Drug Case in Turkey: TCK Article 191, KDAE and Missing Service of Process

You live in Germany. Years ago, criminal proceedings for drug possession were initiated against you in Turkey. The prosecutor issued a KDAE decision and imposed probation conditions, but you never found out.

Now a criminal case may be running against you. You may risk detention or arrest the next time you enter Turkey.

This article explains the TCK Article 191 and KDAE problem for Turkish Germans and other people living abroad with a Turkey-related criminal file.

1. The problem: criminal proceedings you do not know about

TCK Article 191 governs possession of narcotics for personal use. Unlike trafficking offences under TCK Article 188, a first-time personal-use case does not usually begin with immediate criminal charges.

Instead, the prosecution is deferred. In Turkish this is called Kamu Davasının Açılmasının Ertelenmesi, abbreviated as KDAE. The suspect is placed under treatment and supervision conditions, known as Tedavi ve Denetimli Serbestlik.

The problem for suspects living in Germany is service of process. The prosecutor issues the KDAE decision and orders the probation conditions. This decision must be served on the suspect. If the suspect lives in Germany and service fails, or is never attempted correctly, they never learn of the conditions.

As a result, they cannot fulfil them. Once the five-year probation period expires, the prosecutor records that the conditions were not met and files charges. In the worst case, a judgment is entered in absentia or an arrest warrant is issued. The suspect in Germany hears nothing of this until they are stopped at a Turkish airport on their next visit.

2. Legal framework: TCK Article 191 in detail

TCK Article 191/1: Purchasing, accepting, possessing or using narcotic or stimulant substances for personal use. Penalty: 2 to 5 years imprisonment.

TCK Article 191/2: For a first offence, prosecution is mandatorily deferred for 5 years. The usual prerequisites under CMK Article 171 do not apply in the same way.

TCK Article 191/3: During the deferral period, the suspect must comply with the imposed obligations and supervision measures.

TCK Article 191/4(a): If the obligations are not fulfilled during the deferral period, criminal charges are filed.

TCK Article 191/4(b): If the suspect reoffends during the deferral period, criminal charges are filed.

Service of process is mainly governed by:

3. Why service of process regularly fails

In practice, service of KDAE decisions on suspects living abroad fails for several reasons.

First, prosecutors often do not check whether the suspect lives abroad. They use the last known Turkish address. If no one is reachable there, public notice may be ordered: publication in a Turkish newspaper that the suspect in Germany will never read.

Second, even when the prosecutor knows that the suspect lives in Germany, service should normally be effected through diplomatic channels under Tebligat Kanunu Article 25. This process takes time and is sometimes bypassed for practical reasons.

Third, KDAE decisions are prosecutorial decisions rather than court judgments. In practice, the level of care applied to service may be lower than for indictments or court judgments.

The result is serious: the suspect in Germany has no knowledge of the KDAE decision, no knowledge of the probation conditions, no opportunity to comply, and is automatically charged when the five-year period expires.

4. Defence strategy: defective service as the central argument

The defence focuses on defective service. If it can be shown that the KDAE decision was not properly served on the suspect, several arguments become available.

First, the probation conditions could not be fulfilled because the suspect had no knowledge of them. Non-compliance is therefore not attributable to the suspect.

Second, charges under Article 191/4 presuppose that the suspect culpably failed to comply with the conditions. Without valid service, culpability is highly contestable.

Third, the right to a fair trial requires that the suspect be aware of the proceedings against them. This is protected by Anayasa Article 36 and ECHR Article 6.

Practical steps include:

5. Legal framework at a glance

Substantive law:

Procedural law:

Service of process:

Constitutional and international guarantees:

6. A typical real-world case

Mr M. is 32 and has lived in Germany for 8 years. He has German citizenship and a Mavi Kart. In 2019, during a holiday in Turkey, he was stopped in a police check and found with a small amount of cannabis. The prosecutor opened an investigation under TCK Article 191.

The prosecutor issued a KDAE decision with a 5-year deferral and ordered Denetimli Serbestlik: regular drug screenings and counselling sessions at the responsible authority. Service of the KDAE decision was effected at Mr M.'s last known Turkish address, his parents' flat in Ankara. Mr M. had lived in Mannheim for years. His parents signed for the document but did not forward it to him.

Mr M. did not comply with the conditions because he knew nothing about them. In 2024, the prosecutor filed charges. Criminal proceedings are now pending before the Asliye Ceza Mahkemesi. In 2025, Mr M. wants to travel to Turkey with his family. A UYAP check by his Avukat reveals an open criminal case with a possible sentence of 2 to 5 years.

Resolution: The Avukat reviews the service records in the case file. Service was effected at the Turkish address even though Mr M. was demonstrably registered in Germany. Service via the diplomatic route under Tebligat Kanunu Article 25 was never attempted. The lawyer submits that service of the KDAE decision was invalid and that Mr M. did not culpably breach the conditions. He applies for proper re-service of the KDAE decision and for a new opportunity to fulfil the probation conditions.

7. A specific issue: probation conditions cannot be fulfilled abroad

A central problem in TCK Article 191 proceedings against suspects living abroad is that the Denetimli Serbestlik Müdürlüğü is a Turkish authority with jurisdiction only within Turkey.

There is no functioning bilateral mechanism between Germany and Turkey that automatically transfers these supervision measures to Germany. This means that even if the suspect were informed of the conditions, they may not be able to comply with them while living and working in Germany.

The defence argument is clear: the impossibility of compliance from abroad is an independent ground of defence. The suspect must not be penalised for a structural gap that was not of their making.

8. What you should do before travelling to Turkey

Before travelling to Turkey, the case status should be checked.

Do not travel to Turkey before the UYAP check is complete. An open TCK Article 191 case can lead to detention at the airport.

9. Doğru Kanzlei: criminal defence in Turkey from Germany

TCK Article 191 proceedings against suspects living abroad require two things: an Avukat who can appear before Turkish criminal courts and a lawyer who understands the specific situation of Turkish Germans, especially the service-of-process problem and the impossibility of fulfilling supervision conditions from abroad.

As a member of the Ankara Bar Association and the Karlsruhe Bar Association under Sec. 207 BRAO, Avukat Hasan Doğru represents clients before Turkish criminal courts. Through UYAP, your case status can be checked in real time. You do not need to travel to Turkey before the defence strategy is clarified.

Frequently Asked Questions

What is a KDAE decision and what does it mean for me?

KDAE stands for Kamu Davasının Açılmasının Ertelenmesi, or deferral of prosecution. For first-time personal-use drug possession under TCK Article 191, the prosecutor does not immediately bring criminal charges. Instead, charges are deferred for 5 years. During this period, probation conditions must be met.

Can criminal proceedings be running against me without my knowledge?

Yes. This is the core problem for Turkish nationals and Turkish Germans living in Germany. The prosecutor is required to serve the KDAE decision, but often uses the last known Turkish address. If no one is reachable there, public notice may be ordered. Formally this can appear as valid service, even though the person in Germany never actually learned about it.

What happens if I did not fulfil the probation conditions?

Once the 5-year deferral period expires without the conditions being fulfilled, the prosecutor may file charges under TCK Article 191/4. A prison sentence of 2 to 5 years may be at stake. The key question for the defence is whether the non-compliance was culpable. If service was invalid, culpability can be challenged.

Can I travel to Turkey if I do not know whether proceedings are running against me?

You should not enter Turkey without a prior UYAP check. Through UYAP, an authorised Avukat can check in real time whether there are open proceedings, arrest warrants or KDAE decisions against you. This check should be completed before travel.

What can I do if the KDAE decision was not validly served?

Defective service is invalid under Tebligat Kanunu Article 32. Your Avukat can apply to the competent court for a finding that service was invalid and for the KDAE decision to be properly re-served. If a judgment in absentia has already been entered, reinstatement under CMK Article 42 may be available.

Can I fulfil Turkish probation conditions from Germany?

As a rule, no. The Denetimli Serbestlik Müdürlüğü is a Turkish authority and has no jurisdiction in Germany. The practical impossibility of compliance from abroad can become an independent defence argument.

How quickly do I need to act?

As quickly as possible. Every day an open case goes unaddressed increases the risk of an arrest warrant or judgment in absentia. If you plan to visit Turkey in the coming months, commission the UYAP check immediately.

Legal notice: This article is for general information purposes only and does not constitute legal advice in an individual case.