of a person at the scene does not automatically prove that the drugs belong to them.

Criminal convictions must be based not on probability, but on conclusive and convincing evidence beyond all reasonable doubt.

20. Frequently Asked Questions

If someone is caught with drugs for a second time, will they go to jail?

In every case, a direct prison sentence is not imposed. If the second incident occurs within the period of postponement of the first public prosecution, it may be considered a violation of the previous case, rather than being treated as a separate case under Article 191/5 of the Turkish Penal Code. However, a public prosecution may still be initiated based on the first case due to the violation.

Is using drugs a second time considered relapse?

It is not a standalone offense. For recidivism to be considered under Article 58 of the Turkish Penal Code, the previous conviction must have become final before the new crime is committed.

What happens if drugs are used while on probation?

The use constitutes a violation under Article 191/4 of the Turkish Penal Code. The postponement of the initiation of public prosecution may be lifted, and public prosecution may be initiated against the individual for the initial incident.

Will there be an additional penalty for a second use while on probation?

If the conditions under Article 191/5 of the Turkish Penal Code are met, reuse during the probation period is not subject to separate investigation and prosecution; it is considered a violation.

What happens if someone uses drugs again after a public prosecution has been initiated?

Due to Article 191/6 of the Turkish Penal Code, a decision to postpone the initiation of a public prosecution under Article 191/2 of the Turkish Penal Code cannot be made in a subsequent investigation. The new incident would then become the subject of an independent investigation and prosecution.

Does recidivism mean the penalty is increased by half?

No. Article 58 of the Turkish Penal Code does not automatically increase the penalty by half. Its most important consequence is the application of a special execution regime for repeat offenders.

Will a repeat offender spend more time in prison?

Since recidivism affects the sentencing regime, it can lead to more severe consequences in terms of conditional release. The sentencing rates applied in the first and second instances of recidivism are different. The final sentencing calculation should be made according to the specific characteristics of the case.

CONCLUSION

In drug use offenses, "re-offending" and "recidivism" as defined in Article 58 of the Turkish Penal Code are two distinct legal concepts that must be distinguished from each other.

If a person, against whom a public prosecution has been suspended under Article 191 of the Turkish Penal Code, uses drugs again or purchases, accepts, or possesses drugs for use during the suspension period, a violation under Article 191/5 of the Turkish Penal Code . This act is not subject to separate investigation and prosecution; it leads to the initiation of a public prosecution due to the initial incident.

Conversely, in order to speak of genuine recidivism within the meaning of Article 58 of the Turkish Penal Code, the person's previous conviction for an earlier crime must have become final before the date of the new crime.

When recidivism truly occurs, the primary issue is often not the severity of the punishment but rather the specific sentencing regime for repeat offenders. First and second instances of recidivism can have more severe consequences in terms of conditional release and sentence length.

Therefore, when dealing with a second or subsequent incident in drug use cases, it is incorrect to draw legal conclusions solely based on how many times the offender has been caught. The type of decision in the previous case, whether or not there was a conviction, the date of finalization, the duration of the postponement of the public prosecution, the period of supervised release, and the date of the new offense should all be considered together.

Whether a separate investigation is prohibited under Article 191/5 of the Turkish Penal Code (TCK), whether there is an obstacle to postponing the reopening of a public prosecution under Article 191/6 of the TCK, and whether the recidivism conditions in Article 58 of the TCK have actually been met, are of fundamental importance in determining the verdict and the form of execution of the sentence in drug use offenses.