Government’s latest judicial reform package confirms that “thought is the most serious crime” as journalists, other political prisoners convicted of terrorism-related charges continue to be held in closed prisons while thousands of others convicted of ordinary crimes are released
The legislative package on the execution of sentences, a hot topic discussed for months, came into force on 15 April 2020 after being published in the Official Gazette, and subsequently thousands of people convicted of ordinary crimes began to be released from prisons. Although the government had said that persons convicted of organized crime, murder, extortion and theft would be outside the scope of the package, numerous such convicts have been released under the package. Convicts who were being held in open prisons and who committed all kinds of crimes are now being released on parole under house arrest due to the coronavirus pandemic. This two-month parole period can be extended three times and will be deducted from the time spent in prison. Following the package, those who are mainly held in closed prisons are journalists, politicians, writers, students, rights defenders who have never been involved in any violent acts but were convicted under the Turkish Anti-Terror Law, which is constantly criticized for its ambiguous wording. They were not only exempted from a reduced sentence but deprived of the ability to exercise their rights such as house arrest, early parole, or easy transition to open prisons. The package has thus confirmed that “thought is the most serious crime.”
Despite intense criticism and more than 200 motions submitted by the opposition, the package was not amended at the Turkish Grand National Assembly. Only a handful of provisions were amended, including the abolition of the provision on “probation,” which otherwise would lead to any person convicted of any crime to be sent to prison, even if they received very low sentences. If this system had been enacted, a person sentenced to 10 months of imprisonment would have to spend eight months in prison. The provision was removed from the package.
However, the long list of “prisoners of thought,” including Selahattin Demirtaş, Osman Kavala, Ahmet Altan, Selçuk Mızraklı, Barış Terkoğlu, Ferhat Çelik, Barış Pehlivan, Murat Ağırel and many others was completely left out of the package. So are all detainees.
Those who caused death with injury or committed the crimes of extortion, theft, corruption, and sexual harassment were included in the package. Despite stating that “crimes committed against individuals can only be forgiven by the victims of these crimes,” the government included convicts who committed these crimes in the package. Crimes allegedly committed against the state were not covered by the package.
The General Assembly also expanded the provision that excluded “terrorism” charges from the early release bill. This provision now also applies to “espionage” charges, preventing Kavala and the journalists recently jailed on the charge of “violating the Law on State Intelligence Services and the National Intelligence Organization” from taking advantage of the package in the future.
Implicit amnesty regulation
The package actually grants amnesty for certain crimes. However, if the bill was openly and officially called an amnesty, the government would have to settle with the opposition and the Parliament could only enact the package through a qualified majority. Thus, the bill was publicly declared to grant a “reduction” in sentences for certain convictions. The sentences were reduced by half, and three years of the remaining imprisonment period will be subjected to probation. Accordingly, for instance, while a person sentenced to 6 years of imprisonment for corruption can be released immediately, someone who allegedly “served the interests of terrorist organizations” for reporting about this corruption will remain in prison for 4 years.
The package is unequal and discriminatory in its current form. Even if the Constitutional Court takes future steps to correct this situation, irreversible damages have been done due to the fact that crimes against individuals have already been forgiven. With the introduction of personalized systems and permanent provisions, the regime for the execution of penalties is now regulated in an unfair manner, which will have repercussions in the future. The package ripped a large piece from the already crooked justice system and took away a larger piece of trust in the justice system.
Let's now take a detailed look at the content of the package that led to these criticisms:
POWERS OF THE JUDGESHIPS OF EXECUTION: The powers of the judgeships of execution were broadened. The judges of execution will be authorized to review complaints, decide on whether prisoners are entitled to be released, and approve parole for prisoners who have committed serious crimes. The judgeships of execution will be established in every city.
METHODS OF 12 SEPTEMBER JUNTA LEGALIZED: With the package, it is now legal for persons convicted of or in detention on terrorism charges to be taken from prison for 15 days for interrogation by state institutions other than law enforcement or public prosecutors. The provision makes it possible for this interrogation method, frequently used around the time of Turkey’s 12 September 1980 coup, to be used by intelligence officers from this point onwards.
INCREASED SENTENCES, EASY PAROLE: If the crime of deliberate injury is committed through a monstrous feeling, such as throwing nitric acid on the victim’s face, the sentence received will be doubled. There will be no additional increase due to the use of weapons. In cases of death as a result of injury, the upper limit of the sentence has been increased from 16 years to 18 years. However, these convictions are covered in the package, with the exclusion of aggravated injury. Therefore, those who committed these crimes are eligible for three years of probation and their sentence will be reduced by half. Similarly, the upper limit of prison sentences for usury crimes was raised from five years in prison to six. And despite the increase in sentence, this crime is also subject to reduction of sentence and early parole.
INCREASED SENTENCES FOR ORGANIZATIONAL CRIME: Those who establish and lead crime organizations will be sentenced to prison between 2 to 6 years. The sentence for membership of an organization, which was previously punishable by 1 to 3 years in prison, was increased to between 2 to 4 years, in addition to not being eligible for early release.
DETAINEES GUILTIER THAN CONVICTS: Although the government has been claiming that the bill was drafted as a “measure against the coronavirus outbreak," interestingly, no steps were taken for detainees. Through the amendments introduced, persons convicted by courts are eligible for early release whereas detainees, including those who have yet to appear before a judge, will have to spend this risky period in prisons. Prisoners with severe illness and disabilities, as well as those who are pregnant or who gave birth within the past 6 months are the only exceptions. These prisoners will be freed under judicial control instead of being detained. The execution of the sentences of women who are pregnant or who gave birth within the past 6 months will be delayed by 18 months.
DIRECT TRANSFER TO OPEN PRISONS: A system of execution of sentences directly in open prisons was introduced. Persons convicted of terrorism related charges will not be eligible for this system as well. Repeat offenders, those who are convicted of crimes against sexual inviolability and whose release on parole is revoked are also non-eligible. Accordingly, those who receive a prison sentence of 3 years or less for deliberately committed crimes and 5 years or less for negligently committed crimes as well as whose judicial fine was converted to imprisonment and those who receive imprisonment for duress under the Enforcement and Bankruptcy Law will serve their sentences directly in open prisons.
OPEN PRISONS’ DOORS OPEN: Prison administrative boards will decide on whether prisoners held in closed prisons for other crimes can be transferred to open prisons, depending on whether they have followed the discipline rules. Transfers of prisoners who are sentenced to imprisonment for more than 10 years and convicted for deliberate killing, terrorism and narcotic crimes, and crimes against sexual inviolability will be possible with the approval of the judges of execution after the decisions of the administrative boards. If approval is not granted, they will not be eligible for transfer to open prisons.
HOME CONFINEMENT AND OTHER TYPES OF CONFINEMENT: Opportunities provided to prisoners held in open prisons were improved. Those convicted of the above mentioned crimes have again been excluded. Those eligible, who are already being held in open prisons and who work for a public institution will be able to stay in that institution's facilities. Some convicts held in open prisons will be able to serve their sentences in prison on weekends and weeknights and the remaining time at home.
AGGRAVATED DISCIPLINARY PENALTIES: The disciplinary penalties imposed on prisoners who will not be able to benefit from all these opportunities were made more severe. Convicts who shout slogans or argue with law enforcement while being transferred to the courthouse for a hearing or to the hospital for medical purposes will receive a disciplinary penalty as if they had committed a prison offense. “Failure to keep their housing unit clean” was added to reasons for disciplinary penalties given to juvenile convicts.
‘ONLY TALK WITH THAT PERSON’: Convicts and detainees will receive a disciplinary penalty if they use their telephone rights by calling persons other than those already approved, for instance, by forwarding the call to another line. Accordingly, imprisoned persons who call their home phone and talk with a person who is there but not entitled to talk will receive a penalty.
PAROLE REVIEW EVERY SIX MONTHS: Parole reviews will be carried out not only during probation but continuously. The assessments will be decisive in the exercise of rights that require good standing.
FREEDOM OF PROBATION: In addition to the reduction of sentence, the period to be eligible for probation for those who committed a crime before 30 March 2020 will be applied as 3 years instead of 1 year. Accordingly, people who are sentenced to 6 years can be released without any imprisonment as their prison term will be reduced by half, to 3 years. For crimes committed after this date, the probation period will again be 1 year.
EXCEPTIONS TO THE REDUCTION IN EXECUTION OF SENTENCE: Normally under the Law on the Execution of Penalties, persons convicted of non-political crimes spent two-thirds of their sentences in prison. For example, someone sentenced to 12 years of imprisonment was being kept in prison for eight years. Under the amendment introduced with the package, this rate has been halved. Accordingly, someone who receives a 12-year prison sentence will spend six years in prison. Special provisions were introduced for the excluded crimes. Sentences for voluntary manslaughter convictions will not be subject to reduction. Sentences for torture and inhuman or degrading treatment and sexual assault convictions were also excluded. In cases of organized drug crimes, no reduction will be applied to the sentence. The provision in the draft law concerning the reduction of sentences for narcotic and sexual crimes was removed from the package. Repeated crimes will also be subject to the current system. Persons who have committed a repeated crime for the second time will not benefit from parole. Persons convicted of “terrorism” will in no way benefit from the package.
CORONAVIRUS PAROLE FOR ONLY CRIMES AGAINST INDIVIDUALS: Convicts in open prisons, as well as those who have been in closed prisons and are eligible fır transfer to open prisons will be on temporary release on parole until 31 May 2020 due to the coronavirus outbreak. This period can be extended by the Ministry of Justice three times by a maximum of two months and it will be deducted from prison terms.
GOVERNMENT WILL DECIDE WHO READS WHAT IN PRISONS: In the first proposal of the package, there was a provision that set forth that periodicals and other publications without an International Standard Serial Number (ISSN) or an International Standard Book Number (ISBN) would not be allowed in prisons. This provision was revoked by a motion. However, the provision also stipulated that “newspapers not entitled to publish public advertising and announcements by the Press Advertisement Agency” would also not be allowed in prisons. This part of the provision was approved by the General Assembly despite objections from opposition lawmakers. The provision, as amended at the General Assembly, now stipulates that publications that received a permanent penalty of exclusion from running public ads will not be allowed in prisons. The Press Advertisement Agency has thus become the sole authority in this regard. Newspapers such as Evrensel and Birgün, which have faced such bans previously, will not be allowed in prisons if their penalties become permanent.
PRISONERS WHO WILL BE TRANSFERRED TO OPEN PRISONS: Since the prison population is expected to be reduced, convicts who committed serious crimes against individuals and have one year left to be eligible for transfer to an open prison will be transferred to those institutions.
THE SERIOUS CRIME OF THOUGHT: While those who committed the crimes repeatedly mentioned above are being released, those who were never involved in any violent acts but are imprisoned under overly broad provisions of the Turkish Anti-Terror Law, such as “making propaganda for a terrorist organization” and “aiding an organization without being its member” merely for the articles they wrote, the remarks they made during their public speeches or their social media posts, will remain incarcerated.