COVID-19 in Turkish Prisons and Discrimination Against Political Prisoners

LEFT BEHIND TO DIE: COVID-19 in Turkish Prisons and Discrimination Against Political Prisoners

stockholm center for APRIL, 2021 SCF freedom www.stockholmcf.org

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2 Table of contents

ABOUT STOCKHOLM CENTER FOR FREEDOM ��3 1. INTRODUCTION ��4 2. THE GENERAL STATE OF PRISONS IN TURKEY FOLLOWING THE COUP ATTEMPT AND COVID-19 �� 5 3. ‘TERRORISM’ AND ‘POLITICAL OFFENSES’ IN TURKEY �� 9 4. LAW NO. 7242 ON AMENDMENTS TO THE LAW ON THE EXECUTION OF SENTENCES AND SECURITY MEASURES �� 12 4.1. Changes Made to Mandatory Time Served Prior to Eligibility for Release on Parole �� 12 4.2. Amendments to Special Procedures for the Execution of Sentences ��16 4.3. Changes in Mandatory Time Served Periods �� 16 4.4. Convicted women with children aged 0-6 ��18 4.5. Elderly, ill and frail, and disabled prisoners ��18 4.6. Lifting Disciplinary Punishments ��19

5. THE JUDICIAL COUNCIL (HSK) AFTER THE 2017 CONSTITUTIONAL AMENDMENTS ��20 5.1. The 2017 constitutional amendments relating to the Judicial Council ��20 5.2. Principle of the rule of law ��21 5.3. Equality before the law �� 22 5.4. The principle of non-retroactivity ��24 5.5. The right to life ��25

6. CONCLUSION ��26 stockholm center for SCF freedom

ABOUT STOCKHOLM Stockholm Center for Freedom (SCF) is a non-profit advocacy organization CENTER FOR FREEDOM that promotes the rule of law, democ- racy and human rights with a special focus on Turkey. SCF was set up by a group of journalists who have been forced to live in self-exile in Sweden against the back- drop of a massive crackdown on press freedom in Turkey. SCF is committed to serving as a ref- erence source by providing a broad- er picture of rights violations in Turkey, monitoring daily developments, doc- umenting individual cases of the in- fringement of fundamental rights and publishing comprehensive reports on human rights issues. SCF is a member of the Alliance Against Genocide, an international co- alition dedicated to creating the international institutions and the political will to prevent genocide.

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2 1. INTRODUCTION Turkey, which ranks second in the number of inmates per capita Countries resort to different mea- among OECD countries3 and ac- sures against COVID-19 depending commodates many more prisoners on the severity of the pandemic than the capacity of its prisons, has and their capabilities. Among major also taken some precautions to pre- measures are limiting inter person- vent the spread of the pandemic in al physical contact, encouraging so- prisons.1 In this context, deputies cial distancing and promoting good from the ruling Justice and Devel- hygiene such as frequent washing opment Party (AKP) and its ally the of the hands as well as mask wear- Nationalist Movement Party (MHP) ing, testing, contact tracing and iso- drafted Law No. 7242 on Amend- lation. In the most serious pandem- ments to the Law on the Execution ic of our century, many countries of Sentences and Security Measures have also introduced special regu- as well as Certain Other Laws. The lations to ensure the well-being of draft was adopted by parliament prisoners, who have limited means and the law entered into force on of protecting themselves against May 15, 2020 despite an outcry from the virus and are more exposed to the public, particularly concerning it due to the physical circumstanc- its discriminatory provisions.4 es of prisons. As a general principle of law, the protection of the right to An amnesty law in essence, the life and the well-being of prisoners amendments to the Law on the Ex- is the sole responsibility of the gov- ecution of Sentences and Security ernment. The UN High Commis- Measures5 sparked much criticism sioner for Human Rights has thus in national and international cir- called on all governments to re- cles.6 The focal point of the criticism lease prisoners to stem the spread was the exclusion of tens of thou- of coronavirus in prisons.1 In the US, sands of political prisoners from the Canada, Germany, Iran, Poland and scope of the new law by an increas- many other countries, some prison- ingly authoritarian government ers were released within the con- while releasing only those convict- text of combating the spread of the ed of non-political crimes, irrespec- coronavirus.2 tive of gravity.

1 “UN urges prisoner releases to stem spread of coronavirus¨, France24, 25 March 2020, https://www.france24.com/en/20200325-un-urges-prisoner-releases-to-stem-spread-of-coronavirus 2 Kieran Oberman, “COVID-19 prisoner releases are not a matter of mercy, but of justice,” World Economic Forum, April 27, 2020, https://www.weforum.org/agenda/2020/04/covid-19-prisoner- releases-not-mercy-but-justice/; Jago Russel, “Covid-19 in Europe’s prisons and the response,” Euobserver, 18 May 2020, https://euobserver.com/opinion/148385 3 Erin Duffin, “Incarceration rates in OECD countries as of May 2020,” Statista, May 20, 2020, https://www.statista.com/statistics/300986/incarceration-rates-in-oecd-countries/ 4 Law No 7242 dated 14/04/2020; Official Gazette (OG) dated 15/04/2020 numbered 31100, at https://www.resmigazete.gov.tr/eskiler/2020/04/20200415-16.htm 5 Law No 5275 on the Execution of Sentences and Security Measures is shortened as the Law on Execution of Sentences in the Turkish literature and legal practice. 6 Amnesty International, Joint Public Statement Turkey: ‘Rights groups call for urgent release of imprisoned journalists, human rights defenders and others, now at risk of Covid-19’, March 30, 2020; https://www.amnesty.org/download/Documents/EUR4420472020ENGLISH.pdf; Bar Human Rights Committee of England & Wales, “Statement: Political prisoners in Turkey in the face of the COVID-19 pandemic,” April 3, 2020, https://www.barhumanrights.org.uk/political-prisoners-in-turkey-in-the-face-of-the-covid-19-pandemic/

4 This report details how the government is pursuing a political agenda by adopting such a law during the COVID-19 pandemic and how its discriminatory actions against dissidents continue without exception. The first chapter covers COVID-19 and the general state of prisons in Turkey. The second chapter explores how the concept of “terror offens- Speaking to press on the night of July 15, 2016, es” has been instrumentalized and Erdoğan called the coup attempt ‘a gift from God”. misused as a pretext to oppress and His son-in-law, then-Energy Minister Berat Albayrak, sitting on his right, appeared quite happy. criminalize political dissidents, for the most part since a coup attempt ing, after announcing that the coup on July 15, 2016. The third chapter had been suppressed, the Turkish examines blatantly discriminatory government immediately started amendments to Law No. 5275 on a huge purge of military officers, the Execution of Sentences made judges, police officers, teachers and by Law No. 7242 on April 14, 2020 other government officials, which targeting political prisoners. The ultimately led to the summary dis- fourth chapter includes a study of missal of more than 130,000 public amendments to the Law on the Ex- servants, including 4,156 judges and ecution of Sentences with Law No. prosecutors, as well as 20,571 mem- 7242 in light of the basic principles bers of the armed forces for alleged of the rule of law. The report ends membership in or relationships with a discussion of the govern- with “terrorist organizations” by ment’s responsibility, particularly in emergency decree-laws subject to terms of the right to life resulting neither judicial nor parliamentary from the discriminatory nature of scrutiny. the amendments made to the Law on the Execution of Sentences. Erdoğan immediately accused US-based Turkish cleric Fethullah 2. THE GENERAL STATE Gülen and the group inspired by his OF PRISONS IN TURKEY FOLLOWING THE COUP teachings known as the Gülen or ATTEMPT AND COVID-19 Hizmet movement of mastermind- ing the coup attempt. According to Turkey experienced a controversial a statement from Interior Minister military coup attempt on the night Süleyman Soylu on February 20, a of July 15, 2016 which, according to total of 622,646 people have been many, was a false flag aimed at en- the subject of investigation and trenching the authoritarian rule of 301,932 have been detained, while President Recep Tayyip Erdoğan by 96,000 others have been jailed due rooting out dissidents and elimi- to alleged links to the Gülen move- nating powerful actors such as the ment since the failed coup. The military in his desire for absolute minister said there are currently power. The abortive putsch killed 25,467 people in Turkey’s prisons 251 people and wounded more than who were jailed on alleged links to a thousand others. The next morn- the Gülen movement.7 Thousands

5 or in their homes. The count did not include asymptomatic positive cases, he said, ignoring a question about the number of new positive coronavirus cases per day, a key indicator of where the outbreak is headed in any country.11 After public criticism, Koca announced the total number of new positive cases on November 25, 2020. According to Photos of former deputy policy inspector Mustafa Kabakçıoğlu, 44, who died in a COVID-19 quarantine his statement, the number of daily cell in prison on August 29, shed light on the unsani- cases was 28,351, the third highest tary conditions in which he was forced to live. in the world.12 of other political opponents of the It is, however, even more diffi- government, such as Kurdish activ- cult to get reliable information ists and human rights defenders, on COVID-19 cases in prisons. In a were also detained in the aftermath press statement on November 8, of the coup attempt. 2020, the Directorate General for Prisons and Detention Centers said Official records indicate that the COVID-19 cases were seen in 117 first COVID-19 case in Turkey ap- of the country’s 368 prisons. One 8 peared on March 10, 2020. Accord- hundred twenty inmates were un- ing to Ministry of Health data as of dergoing treatment for COVID-19 March 18, 2021, COVID-19 related and their general health was good. 9 deaths totaled 29,777. However, 13 According to the statement, all there have been claims that the real 12 inmates who died of COVID-19 number of deaths is much higher had histories of hospitalization and than officials announce.10 Health chronic disease. Ten of them had Minister Fahrettin Koca acknowl- chronic illnesses such as tubercu- edged during a news conference losis, asthma, diabetes and chron- on September 30, 2020 that since ic obstructive pulmonary disease July 29, Turkey had been reporting (COPD). Two of them died due to the number of patients with symp- complications with their immune toms being cared for in hospitals systems.

7 “İçişleri Bakanı Soylu, Gara'ya giden HDP'li vekili açıkladı” [Interior Minister Soylu revealed the identi- ty of the HDP deputy who visited Gara], Anatolian News Agency, https://www.aa.com.tr/tr/turkiye/icisleri-bakani- soylu-garaya-giden-hdpli-vekili-acikladi/2151784 8 “Turkey confirms first coronavirus case, wins WHO praise for vigilance,” Reuters, March 10, 2020, https://www.reuters.com/article/us-health-coronavirus-turkey/turkey-confirms-first-coronavirus-case-wins- who-praise-for-vigilance-idUSKBN20X1PG 9 “Türkiye’de COVID-19 Hasta Tablosu,” [COVID-19 in Turkey, Patient Table], Ministry of Health of Turkey, https://covid19.saglik.gov.tr/ 10 “Coronavirus Death Toll Soars in Turkey,” The New York Times, April 20, 2020, https://www.nytimes.com/2020/04/20/world/coronavirus-cases-news.html#link-255b042a 11 “Turkish govt accused of hiding true extent of virus outbreak”, The Associated Press, October 1, 2020, https:// apnews.com/article/virus-outbreak-health-media-turkey-social-media-146084425135560e5e3f6c8961391cc8 12 “Turkey’s surge to top 3 in the world in daily coronavirus cases explained,” Turkish Minute, November 26, 2020, https://www.turkishminute.com/2020/11/26/turkeys-surge-to-top-3-in-the-world-in-daily-coronavirus-cases-explained/ 13 Kovid-19 Pandemi Sürecinde Ceza İnfaz Kurumları [Prisons During the COVID-19 Pandemic], Directorate General of Prisons and Detention Centers, https://cte.adalet.gov.tr/Home/SayfaDetay/kovid-19-pandemi-sure- cinde-ceza-infaz-kurumlari08112020080948

6 No 7242.16 Given that the Ministry of Justice does not publish current information on prisons, which have also been closed to civilian, inde- pendent monitoring, it is extremely hard to access audited, reliable statistics regarding prisons.

A report17 dated May 10, 2020 by the Human Rights Association’s Prisons Turkey’s prisons suffer from overcrowding since the July 15, 2016 coup attempt Commission reads:

At a press conference on November “In all applications to our commission, it 19, 2020, the Prisons Commission of is stated that prisoners do not even have Turkey’s Human Rights Association access to satisfactory infirmary services; there are no general hospitals on prison (İHD), however, said the number campuses; referrals to general hospitals of sick inmates in Turkish prisons could take months; and problems with ac- was considerably higher than re- cess to health and medical care are ongo- vealed by the Ministry of Justice.14 ing. As reported, the right of prisoners to According to the Turkish Statistics health and medical care is being violated Institute (TurkStat), as of Decem- by failure or belated referrals to infirma- ber 31, 2019 there were a total of ries; referrals to general hospitals months 291,546 inmates (detained pending later even in emergencies; failure to take inmates to check-ups, examinations and trial or imprisoned after sentenc- laboratory tests on time; rear handcuffing 15 ing) across 350 prisons in Turkey. of prisoners on the way to hospitals; taking Normally, Turkish prisons have a prisoners to hospitals in shuttles with cells, combined capacity of 114,000 peo- nicknamed ‘cages’; refusal to take prison- ple, while their “extended” capaci- ers who object to strip-searches to hos- ty is 218,950 – extended by adding pitals; members of the gendarmerie not bunkbeds and limiting living space leaving rooms during medical examina- for inmates. Yet still, Turkish prisons tions; keeping inmates handcuffed during examinations; and forcing examination or house over 290,000 inmates in total. treatment in handcuffs and in the pres- It is estimated that approximately ence of gendarmes. Moreover, although 90,000 prisoners were released fol- it is well-known that prison conditions are lowing the entry into force of Law conducive to the proliferation of the dead-

14 “Number of sick inmates considerably higher than revealed by Ministry of Justice: İHD,” Stockholm Center for Freedom, November 25, 2020, https://stockholmcf.org/number-of-sick-inmates- considerably-higher-than-revealed-by-ministry-of-justice-ihd/ 15 “Turkey’s prison population increased by 10 percent to 291,546 in 2019: TurkStat,” SCF, https://stockholmcf.org/turkeys-prison-population-increased-by-10-percent-to-291546-in-2019-turkstat/ Genel Bilgi [General Information], Directorate General of Prisons and Detention Centers, https://cte.adalet.gov.tr/Home/SayfaDetay/cik-genel-bilgi#:~:text=2019%20y%C4%B1l%C4%B1nda%202%20 adet,a%C3%A7%C4%B1k%20yap%C4%B1mlar%C4%B1%20tamamlanarak%20hizmete%20al%C4%B1n- m%C4%B1%C5%9Ft%C4%B1r. 16 “CHP, 90 bin kişinin cezaevinden tahliyesinin 1 Temmuz 2000’de yapılmasını istedi!”, Sabah, April 14, 2020, https://www.sabah.com.tr/gundem/2020/04/14/chp-90-bin-kisinin-cezaevinden-tahliyesinin- 1-temmuz-2020de-yapilmasini-istedi 17 “Marmara Bölgesi Hapishaneleri (Ocak – Şubat – Mart 2020) Hak İhlalleri Raporu,” İnsan Hakları Derneği, [Marmara Region Prisons (January – February – March 2020) Report on Rights Violations, Human Rights Association] May 10, 2020. https://www.ihd.org.tr/marmara-bolgesi-hapishaneleri-ocak-subat-mart-2020-hak-ihlalleri-raporu/

7 ly coronavirus, appropriate preventative person. Since the number of toilets and measures have not been taken. While shower facilities were built for the ideal prisoners should have been provided with capacity of the prisons and because the personal hygiene products free of charge, number of detainees staying in one ward inmates cannot access sufficient clean- is well over that capacity, every 25-30 de- ing materials even with payment. These tainees have to share 1 toilet and 1 shower circumstances have increased the risk of and this causes long queues. Taking into contraction for all inmates, but put pris- consideration, the limited availability of oners over 65 years of age and those with hot water as well, the opportunity for tak- chronic and serious medical conditions at ing a shower is very limited. For instance, tremendous risk.” in some prisons, such as the Bandirma Type T Prison, each detainee can only take As stated in detail in an extensive a shower once a week, and for only 5 min- report on prisons in Turkey by the utes. In prisons with poor conditions, due 18 Platform for Peace and Justice , to the shortage of beds, some detainees most Turkish prisons do not meet have to sleep on bedding laid out on the the standards to accommodate de- floor.” tainees and prisoners: With widespread detention, lav- “It has been observed that the facilities in atories and showers designed to 72 out of 80 prisons are inadequate. To accommodate the ward’s normal name a few examples: the gym in the capacity can be insufficient in the Karabuk Prison is used as a ward and “extended” capacity prisons with there are only 3 shower facilities and 3 the addition of further bunkbeds toilets in a ward where 100 detainees are staying together. In the women’s section and hence even exceeding the “ex- of the Tarsus Prison, 70 women are de- tended” capacity. The European tained in a ward for 17 people, and in the Committee for the Prevention of men’s section, 60 detainees are staying in Torture and Inhuman or Degrading a ward for 26 people. In the Düzce Prison, Treatment or Punishment (CPT) 25 people are detained in a ward for 8 peo- confirms the above detailed obser- 19 ple; in the Bursa TYPE H Prison, 18 detain- vations as follows: ees are staying in a ward for 8 people; in the Bandirma Type T Prison, 42 detainees “The problem of prison overcrowding re- are staying in a ward for 22 people, in the mained acute, and the steady increase in the size of the prison population already Izmir Aliaga Closed Prison, 28 detainees observed in the mid-2000s continued. are staying in a ward for 12 people; in the With the exception of Diyarbakır Juvenile Manisa Type T Closed Prison, 30 detainees Prison, the official capacities of all the are staying in a ward for 14 people; in the establishments visited were being great- Osmaniye Type E T Closed Prison, 24 peo- ly exceeded at the time of the visit. Con- ple are detained in a ward for 10 people; sequently, a large number of inmates in 42 detainees are staying in a ward for 15 these prisons did not have their own bed people in the Burdur Type E Closed Prison; and had to sleep on mattresses placed on …while in the Manisa Type E Closed Prison the floor. Moreover, in some living units, for women, in a space of 33 square me- prisoners were even obliged to share matters, 30 inmates are being detained, which tresses, as no floor space was left for addi- means only 1 square meter is allowed per tional mattresses.”

18 In Prison 2017, “A Comprehensive Report on the Prison Conditions in Turkey”, Platform for Peace & Justice, p. 8. http://www.platformpj.org/wp-content/uploads/IN-PRISON-2017.pdf 19 Council of Europe, Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 6 to 17 May 2019, CPT/Inf (2020) 24, p. 4, at https://rm.coe.int/16809f20a1

8 3. ‘TERRORISM’ 20 AND ‘POLITICAL susceptible to arbitrary interpreta- OFFENSES’ IN TURKEY tion.21 This ambiguity enabled the Article 1 of Law No. 3713 on Counter- government to instrumentalize terrorism defines the terror offense: the concepts of terror offense and terror offenders to suppress critics, “Terror(ism) is all criminal actions taken by especially in the aftermath of the a person or persons who are members of coup attempt on July 15, 2016. an organization with a view to altering the characteristics of the Republic enshrined Erdoğan has stated that “there is in the Constitution, namely the political, no difference between a terrorist legal, social, secular and economic order; with arms and bombs and the per- disrupting the unity of the state with its son who subordinates his/her title, country and people; disrupting the exis- tence of the Turkish state and the Repub- position and pen to terrorists to lic; endangering the internal and external help them achieve their goals. The security of the state; enfeebling, toppling title of member of parliament, ac- or seizing the state authority; abolishing ademic, author, journalist or NGO basic rights and freedoms; disrupting the executive does not change the fact internal and external security of the state, that these people really are terror- public health and order, through pres- sure, intimidation, attrition, suppression or ists. It could be that the ones who threats by means of using force and vio- pull the trigger or set off the bombs lence.” are terrorists, but it is these aiders and abettors in the latter group Article 2 of Law No. 3713 defines the that enable such actions to achieve “terror offender” as: their goals.”22 This statement is just one example of the approach of “(1) Any person who is a member of an Erdoğan’s autocratic and dictatori- organization established to achieve the al regime to dilute and misuse the goals stated in Article 1 and who commit- concept of “terror(ism).” Under the ted crimes in unison or with other mem- pretext of the July 15, 2016 coup at- bers, or who is a member of such an orga- tempt, judges and prosecutors, in- nization even though that person did not commit the crime furthering the goals of cluding members of the Constitu- the organization, is a terror offender. tional Court, the Supreme Court of Appeals, the Council of State and (2) Those who are not members of a terror the Council of Judges and Prosecu- organization but commit offenses tors, and members of parliament, in the name of that organization shall also academics, authors, journalists, be deemed terror offenders.” NGO representatives, teachers, police officers, human rights activists The fact that the terror offense and and many others were detained in the terror offender defined in such the tens of thousands. Hundreds of a broad sense is contrary to the thousands were the subjects of ter- principle of the legality of crimes rorism investigations and millions and the principle of foreseeability were labelled as terrorism affiliates. as they are not clearly defined is

20 In the Turkish legislation and literature, the term ‘terror’ is often (albeit not always) used within the meaning of ‘terrorism’ without meaning any clear distinction between the both. 21 Sami Selçuk, “Hukukçuların Bildirisi Üzerine,” [On Law Experts’ Declaration] T24, May 12, /2020, https://t24.com.tr/yazarlar/sami-selcuk/hukukcularin-bildirisi-uzerine,26587 22 “Erdoğan: Terörün tanımı yeniden yapılmalı,” [Erdoğan: Terror(ism) should be redefined] CNNTÜRK, March 11, 2016. https://www.cnnturk.com/video/turkiye/erdogan-terorun-tanimi-yeniden-yapilmali

9 The US State Department, in its (HSYK, currently Council of Judges Country Reports on Terrorism 2019: and Prosecutors [HSK]) elections Turkey, states that Turkey defines against candidates backed by the terrorism very broadly to include government, supporting opposi- “crimes against constitutional or- tion candidates25 or signing a dec- der and internal and external se- laration titled ‘We Refuse to be curity of the state” and utilizes this Accomplices to this Crime” as an definition “to criminalize exercise academic to halt the atmosphere of freedom of expression, freedom of conflict and human rights abus- of assembly, and other human es was enough to be charged with rights.” Citing Turkey’s Ministry of membership in a terrorist organi- Interior, the report states that the zation.26 The following lawful and “authorities referred more than innocuous activities falling within 10,000 social media accounts to ju- the sphere of exercising basic rights dicial authorities for alleged terror- and freedoms are considered crim- ism-related propaganda in the first inal activities under the prevailing quarter of the year alone, with more than 3,600 users facing legal action for their social media activities.” 23

In fact, following the coup attempt on July 15, 2016, the government-controlled judiciary and law enforcement interpreted the concept of terrorism so broadly that it became virtually impossible to remain outside its scope as critics of the government. The dismissal of judicial practice: depositing money 4,463 judges and prosecutors on in the Gülen-affiliated Bank Asya; accusations of membership in an enrolling one’s children in Gülen-af- armed terrorist organization and in- filiated schools; possessing US $1 vestigations into hundreds of judg- bills; using the ByLock instant mes- es and prosecutors on the same saging app; working at or subscrib- charges24 have led to the emer- ing to newspapers such as Zaman gence of a judiciary totally depen- or Sızıntı; and sharing posts on so- dent on and subordinate to the cial media critical of the govern- government. As a result, being a ment. Hundreds of thousands have government critic in Turkey means been subjected to criminal prose- assuming the risk of facing terror- cution based on such trumped-up ism charges, detention and convic- terrorism charges, leaving tens of tion. thousands imprisoned.27 Indeed, running for office in High Council of Judges and Prosecutors The government turned terrorism

23 “Country Reports on Terrorism 2019: Turkey,” U.S Department of State, https://www.state.gov/reports/country-reports-on-terrorism-2019/turkey/ 24 “Turkey’s post-coup crackdown,” Turkey Purge, https://turkeypurge.com/ 25 Ufuk Yeşil, Hukuk ve İnsan Hakları Bağlamında Ohal Uygulamaları [State of Emergency Practices in the Light of the Law and Human Rights], May 2019, p. 153 et seq. 26 “Turkey: Academics on Trial for Signing Petition,” Human Rights Watch, December 5, 2017, https://www.hrw. org/news/2017/12/05/turkey-academics-trial-signing-petition

10 investigations into a way to stifle view, in a number of cases, the alleged the opposition, and there has been ill-treatment was of such severity that it an increase in torture allegations could be considered as amounting to torture.” for suspects taken into custody as part of those investigations. Many The 2019 report also states that al- reports claim that the government leged ill-treatment in detention is adopted a policy of tolerating tor- still at an alarming level, despite a ture instead of conducting effec- decrease in numbers compared to tive investigations into such allega- the 2017 figure.31 tions.28 Moreover, there have been many instances in which Gülen-af- 4. LAW NO. 7242 ON filiated persons were abducted in AMENDMENTS TO THE black Transporter vans and were LAW ON THE EXECUTION missing for long periods of time.29 OF SENTENCES AND SECURITY MEASURES On another note, Turkey had Law No. 7242 dated April 14, 2020 blocked the publication of the CPT’s comprises 69 articles and amends 11 reports on Turkey different laws, of which the primary in 2017 and 2019 until August 5, one is Law No. 5275 on the Execu- 2020. According to the 2017 report: tion of Sentences and Security Mea- 30 sures.32 The overcrowding in prisons “The delegation received a considerable even under normal circumstances number of allegations from detained per- motivated the government to seek sons (including women and juveniles) of measures to decrease the prison recent physical ill-treatment by police and population, and as a result Law No. gendarmerie officers, in particular in the 7242 on Amendments to the Law Istanbul area and in south eastern Tur- on the Execution of Sentences and key. Most of these allegations concerned Security Measures was enacted. It excessive use of force at the time of ap- may be argued that the principal prehension. In addition, many detained motivation of this law was to limit persons claimed that they had been phys- the number of cases and deaths in ically ill-treated inside law enforcement establishments, with a view to extracting the event the COVID-19 pandemic a confession or obtaining information or spread to prisons by decreasing the as a punishment. Some detained persons number of inmates. Although the alleged that electric shocks had been in- preamble of Law No. 7242 does not flicted upon them by police officers with specifically refer to the pandemic, body-contact shock devices. In the CPT’s it would be correct to consider the

27 Turkey’s contempt for the rule of law, Report by Stockholm Center for Freedom, September 2017; https://stockholmcf.org/wp-content/uploads/2017/09/Turkeys-Contempt-for-The-Rule-of-Law.pdf ; 28 “Turkey: Events of 2019,” Human Right Watch, https://www.hrw.org/world-report/2020/country-chapters/ turkey; “Turkey: Enforced Disappearances, Torture,” Human Right Watch, April 29, 2020; https://www.hrw. org/news/2020/04/29/turkey-enforced-disappearances-torture; “Opposition MP says at least 46 people tortured in police custody in Turkish capital, “December 21, 2019,https://ahvalnews.com/torture/opposition-mp-says-least-46-people-tortured-police-custody-turkish-capital 29 “Turkey: Investigate Ankara Abductions, Disappearances,” Human Right Watch, August 3, 2017, https://www.hrw.org/news/2017/08/03/turkey-investigate-ankara-abductions-disappearances; “Black Transporter Report: some of the abducted 28 people are still missing…” Bold, https://boldmedya.com/ en/2019/06/24/black-transporter-report-some-of-the-abducted-28-people-are-still-missing/ 30 “Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 23 May 2017”, https://rm.coe.int/16809f209e 31 “Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 6 to 17 May 2019” Council of Europe, August 05, 2020, https://rm.coe.int/16809f20a1

11 wording of Temporary Article 9/5 -- Exceptions are: “due to the fact that the COVID-19 “Those who are convicted of: pandemic has been detected in our country” -- as the principal motiva- a) murder (Articles 81, 82 and 83) and tion behind the adoption of the law. sentenced to a term of imprisonment; b) aggravated injury on account of its On the other hand, all media out- consequences (Article 87, Paragraph 2, lets, including those close to the Subparagraph d) and sentenced to a term government, referred to the bill as of imprisonment; an “amnesty” during preliminary c) torture (Articles 94 and 95) and tor- debates, debates in the general ment (Article 96) and sentenced to a term assembly and after publication of of imprisonment; the law in the Official Gazette and d) sexual assault (Article 102, excluding 33 its entry into force. As explained Paragraph 2), sexual intercourse with a in detail in the following chapters, minor (Article 104, excluding Paragraphs 2 it is clear that Law No. 7242 consti- and 3) and sexual harassment (Article 105) tutes “amnesty” legislation given and sentenced to a term of imprisonment; that Temporary Article 6 allows for e) sexual offenses (Articles 102, 103, 104 a once-only early release from pris- and 105) and sentenced to imprisonment, on for offenses committed before a committed by a minor; designated date and the execution f) offenses against privacy and confiden- of sentences without imprisonment tiality (Articles 132, 133, 134, 135, 136, 137 and for certain other offenses. The de- 138) and sentenced to a term of imprison- tailed discriminatory amendments ment; made with Law No. 7242 to Law No g) “production and trade” of narcotics or 5275 on the Execution of Sentences and Security Measures and various psychotropic substances (Article 188) and other laws are analyzed below. sentenced to imprisonment, committed by a minor; and h) offenses against state confidentiali- 4.1. Changes made to mandatory ty and espionage (Articles 326 to 339) and time served prior to eligibility for sentenced to a term of imprisonment release on parole Article 48 of Law No. 7242 amends shall benefit from release on parole the period of a prison sentence re- only if they complete two-thirds of quired to be served prior to eligibili- their sentences in prison. Moreover, ty for release on parole as stipulated the mandatory time served shall be in Article 107 of the Law on the Ex- two-thirds of the original sentence ecution of Sentences. Accordingly, in cases of establishing and man- the mandatory time to be served aging organizations for the pur- was decreased from two-thirds to pose of committing crimes or of- one half the original sentence for fenses committed in the course of eligibility for release on parole for the organization’s activities; minors many types of offenses. However, convicted of offenses within the persons convicted of specified of- scope of the counterterrorism law; fenses are excluded from this re- and convictions of offenses includ- duction of mandatory time served. ed within the scope of

32 For Law No. 5275 dated December 13, 2004, see OG dated 29/12/2004 numbered 25685; https://www.mevzuat. gov.tr/MevzuatMetin/1.5.5275.pdf 33 “Ceza İnfaz Kanunu Af”, [The Law on Execution of Sentences Amnesty] June 25, 2020, https://www.google. com/search?q=ceza+infaz+kanunu+af&rlz=1C1CHBF_en-GBGB777GB777&sxsrf=ALeKk02iHQxfh- qSj4fn75387s2oj8Uqczg:1591459858621&source=lnms&tbm=isch&sa=X&ved=2ahUKE- wiFlrD8ye3pAhWGOcAKHXtwAio4ChD8BSgCegQIDBAE&biw=1366&bih=625

12 Law No. 2937 on the National Intel- one year; and violation of privacy ligence Services and National In- (Article 134), one month. Moreover, telligence Agency, dated January the mandatory term served for the 1,1983.” offense of membership of a terrorist organization, whose lower limit Although amendments to the Law is five years’ imprisonment as per on the Execution of Sentences de- Article 314/2, has been amended to crease mandatory time served for three-fourths the original sentence, benefiting from parole to half the specific only to this group of offens- original sentence, the bill introduces. It is clear that the legislature par- ing the amendment does not pro- adoxically provides favorable condi- vide a reasoning as to why certain tions for the enforcement of certain offenses are excluded. It is also not offenses for which it normally fore- plausible why the offenses listed above are excluded from the appli- sees heavier penalties due to the cation of the amendment because nature of the wrongdoing. Howev- the exclusions are not based on er, in doing so, the legislature ig- the conduct of the offenders34 nor nores the subject of the offense, the on the upper limits of the crime in way the offense is committed and question or legal classifications of the nature of the wrongdoing that offenses. For instance, in the fol- the actions entail, and just lumps lowing offenses, whose prescribed certain crimes together to exclude 35 upper sentence limits are very high, them from the scope of the law. the mandatory time served will be The fact that “terrorism” and “espi- one-half the original sentence: Of- onage”-related crimes, which could fenses against property (Articles 141, be regarded as “political crimes,” 142, 143), 27 years; robbery (Articles were not added to the scope of the 148, 149), 15 years; embezzlement law means the exclusions list was (Article 247), 18 years; extortion (Ar- compiled with the government’s ticle 250), 12 years; bribery (Article political priorities in mind. 252), 18 years; and calumny (Article 267), 45 years. On the other hand, in Another category of crimes whose the following offenses, whose pre- mandatory time served for release scribed lower sentence limits are as on parole has been changed is the follows, the mandatory time served crime of establishing and manag- will be two-thirds the original sen- ing organizations for the purpose tence: sexual harassment (Article of committing crimes or offenses 105), three months; sexual inter- committed in the course of the or- course with a minor (Article 104), ganization’s activities (organized two years; violation of confidential- crime). Article 107/4 of Law No. ity of communication (Article 132), 7242 reduces the mandatory time

34 İzzet ÖZGENÇ, Adem SÖZÜER, ve Mahmut KOCA, Ceza ve Güvenlik Tedbirlerinin İnfazi Hakkinda Kanun Ile Bazi Kanunlarda Değişiklik Yapilmasina Dair Kanun Teklifi”nin Değerlendirilmesi, (Bilimsel Görüş) İstanbul Üniversitesi Hukuk Fakültesi [Özgenç-Sözüer-Koca], [İzzet ÖZGENÇ, Adem SÖZÜER, and Mahmut KOCA, A critique of the Draft Law on Amendments to the Law on Execution of Sentences and Security Measures as well as Certain Other Laws (Academic Opinion) Istanbul University Law Faculty] April 10, 2020, p. 7; https://cezahukuku- hukuk.istanbul.edu.tr/tr/duyuru/anabilimdali-baskanimiz-prof-dr-adem-sozuerin-prof-dr-izzet-ozgenc-ve-prof- dr-ma-5700450059007600410046007500590058005900370039007900700046006200610041004F003200 370077003200 35 Özgenç-Sözüer-Koca, p. 7.

13 served to two-thirds from three- ity for release on parole, however, fourths of the original sentence shall be three-fourths of the origi- for organized crime. However, the nal sentence.” “terror offenses” which have been recently instrumentalized by the Two matters deserve scrutiny re- government-controlled judiciary to garding the legislature’s approach purge critics in Turkey seem to be to terrorism offenses. First, the Law left out of the scope of the law with on the Execution of Sentences pre- “specific intention.” Under the clas- scribes a mandatory time served sification of the Turkish Criminal of three-fourths of the original Code, terror offenses are a sub-cat- sentence solely for offenses falling egory of organized crime. Although within the scope of the Counter- organized crime benefits from the terrorism Law instead of the usu- advantageous terms of the amend- al two-thirds. Second, although all ment, the so-called ‘’terror offens- release on parole matters are reg- es’’ do not, which may, in current ulated by Law on the Execution of judicial practice, include actions Sentences No. 5275, Law No. 7242 such as posting a tweet critical of (the early release law) adds a parole the president or having any link to or association with a social group without committing any actual offenses.

Article 17 of Counterterrorism Law No. 3713 stipulates that Article 107/4 of Law on the Execution of Sen- tences No. 5275 shall apply to parole conditions for convictions within its Devlet Bahçeli seen during his visit to Alaattin Çakıcı scope of application. As per Article in the hospital. 107/4, release on parole is normally subject to three-fourths of the sen- provision exclusive to terrorism of- tence having been served in con- fenses as an addition to Article 17 of victions related to organized crime. the Counterterrorism Law.36 In oth- This is reduced to two-thirds of time er words, the Counterterrorism Law served with Law No. 7242. As such, is the only statute that includes a prisoners convicted on terrorism release on parole provision other charges would also normally have than those found in the Law on the benefitted from this new regula- Execution of Sentences in contra- tion. However, Article 65 of Law No. diction to the judicial system and 7242 prevents prisoners convicted the legislature’s law-making pro- of terrorism to benefit from the re- cedures. The fact that Law No. 7242 ductions brought about by Article does not reduce the mandatory 107/4. time served to qualify for parole for Article 65 states that “The following terrorism offenders while reducing sentence shall be appended to Arti- the same for the offenders of cre- cle 17, Paragraph 1 of Counterterror- ating and leading crime organiza- ism Law No. 3713 dated 12/04/1991. tions (excluding terrorism) reveals “Mandatory time served for eligibil- that the government pursued a

14 particular agenda when drafting 4.2. Amendments to special this law. Alaattin Çakıcı, a notori- procedures for the execution of sentences ous organized crime boss who had been incarcerated for 16 years, was Article 50 of the early release law released under Law No. 7242. Dev- amends Article 110 -- “Special Pro- let Bahçeli, chairman of the MHP, cedures for the Execution of Sen- an ally of the ruling AKP, had vis- tences” -- of the Law on the Exe- ited the mob boss in the hospital cution of Sentences. Paragraph 1 and pressed for the adoption of a of the amended article stipulates law that would ensure Çakıcı’s re- that “upon the request of a person 37 lease. The government’s fine tun- convicted of a premediated crime, ing allowed for political prisoners to a sentence of a total of one year, remain incarcerated for longer peri- six months and in offenses involv- ods as ‘’terror offenders,’’ while mob ing negligence, with the excep- bosses were released as “ordinary” tion of involuntary manslaughter, organized crime offenders. three years or less” may be served by spending either the weekends Rights organizations, including or the nights in prison. According Amnesty International, published to Paragraph 2 of the same article, a joint statement arguing that Law a judge “may decide that convicts No. 7242 would block the release may serve time in their residences of political prisoners and called on in cases where the sentences are the government not to discrimi- a) a total of one year for women, nate in measures taken to mitigate minors and people over the age of the serious health risks posed by 65; COVID-19.38 Similarly, the Bar Hu- man Rights Committee of England b) a total of two years for people & Wales criticized the fact that po- over 70; and litical prisoners were not released c) a total of four years or less for from prison and called on the gov- people over 75.” ernment not to discriminate.39 Amendments to Article 110/9.a of the Law on the Execution of Sentences stipulates that terror offenders may not benefit from the provisions of special procedures for execution of sentences set out in Paragraphs

36 Vildan Yirmibeşoğlu, “İnfaz Kanununda 7242 Sayılı Yasa İle Yapılan Değişiklikler Bağlamında Terörle Mücadele Kanunu Kapsamında Verilen Hapis Cezalarında Şartlı Salıverme Oranı”, [The Rate of Executed Imprisonment Sentences within the Scope of Counter-terrorism Law for Eligibility to Parole within the Context of Amendments made to the Law on Execution of Sentences with Law No. 7242] TURKAY Journal, 2020 May, Y: 4, V: 33, p. 3. 37 “Alaattin Çakıcı: İnfaz düzenlemesiyle tahliye edilen 'organize suç örgütü lideri' kimdir?,” [Alaat- tin Çakıcı: Who is the ‘organized crime boss’ released with the new executions regulation] BBC, 16 April 2020, https://www.bbc.com/turkce/haberler-turkiye-52296799; “Alaattin Çakıcı da tahliye edildi,” [Alaattin Çakıcı is released too] DW, April 16, 2020, https://www.dw.com/tr/alaattin-%C3%A7ak%C4%B1c%C4%B1-da-tahlie- edildi/a-53142459 38 Amnesty International, ‘Joint Public Statement Turkey: Rights groups call for urgent release of imprisoned journalists, human rights defenders and others, now at risk of Covid-19’, March 30, 2020; https://www.amnesty. org/download/Documents/EUR4420472020ENGLISH.pdf 39 Bar Human Rights Committee of England & Wales, “Statement: Political prisoners in Turkey in the face of the COVID-19 pandemic,” April 3, 2020, https://www.barhumanrights.org.uk/political-prisoners-in-turkey-in-the- face-of-the-covid-19-pandemic/

15 1 and 2 of Article 110. Excluding po- those who are mentally or physical- litical prisoners from these special ly incapacitated and unable to de- provisions for women, minors and fend themselves those over the age of 65, 70 and 75 • Torture demonstrates that the government • Torment specifically targeted and discrimi- • Sexual offenses nated against political prisoners. • Offenses against privacy and con- fidentiality 4.3. Changes in mandatory • Production and trade of narcotics time served periods or psychotropic substances • Offenses defined in Book 2, Part 4, One of the major changes intro- Chapters 4, 5, 6 and 7 of the Turk- duced by the early release law in- ish Criminal Code as well as crimes volves mandatory time to be served that fall within the scope of Law on periods. Probation constitutes an Counterterrorism No. 3713 dated alternative method of the execu- April 12, 1991 tion of sentences that entails the discharge of a convicted person “Offenses that fall within the scope under certain conditions before re- of the amnesty are:41 lease on the parole date with a view • Threat to rehabilitating that person. Article • Blackmail 105/A of the Law on the Execution • Coercion of Sentences titled “Execution of • Deprivation of liberty sentences by means of probation” • Prevention of the right to educa- stipulates that a convict who has tion and training “equal to or less than one year” to • Prevention of the right to enjoy serve until the parole date may be public services released from prison on probation. • Prevention of the exercise of political rights Temporary Article 6/1 of Law No. • Prevention of the exercise of free- 7242 introduces a “three year” pe- dom of belief, thought and convic- riod instead of a “one year” peri- tion od as originally foreseen in Article • Home invasion 105/A of the Law on the Execution • Polluting the environment of Sentences for crimes committed • Counterfeiting money or docu- before March 30, 2020 with the ex- ments ception of certain offenses. Offens- • Bid rigging es that may not benefit from this • Unlawful money lending amendment which are depicted as • Embezzlement a “special collective amnesty”40 are: • Extortion • Murder • Bribery • Willful injury and aggravated inju- • Influence peddling ry on account of its consequences • Calumny to lineal kinship, spouse, sibling or • Laundering proceeds of crimes

40 Selami Er, “AYM eski raportörü yazdı: ‘İnfaz indirimi’ yasası iptal edilir mi?”, [Former Constitutional Court Rap- porteour: Will ‘execution reduction’ law be annulled ?] Kronos, April 21, 2020, https://kronos34.news/tr/aym-eski-raportoru-yazdi-infaz-indirimi-yasasi-iptal-edilir-mi/

16 (money laundering) It would be too difficult to reconcile • Acting contrary to measures to this understanding of justice with contain contagious disease the principles of the rule of law or any modern criminal justice system It is clear that in determining the because these amendments obli- scope of the law, the characteristics gate political offenders with lighter or gravity of offenses are not used prescribed sentences to effective- as guidelines.42 When considered ly serve longer terms of imprison- together with the regulations on ment, while more serious offenders release on parole (see section 3.1 are set free. above), for instance, a six-year sentence for one of the offenses listed 4.4. Convicted women with above (offenses falling within the children aged 0-6 scope of an amnesty) would be As per Article 105/A Paragraph 3/a served without any actual imprisonment by direct transfer to proba- of the Law on the Execution of Sen- tion. That is because the mandatory tences, “convicted women with chil- time served required for eligibility dren aged 0-6 who have less than for parole for the offenses listed in or equal to two years to serve until the case of a six-year imprisonment their parole” may be released on is one-half the original sentence, probation. Temporary Article 6/2 of which makes the sentence three Law No. 7242 stipulates that for of- years for the purposes of release on fenses committed before March 30, parole and at the same time ren- 2020 by women with children aged ders the offender eligible for release 0-6, the two-year period as original- on probation. As a result, a six-year ly set out in Article 105/A be applied sentence would be considered to as “four years” excluding the offens- have been served without any actu- es listed below. This would mean, al time in prison. Similarly, a person taking into account that release on sentenced to eight years of impris- parole will be granted after serv- onment due to a bribery conviction ing half the sentence, an eight-year (Article 252 of the Turkish Penal sentence, for instance, would be ex- Code) would be released after serv- ecuted without spending any time ing only one year in prison. behind bars for convicted women with children aged 0-6. Conversely, a person sentenced to eight years of imprisonment for The offenses excluded from the membership in a terrorist organi- scope of Temporary Article 6/2 are: zation because of his/her lawful activities such as exercising free- • Murder dom of expression and conscience • Sexual offenses or freedom of assembly, which do • Offenses against privacy and con- not constitute crimes in their own fidentiality right, could only be released after • Offenses defined in Book 2, Part 4, serving five years of their sentence. Chapters 4, 5, 6 and 7 of the Turk-

41 Adem Sözüer, Twitter, April 12, 2020, https://twitter.com/AdemSozuer/status/1249443049182199809?s=20 42 Özgenç-Sözüer-Koca, p. 10

17 ish Criminal Code as well as offens- were excluded from this regulation es falling within the scope of the as well: Counterterrorism Law. • Murder • Sexual offenses “Terrorism offenses,” a government • Offenses against privacy and con- instrument to prevent political pris- fidentiality oners from benefitting from any • Offenses defined in Book 2, Part 4, favorable regulations, are again at Chapters 4, 5, 6 and 7 of the Turkish play within this context. The differ- Criminal Code as well as the offenc- ence is that in this instance not only es falling within the scope of the the prisoner herself but her children Counterterrorism Law. aged 0-6 are also targeted. This regulation not only ignores the best in- The last sentence of Article 105/A, terest of the child as enshrined in Paragraph 3 of the Law on the Exe- the UN Convention on the Rights cution of Sentences stipulates that of the Child but also disregards the “illness and frailty, disability or el- scientifically proven, destructive ef- derliness shall be documented by a fects of incarceration on children’s panel of physicians of a full-fledged physical, mental and social devel- hospital as determined by the Min- opment for the sake of keeping po- istry of Justice or by the Council of litical prisoners behind Forensic Medicine.” That is to say, bars for longer periods. even though a state of illness, disability or elderliness has been offi- 4.5. Elderly, ill and frail, and cially and positively documented disabled prisoners by a panel of physicians in the case Article 105/A, Paragraph 3/b of the of political prisoners, such persons Law on the Execution of Sentences would be discriminated against provides that “Elderly, ill and frail, without a legitimate basis as they and disabled prisoners who cannot are excluded from the scope of the look after themselves and have less legislation. It is inexplicable why a than or equal to three years to serve 75-year-old incarcerated due to his until parole” may be released on political convictions who cannot probation. Temporary Article 6/2 of take care of himself would remain Law No. 7242 stipulates that for of- behind bars, while another person fenses committed before March 30, in a similar condition but convicted 2020, sentences of “convicted per- of other ordinary crimes would be sons who are over 70 years of age” released. The government demon- and “ill, frail or disabled convicted strates a clear discriminatory stance persons who are over 65 years of even against vulnerable political age and cannot look after them- prisoners. selves may be served by way of the application of probation as stipulat- Professor of criminal law Adem ed in Article 105/A regardless of the Sözüer criticized these regulations prison term left to be served until in an interview, saying:43 parole and of the maximum prison “The amendments stipulate that if a moth- term limits.” er has a child of up to six years of age, she should be released, but [the legislature] However, the following offenses has inserted an exception for offenders of

18 certain offenses. If the legislation introduc- that may be imposed by the prison es a regulation for women with children, administration such as restricting you cannot discriminate between women on the basis of the offense. Similarly, the or barring communications, limit- Ministry of Justice can obtain a medical ing visitations and placing the pris- report for people over 65 if they suffer from oner in solitary confinement. In the certain illnesses and their symptoms go event a disciplinary punishment is beyond elderliness and can release them. given to an inmate, varying periods There are no maximum prison term limits, either. Regardless of the sentence … even up to a year, depending on the pun- there, [you] discriminate based on certain ishment as prescribed by Article 48 offenses.” of the Law on the Execution of Sen- tences, must elapse after the exe- The World Health Organization cution of the sanction so that the (WHO) declared (a) people over 60 offender’s disciplinary penalty can years old and (b) people with un- be lifted by the prison administra- derlying health conditions such as tion. lung or heart disease, diabetes or conditions that affect the immune Lifting disciplinary penalties is cru- system to be vulnerable and at high cial in two respects: a) If an inmate’s risk.44 conduct requires additional disciplinary action within the prescribed Despite these warnings, the gov- time period after the execution of ernment made special efforts to a disciplinary penalty, a more se- keep political prisoners from these two high-risk groups behind bars vere sanction shall be applied; and where they are most vulnerable b) the prescribed time period must against COVID-19. Preventing wom- also elapse in order for inmates to en with children aged 0-6 and el- obtain a certificate of good stand- derly, ill and frail or disabled people ing. Without a certificate of good who cannot take care of themselves standing, prisoners may not be re- from benefitting from the new leg- leased on probation. islation through targeted provisions clearly shows that the government Temporary Article 9/1 of Law No. intentionally discriminates against 7242 stipulates that disciplinary political prisoners. penalties will be immediately lifted if they have already been served, regardless of the time and the deci- 4.6. Lifting disciplinary punishments sion required under Article 48. Even in such a critical regulation the fol- Articles 38 and the provisions that lowing provision has been added to follow it of the Law on the Execu- the relevant article: “with the exclu- tion of Sentences regulates disci- sion of offenses defined in Article plinary punishments and sanctions 220 and Book 2, Part 4, Chapters 4,

43 “Prof. Adem Sözüer'den infaz paketi değerlendirmesi: Bu yasa Anayasa Mahkemesi’ne gider, 'Rahşan Affı' gibi kapsamı genişleyebilir.” [Prof. Adem Sözüer on executions bill: This will go to the Constitutional Court, its scope may expand as in ‘Rahsan Amnesty’.] T24, April 13, 2020. https://t24.com.tr/haber/prof-adem-sozuer-den-infaz-paketi-degerlendirmesi-bu-yasa-anayasa-mahkemesi-ne-gider-rahsan-affi-gibi-kapsami-genisleyebilir,872519 44 “COVID-19: vulnerable and high risk groups” World Health Organization, https://www.who.int/westernpacific/ emergencies/covid-19/information/high-risk-groups

19 5, 6 and 7 of Criminal Code No. 5237, Counterterrorism Law.45 In other sexual offenses and offenses that words, “terror offenders” has be- fall within the scope of Law No. 3713 come a unique group to which the as well as Article 9 Paragraph 3 of most severe probation regime is ex- the Law.” As such, terrorism offend- clusively applied. ers and thus political prisoners are once again excluded from the ben- There is no legal justification in efits of the legislation. terms of the structure of the law or legislative procedure for the gov- 5. CRITIQUE OF AMENDMENTS ernment to add a special execution TO THE LAW ON THE clause to Article 17 of the Counter- EXECUTION OF SENTENCES terrorism Law. The goal here seems INTRODUCED BY LAW NO. 7242 to be clearly political: to keep polit- 5.1. Structure of the law and ical prisoners incarcerated as long legislative procedure as possible. In other words, the gov- There is a plethora of legislative acts ernment uses its majority in parlia- under Turkish criminal law that pre- ment to adopt laws that target its scribe sentences of imprisonment critics. for various offenses. Forestry Law No. 6831, Anti-Smuggling Law No. The following statement of profes- 5607, Check Law No. 5941, Bank- sor of criminal law Adem Sözüer ing Law No. 5411, Turkish Criminal demonstrates how Code No. 5237, Enforcement and Law No. 7242 was drafted behind Bankruptcy Law No. 2004 and Tax closed doors to serve the govern- Law No. 213 are some examples of ment’s particular political goals: laws that prescribe terms of impris- “The draft had not been sent to any member of academia who was onment. However, the rules relat- specialized in these issues. Nobody ing to the execution of sentences had this text beforehand. It was and the calculations of mandatory brought to the parliament at the time served are carried out in ac- last minute. When we met with the cordance with the Law on the Ex- speaker of parliament or group ecution of Sentences. Article 65 of deputy chairmen, we figured that Law No. 7242 appends to Article 17 unfortunately there was not much of the Counterterrorism Law the we could do.” 46 following provision: “However, the mandatory time served in matters of probation shall be three-fourths of the original sentence.” This article has altered the structure of the Law on the Execution of Sentences by introducing a stand-alone time to serve regulation exclusive to the

45 Vildan, p. 2. 46 “Prof. Adem Sözüer'den infaz paketi değerlendirmesi: Bu yasa Anayasa Mahkemesi’ne gider, #39;Rahşan Affı' gibi kapsamı genişleyebilir.” [Prof. Adem Sözüer on executions bill: This will go to the Constitutional Court, its scope may expand as in ‘Rahsan Amnesty’.] T24,April 13, 2020, https://t24.com.tr/ haber/prof-adem-sozuer-den-infaz-paketi-degerlendirmesi-bu-yasa-anayasa-mahkemesi-ne-gider-rahsan-affi-gibi-kapsami-genisleyebilir,872519

20 5.2. Principle of the rule of law age the public peace.49 Moreover, the joint statement says that “Con- Article 2 of the Turkish Constitution stitutional rights such as freedom stipulates that Turkey is a country of expression and the right to a fair governed by the rule of law. Accord- trial, of those who were convicted ing to the Constitutional Court, “In on ambiguous charges of aiding a state governed by the rule of law, and abetting or membership in a the law and the Constitution have terrorist organization or dissem- absolute overarching authority on inating terrorist propaganda are all state organs including the leg- simply disregarded. These people islature. The legislature is always were in reality tried and convicted bound by the superior provisions of only because they expressed their 47 the law and the Constitution.” thoughts, through journalistic activities or through other means, In other words, even though the or attended demonstrations.” legislature has discretion, within the confines of the general principles of law and the constitution, over how 5.3. Equality before the law to make laws, it is essential that Article 14 of the European Con- they strive to draft them in such a vention on Human Rights (ECHR) manner that the laws benefit the and Article 10 of the Turkish Con- entire public and contain general, stitution safeguard the principle of objective and fair measures that equality before the law. This princi- 48 fulfil equitable principles. ple is considered to be one of the building blocks of a democratic so- Yet, it appears that the underlying ciety because it protects individuals motive behind the introduction of from the arbitrary actions of gov- Law No. 7242 has been, from the ernments. Both the ECHR and the start, not to strive for the public Constitution explicitly and positive- good but to prevent the release of ly bar discrimination on the basis political prisoners at all costs. The of political convictions. Indeed, ac- whole process of lawmaking, from cording to the Constitutional Court, the moment the bill is introduced a violation of the principle of equal- until its adoption by parliament, ity is considered to be a violation of clearly demonstrates that. the principle of the rule of law.50

A joint statement on Law No. 7242 In fact, Article 2/1 of the Law on the by 11 renowned Turkish legal ex- Execution of Sentences (Basic Prin- perts underscores that regula- ciple of the Execution of Sentences) tions on reducing mandatory time states that “rules pertaining to the served do not seek the public good execution of sentences and securi- but criminalize the political oppo- ty measures shall be applied with- sition, lay the groundwork for vio- out any discrimination whatsoever lations of the right to life and dam- in regards to philosophical convic-

47 Constitutional Court Decision of 27/05/1999, Case No. 1998/58, Decision No. 1999/15, OG dated 4/03/2000 numbered 23983. 48 Alparslan Altan, Kanun Yapma Tekniği [Legislative Tecniques], Symposium, Ankara 2015, p.12 http://tbbyayin- lari.barobirlik.org.tr/TBBBooks/545.pdf

21 tions, ethnic or social roots, politi- years before parole instead of two cal or other opinions and thoughts, years as originally stipulated in Ar- economic/financial means and oth- ticle 105/A with the exception of po- er social statuses.” litical prisoners; • “Convicted persons over 70 years Likewise, all the relevant interna- of age” and “elderly, ill and frail or tional and domestic legal instru- disabled prisoners over 65 years of ments prohibit discrimination on age who cannot take care of them- different grounds including those selves” are allowed to be released based on “political opinions.” regardless of the remaining prison sentence with the exception of po- Despite these safeguards and as litical prisoners (Temporary Article 6 discussed above in detail: of the Law on the Execution of Sen- tences); and • The mandatory time served for el- • Disciplinary penalties and sanc- igibility for release on parole is re- tions are lifted “if they are executed duced to one-half from two-thirds regardless of the time and the deci- of the original sentence with the sion prescribed by Article 48” with exception of political prisoners (Ar- the exception of political prisoners. ticle 107 of the Law on the Execu- tion of Sentences); Under Article 61 of the Turkish • Certain categories of prisoners Criminal Code, courts determine are allowed to spend weekends or sentences considering the indi- nights in prison as part of the exe- vidual circumstances and conse- cution of their sentences with the quences of the offense as well as exception of political prisoners (Ar- the characteristics of the offender ticle 110 of the Law on the Execution (the so-called individualization of of Sentences); sentencing). After sentencing, the • A “special collective amnesty” pro- execution of sentencing phase be- vision allows for early release with gins, and the goal in this phase is to three years to serve remaining in- rehabilitate the prisoner and inte- stead of one year as originally set grate them back into the society. In out in Article 105/A of the Law on the fact, in a 1991 decision regarding the Execution of Sentences, entailing Counterterrorism Law the Constitu- a two-year reduction in sentences tional Court stated the following: with the exception of political pris- “… the execution of a sentence aims to re- oners; habilitate the convict and to reintegrate • Women with children aged 0-6 them back into society, regardless of the shall be released on probation four nature of the offense in question.

49 For the joint statement of former member of the Constitutional Court Ali Güzel, Prof. Dr. Cem Eroğul, Prof. Dr. Ergun Özbudun, Ass. Prof. Kerem Altıparmak, Prof. Dr. Köksal Bayraktar, Prof. Dr. Oktay Uygun, Prof. Dr. Os- man Can, Prof. Dr. Ozan Erözden, Dr. Rıza Türmen, the first Turkish judge to serve in ECtHR, Prof. Dr. Rona Aybay and Prof. Dr. Yaman Akdeniz, see T24, May 04, 2020, https://t24.com.tr/haber/11-hukukcudan-infaz-yasasi-aciklamasi-anayasa-mahkemesi-nin-esitlik-gozetmeyen-toplumsal-barisa-zarar-veren-yanlisliklari-duzeltecegine-inaniyoruz,876453 50 İNCEOĞLU, Sibel (2001) ‘Türk Anayasa Mahkemesi ve İnsan Hakları Avrupa Mahkemesi Kararlarında Eşitlik ve Ayrımcılık Yasağı Çerçevesinde Af, Şartla Salıverme, Dava ve Cezaların Ertelenmesi’, Anayasa Yargısı, [Amnesty, Probation, Postponement of Trials and Sentences within the Context of the Principle of Equality and Prohibition of Discrimination in Turkish Constitutional Court and European Court of Human Rights Decisions. Constitutional Law] 17 (1): 41-70, https://dergipark.org.tr/en/pub/anayasayargisi/issue/52001/678098

22 Fulfilling this aim requires the implemen- and as such, pave the way for vio- tation of a separate program irrespective lations of the right to life. Lenient of the offenses. All efforts are aimed at execution of sentences and spe- eliminating the psychological, environ- mental, social and individual factors [that cial amnesty provisions are enact- led to the offenses] through a specific pro- ed based on political choices or as gram for the execution of sentences that a favor. Acts of political opposition, prevents the repeat of offenses. Such a however, are excluded regardless of program should be regulated based on whether they include any element the observable good conduct of the of- of violence or not. Thus, the public fender during the execution of the sentence, not on the offense itself. This in turn good is not strived for and the prin- necessitates an execution of sentence ciple of equality is violated without regime based on the same principles for any legitimate grounds.” 52 all convicts, without any discrimination, and the monitoring of the outcomes. Ear- ly release of one of two convicts who were 5.4. The principle of sentenced to an equal prison term based non-retroactivity solely on the type of offense entails differ- Article 65 of Law No. 7242 adds the ential execution of the same sentence and following provision to Article 17/1 of leads to inequality. the Counterterrorism Law: “How- The modern approach to probation is to ever, the mandatory time served in determine the time to release on proba- matters of probation shall be three- tion based on observations regarding the fourths of the original sentence.” improvement of the convict’s behavior, As discussed in detail above, the provided that the minimum term is served motive behind adding this provi- for the offense in question. According to this approach, the offense that led to con- sion to the Counterterrorism Law is viction does not have a determining role in to prevent political prisoners from the probation decision. benefitting from the provisions introduced by Law No. 7242. By in- As such, a discriminatory approach to troducing a new provision to the probation among offenders who are sentenced to equal prison terms is not com- Counterterrorism Law and apply- patible with the principle of equality being it retroactively, the principle of fore the law enshrined in Article 10 of the non-retroactivity is violated. Constitution, and there is no legitimate basis for such discrimination.51 “ The principle of no punishment without law as enshrined in Article The joint statement of 11 law experts 7 of ECHR and Article 38/1 of the mentioned above criticizes the fact Constitution prohibits retroactive that acts in the “nature of political application of a new law unfavor- opposition” are excluded from the able to the offenders, while allow- scope of the new execution of sen- ing such an application if the later tence regulations by maintaining law is favorable to the offenders (lex that: “Although COVID-19 is cited as praevia). In this context, Article 7/2 the main motive for the new reg- of the Criminal Code stipulates that ulation, discriminatory provisions if laws in force at the time of the of- violate the right to health, which is fense and laws adopted later on are directly related to the right to life, different, the provisions favorable to

51 Constitutional Court Decision of 08/10/1991, Case No. 1991/34, Decision No. 1991/34, Official Gazette dated 12.12.1991 numbered 21079, https://normkararlarbilgibankasi.anayasa.gov.tr/ND/1991/34?EsasNo=1991%2F34

23 the offender should be applied and The government’s intent to aggra- enforced. In Turkish criminal law, vate the execution of sentences for the non-retroactivity of laws is iron political offenders is obvious not clad and there are no alternative in- only in the way new laws are enact- terpretations in this regard. ed in a manner contrary to the basic principles of criminal law, but also Article 17/1 of the Counterterrorism in the manner of how such laws are Law reads: “For persons convicted enforced by the government-con- of crimes that fall within the scope trolled judiciary. Indeed, Chairman of this law with regard to parole and of the 3rd Criminal Chamber of the probation sanctions, Article 107, Supreme Court of Appeals Osman Paragraph 4 and Article 108 of Law Atalay prepared a note titled “Man- No. 5275 on the Execution of Sen- datory Time Served for Probation” tences and Security Measures dat- that was “especially for the benefit ed December 13, 2004 shall be ap- of judges and prosecutors.” Accord- plied.” Until the adoption of Law No. ing to the note, “in offenses in which 7242, the provisions of Article 107/4 the date of the offense is prior to of the Law on the Execution of Sen- March 30, 2020,” “mandatory time tences had applied to persons con- served for terror offenders convict- victed under the Counterterrorism ed under the Counterterrorism Law in regards to the matter of pro- Law shall be three-fourths of the bation. Law No. 7242 has amend- original sentence.” This note was ed Article 107/4 and decreased the also shared on social media by AKP mandatory time served to two- Deputy Chairman Yılmaz Tunç.53 thirds instead of three-fourths of the original sentence. Under Article It goes without saying that such a 7/2 of the Criminal Code, this favor- “note” would be perceived as “in- able provision should have been ap- structions” and that judges and plicable to all offenses committed prosecutors would act accordingly. before the law entered into force. This is especially true given the con- With the sentence appended to stant anxiety that judges and pros- Article 17/1 of the Counterterrorism ecutors have been living through Law, the mandatory time served since the huge purge that started has remained three-fourths of the in the aftermath of the coup at- original sentence for crimes under tempt of July 15, 2016. After all, one- the scope of the law. However, the third of all members of the judiciary provision added to Article 17/1 of the (4463 judges and prosecutors) were Counterterrorism Law is explicitly dismissed on accusation of links to unfavorable for offenders and was terrorist organizations; many judg- adopted later. Therefore, it may be es and prosecutors including mem- argued that it shall not be applica- bers of the Constitutional Court, the ble to offenses committed before Supreme Court of Appeals and the its date of entry into force. Council of State were imprisoned;

52 “11 hukukçudan ‘infaz yasası’ açıklaması: Anayasa Mahkemesi’nin; eşitlik gözetmeyen, toplumsal barışa zarar veren yanlışlıkları düzelteceğine inanıyoruz,” [A statement on the Law on Execution of Sentences by 11 law experts: We believe the Constitutional Court will correct the fallacies that disregard equality and disturb commu- nal peace.] T24, May 4, 2020, https://t24.com.tr/haber/11-hukukcudan-infaz-yasasi-aciklamasi-anayasa-mahkemesi-nin-esitlik-gozetmeyen-toplumsal-barisa-zarar-veren-yanlisliklari-duzeltecegine-inaniyoruz,876453

24 and new investigations into serving against COVID-19 are of tremen- judges and prosecutors on terror- dous importance. ism charges still continue.54 Under these circumstances, excluding political prisoners from the early release regulations introduced by Law No. 7242 paves the way for violations of the right to life and in cases of actual death, it constitutes a violation of the right to life. The fact that such discriminatory regulations are not applied even to “elderly, ill and frail, and disabled who cannot take care of themselves,” European Court of Human Rights building in Stras- who are in the high-risk group, bourg demonstrates the scale of violations posed to the right to life of inmates 5.5. The right to life in Turkish prisons. States have positive obligations to ensure the right to life as enshrined in Article 2 of the ECHR. That is to say, a state must not only refrain from intentionally and unlawfully killing a person but also take positive steps to protect the right to life and eliminate threats to life. Article 17 of the Turkish Constitution also safeguards the right to life as an in- alienable right.

The World Health Organization (WHO) called for special precautions in prisons, saying inmates are particularly vulnerable to the COVID-19 pandemic.55 Turkey’s prison population is especially vulnerable due to severe overcrowding, dif- ficulty in accessing health services and a shortage of cleaning prod- ucts56 . As such, special precautions

53 Yılmaz Tunç, Twitter, April 18, 2020, https://twitter.com/yilmaztunc/status/125157838966655041?s=20 54 “Turkey’s post-coup crackdown,” Turkey Purge, https://turkeypurge.com/ 55 “Prevention and control of COVID-19 in prisons and other places of detention,” World Health Organization, https://www.euro.who.int/en/health-topics/health-determinants/prisons-and-health/focus-areas/prevention- and-control-of-covid-19-in-prisons-and-other-places-of-detention 56 “Marmara Bölgesi Hapishaneleri (Ocak – Şubat – Mart 2020) Hak İhlalleri Raporu,” İnsan Hakları Derneği, [Mar- mara Region Prisons (January – February – March 2020) Report on Rights Violations, Human Rights Association] May 10, 2020, https://www.ihd.org.tr/marmara-bolgesi-hapishaneleri-ocak-subat-mart-2020-hak-ihlalleri-raporu/

25 6. CONCLUSION issue to the Constitutional Court for annulment. As the global war on the COVID-19 pandemic started to gain traction, On July 17, 2020 the Constitutional the Turkish government enacted Court partly rejected the CHP’s ap- Law No. 7242 on Amendments to plication, which argued that some the Law on the Execution of Sen- of the provisions of Law No. 7242 tences to reduce the number of had the characteristics of an amnes- inmates in severely overcrowded ty and therefore the parliamentary prisons. The new law allowed for quorum should have been three- the early release of prisoners by de- fifths rather than a simple majority. creasing the period of time required This part of the application was re- to be served for eligibility for parole jected by the Constitutional Court, and probation as set by Law No. but by only nine votes to seven. In 5275 on the Execution of Sentences. other words, seven members of the Constitutional Court had the view Law No. 7242 was drafted in secre- that some of the provisions of the cy by the government in such a way Law on the Execution of Sentences as to prevent any political prison- were of the nature of an amnesty.57 er from benefitting from its provi- The substantive issues of the appli- sions. As explained above, political cation filed by the CHP are still ex- prisoners have been excluded with pected to be examined separately specific intent from all reductions by the Constitutional Court.58 in prison terms for eligibility for parole and probation. This approach Discriminatory provisions of Law is obvious in the letter of the law in No. 7242 continue to pave the way question. The early release law even for violations of the right to life safe- excluded women with children and guarded by the Turkish Constitu- the highest risk groups of political tion and basic international legal prisoners, such as the elderly, from norms. States’ responsibility for its scope. The government was deaths in prison is strictly regulat- clearly intent on punishing politi- ed and regarded as an objective cal prisoners once again through a responsibility giving rise to positive discriminatory regime of the execu- rights for individuals under inter- tion of sentences. national law. Therefore, it could be argued that the government shall Discriminatory provisions of the be responsible for all deaths in pris- early release law violate the princi- on after the enactment of Law No. ples of the rule of law, equality be- 7242 due to the discriminatory pro- fore the law and the right to life as visions excluding political prisoners defined in the ECHR and the Turk- from its scope. ish Constitution. As a matter of fact, the main opposition CHP took the

57 For Constitutional Court Decision of 17.07.2020, Case No. 2020/44, Decision No. 2020/41, see Resmi Gazete [Official Gazette] dated 07/10/2020 and numbered 31267, available at https://www.resmigazete.gov.tr/eskiler/2020/10/20201007-7.pdf 58 “AYM CHP’nin infaz yasası başvurusunu reddetti” [Constitutional Court rejects CHP’s enforcement law petition], Birgün, July 17, 2020, https://www.birgun.net/haber/aym-chp-nin-infaz-yasasi-basvurusunu-reddetti-308703