Opposition lawmakers say bill proposing early release and amendments on probation should be expanded to cover all inmates for equality and fairness
A bill proposing amendments in the Law on the Execution of Penalties and Security Measures was introduced to the Parliament last week. Jointly drafted by the ruling Justice and Development Party (AKP) and the Nationalist Movement Party (MHP) and proposing certain reductions in sentences for certain convictions, was approved by the Justice Commission on 4 April 2020. The government claims the bill is part of measures to be taken against the spread of Covid-19 in Turkey’s prisons. However, convictions on “terrorism-related” charges and convictions that have not been upheld are excluded in the bill. The bill proposes permanent amendments in the Law on the Execution of Penalties and temporary amendments in the regulations on probation.
The bill is now headed to the General Assembly, which is expected to vote on the draft law on Tuesday. If the bill is enacted as introduced by the AKP and MHP, about 90,000 inmates will be released from prison. However, journalists, politicians, rights defenders and others who are currently in pre-trial detention or serving a sentence on “terrorism-related” charges -- for merely expressing their opinions or doing their jobs -- will remain behind bars.
Lawmakers from opposition Peoples’ Democratic Party (HDP) and Republican People’s Party (CHP), contacted by P24 seeking their comments on the bill, said the proposal should be expanded and modified into a fairer, more egalitarian legislation that will also cover political prisoners, journalists and other show are imprisoned for expressing their opinion.
Sezgin Tanrıkulu: Bill should cover political prisoners
Main opposition CHP’s Sezgin Tanrıkulu, a lawyer by career, said there were currently about 50,000 people in pre-trial detention, a category entirely excluded in the government’s bill. Stressing that every person shall be considered innocent until proven guilty as per Turkey’s Criminal Procedure Code (CMK), Tanrıkulu said that taking into account the current pandemic risk, courts of law and public prosecutors should automatically review pending cases and rule for release of defendants under judicial control measures that could replace detention on remand. “Otherwise, they will be directly responsible for potential deaths from Covid-19 in prison,” Tanrıkulu added.
Tanrıkulu also stressed that people convicted of charges under the Law on the Fight against Terrorism (TMK) to be left out of the bill was not fair: “The law sadly makes no distinction between political and terrorism charges, therefore, since the definiton of ‘terrorism’ in the law is vague and too extensive, people who have never even once held a gun, people who have never engaged in terrorism, people who have never committed any acts of violence are being categorized as people charged with terrorism. What needs to be done in the first place is to revise the definiton of terrorism in the law in line with European Court of Human Rights judgments and recommendations by the Venice Commission and categorize charges that do not fit in that pattern as political charges. However, considering the current circumstances, it is evident that an amendment of this kind will not be introduced in the short term. Therefore, people who have not taken part in the attempted coup, those who have not engaged in terrorist activities, who have not praised terrorist activities, and those who have never engaged in violence should be included in the current bill. Otherwise, the bill is far from addressing the public’s concerns.”
Asserting that all penalties except those imposed for crimes against women and children should be subject to a similar reduction as part of the proposed bill, Tanrıkulu said: “This is particularly important for political crimes, because political crimes are not crimes committed against individuals. Convictions under this category are the easiest to be pardoned by the state and granted a reduction in penalty. So these convictions should in any case be covered by the bill.”
Ömer Faruk Gergerlioğlu: Bill lacks humanistic perspective
Ömer Faruk Gergerlioğlu, a lawmaker from opposition HDP, told P24 that the extent of the government's bill was too narrow despite the fact that all prisoners are equally under threat of infection. “The pandemic will not choose between political or ordinary inmates,” Gergerlioğlu said, adding: “There are inmates who are seriously ill. For instance, there is this one inmate who is a cancer patient and whose chemotherapy sessions were disrupted due to the Covid-19 outbreak because of restrictions introduced by the prison management. I am facing an investigation because I declared recently that an inmate in the Sincan Prison was admitted to the Bilkent City Hospital, however, I personally confirmed this information with the chief physician. This person has been in the intensive care unit since 23 March due to Covid-19. Other prisons started quarantine sections. Inmates who are running slight fever and who do not show serious symptoms are being ignored and they are not sent to hospitals. Only older inmates are referred to hospitals. Given the circumstances, if the bill passes as introduced, leading to the release of only a certain group of inmates, this would be extremely unfair.”
Gergerlioğlu, a pulmonologist by career, said the government was slow to acknowledge the gravity of the pandemic. Noting that pulmonary infections in the elderly were often difficult to cure and could persist for months, Gergerlioğlu asserted that the government should empty prisons just like they emptied state-run student dormitories to utilize as quarantine centers for thousands of pilgrims who returned from Mecca in March. “The government is still acting with political motivation and failing to look at this matter from a humanistic point of view. They still have not fully grasped the gravity of the matter,” Gergerlioğlu added.
Stressing that the legislation on the execution of penalties should be fair, Gergerlioğlu added: “If the current bill is enacted, Osman Kavala, who is 63, Mümtazer Türköne, who is 64, Ahmet Altan, who is currently 70, and many other journalists, writers, political prisoners will remain behind bars. Just like Mehmet Emin Özkan, who is 82, or so many other political prisoners who are above the age of 60. The government says it will release inmates who are mothers, who are sick, or who are older than 60, but political prisoners from these categories are not included in the bill.
“Orders for release and release pending trial should be based on the right to life and convictions served for crimes against women and children should be excluded,” Gergerlioğlu said.
Adding that 18 local politicians from HDP’s Kocaeli provincial branch have been in pre-trial detention for five months without an indictment, Gergerlioğlu added that recently a district mayor who had been jailed pending trial was released from prison only after he was diagnosed with Covid-19. “[Is the government] waiting for every single inmate in prisons to be infected with Covid-19 to release them? Equality and fairness should be the norm,” Gergerlioğlu said.
Utku Çakırözer: Bill should include journalists, politicians who never engaged in acts of violence
CHP deputy Utku Çakırözer said the bill did not only propose amendments to the Law on the Execution of Penalties, but also to TMK and the Turkish Penal Code (TCK).
“It is not just the Law on the Execution of Penalties that is changing. The bill proposes imposing judicial control measures on inmates who are pregnant, seriously ill, or disabled instead of imprisonment. This in fact is an amendment on the detention regime, not just the execution of sentences. If inmates from these categories are in detention on remand, they will be able to file for release under judicial control measures. So we can expand this, because we are currently facing an urgent, serious threat on health. If the government is telling people aged 65 and older to stay at home during the pandemic, then people aged 65 and older who are in prison should also be sent home under judicial control measures,” Çakırözer said.
He said imprisoned journalists and politicians who have never engaged in acts of violence should be included in the bill, which currently excludes those who are charged with or convicted of “terrorism-related” charges. “The bill proposes the release of most inmates who are currently convicted or detained in open prisons. But if you release gang members, murderers, thieves, rapists, drug lords and leave Osman Kavala, Barış Pehlivan, Barış Terkoğlu, Ahmet Altan, Selahattin Demirtaş, Selçuk Kozağaçlı, Hülya Kılınç, Ferhat Çelik, Aydın Keser behind bars, this is neither within the bounds of rule of law, nor is it right or humane,” Çakırözer added.
Stating that the bill should also include the charge of “aiding a terrorist organization without being its member” in articles 220/6 and 220/7 of TCK, Çakırözer said, “Those whose are not considered to be a member of a terrorist organization should not be subject to the regime of the execution of penalties as if they were a terrorist group member.”
Çakırözer added that the “disseminating terrorism propaganda” charge in TMK Article 7 was another problematic item: “According to amendments introduced with the first judicial reform package, news reports or expressions of opinion that are within the bounds of criticism will no longer be considered a crime. If we truly intend for this change to come to life, journalists, politicians and others who are currently on trial on charges under TMK Article 7 for writing news reports, columns or expressing their opinions should be released from detention. Persons who have never engaged in acts of violence but who are being tried on charges under TMK should be tried without detention. This was the spirit of the judicial reform package. If this does not change, Turkey will continue to be a prison for journalists. The bill has to be just and fair.”
Meral Danış Beştaş: Turkey uses terrorism charges to control opposition
HDP deputy Meral Danış Beştaş, a lawyer by career, said there was no legal obstacle to free the detained: “The epidemic can be included in the provisions on pre-trial detention in CMK, which would allow the detained to be released under judicial control measures. Right now in prisons, the lives of not only the convicted, but of tens of thousands who are in pre-trial detention is at stake.
Beştaş said she sees the exclusion of terrorism related charges in the bill as “a direct threat on right to life.” “The definition of terror in Turkey is the most extensive definition in the world. Even though the definition of ‘terrorims’ has changed eight times in TMK Article 7 and yet it has never come close to ECtHR judgements and international standards. Turkey interprets terrorism through its outlook on the opposition. Everyone who is in the opposition is declared to be a terrorist. In an environment where there is no fair prosecution, no impartial and independent justice, everyone, from journalists to doctors and from lawyers to politicians is considered a terrorist. Due to the outbreak, without discrimination everyone should be released.”
Stressing that reductions and other regulations to be introduced in the Law on the Execution of Penalties should be equal, Beştaş said: “Justice in the execution of penalties is not like the relationship between crime and punishment. People are being prosecuted; they are either acquitted or convicted. But turning the execution of penalties into an additional form of punishment is against the law. Right now, a person who is convicted for a political charge has to serve ¾ of their sentence in prison. According to the bill, the sentences of those who are convicted of drug charges, violence against women and the like will be reduced to ⅔ and the rest will be reduced to half. This is a serious inequality and discrimination and it absolutely has to be corrected.”
“Those who are being kept in prisons are citizens of Turkey too, and everyone has an equal right to protection,” Beştaş said, adding: “To only release certain people who they have been wanting to release for a long time while keeping others behind bars is turning the execution of penalties into executions in the true sense of the word. This is the execution of the rule of law and the people. Society has to seriously react to this. This bill should not be enacted in its current condition, it has to change.”
Beştaş continued: “The AKP-MHP block is trying to turn the coronavirus outbreak into an opportunity. The current bill on the execution of penalties is just one example of this. The Istanbul canal project is another major example, just like the dismissal of mayors in HDP-run municipalities. Three of HDP’s representatives in the Muş Municipal Council were recently removed by the government. These are all based in the government’s approach of trying to take advantage of every situation and of seeing everything as ‘a blessing from God’.”
Züleyha Gülüm: The government is acting out of vengeance
HDP deputy Züleyha Gülüm, who is also a lawyer, pointed out that the Covid-19 outbreak will have the biggest impact on prisons. “Prison conditions do not allow people to protect themselves,” Gülüm said. “We are talking about an outbreak where if only one person is infected it will spread across the entire prison.”
Gülüm said those imprisoned over political reasons faced a hostile approach from the government. “Journalists who used their right to inform the public, politicians, and in fact the entire opposition is treated in a vengeful manner. The principle of equality in prosecutions and the execution of penalties was never followed, but not being able to put aside grudges and the desire for vengeance even during an outbreak like this is troublesome. If an amendment is to be introduced in the Law on the Execution of Penalties due to the Covid-19 outbreak, those imprisoned should be released without discriminating between the detained and convicted.”
Gülüm asserted that the bill contained provisions to the disadvantage of people who are currently on trial or convicted of charges in TMK: “There are certain provisions in the bill that could cause some inmates to become subject to heavier restrictions concerning their rights in prison. One of these is a provision that proposes an increase in the maximum and minimum terms for convictions on charges categorized under ‘organized crime.’ Another provision restricts the right to phone call by limiting an inmate’s right to speak with multiple persons during one phone call, saying they can only speak with the person to whom a specific phone number is assigned.
Gülüm asserted that the proposed bill needs to be redrafted and expanded in a fair and just manner.
Reminding that amending the Law on the Execution of Penalties had been a hot topic long before the Covid-19 outbreak, Gülüm added: “The current bill makes one draw the conclusion that the government wanted to take advantage of the urgency caused by the pandemic to initiate some amendments they couldn’t introduce before. Once again opportunism has come into play just like it has in the recent dismissal of municipal council members. The government is continuing to proceed according to their own political agenda as long as the conditions allow it.”