IHD Report and Recommendations for the Elimination of Injustice in Penal Legislation

Our Movement

(Ankara) The IHD (İnsan Hakları Derneği, Human Rights Association) has recently published a report and formulated recommendations for the elimination of injustice in Turkish penal legislation.

IHD has released several reports and statements arguing that there was no judicial structure in Turkey that was compatible with the principle of rule of law, there were grave barriers before the right to a fair trial, there was the threat of the implementation of enemy criminal law by means of specially authorized and mandated courts; rights, notably freedom of expression, and the rights to freedom of assembly, association and demonstration were completely restricted through a very broad definition of terror under the Anti-Terror Code (ATC), no distinctions were made between those who resorted to violence and those who did not, the political power subjected public opposition to judicial pressure instrumentalizing the Anti-Terror Law via specially authorized and mandated public prosecutors’ offices and courts.

However, the Group Deputy Chairperson and MPs of the Nationalist Movement Party (Milliyetçi Hareket Partisi – MHP) that has a group in the Grand National Assembly of Turkey (GNAT) filed a motion to pass a draft-law before the GNAT Speaker’s Office titled “Bill on the Conditional Reduction in Sentence Terms and the Release of Inmates and Convicts Regarding Some Offenses” on 24 September 2018. The draft-law dismisses such problems witnessed in the Turkish justice system, thereby, putting the amnesty controversy on the agenda once again in Turkey. The draft-law only regulates the regime of execution of sentences while it does not cover any special or general amnesty. Therefore, it is not right to discuss this draft-law in terms of “amnesty.” On the other hand, it does not offer any solutions for the problematic areas in penal legislation either. IHD holds it necessary to remind all concerned of the major problematic areas in penal legislation in Turkey before it goes on to put forward its opinions regarding this bill.

When penal legislation in Turkey is at stake, the Turkish Penal Code No. 5237 (TPC) (former TPC No. 765), ATC No. 3713, Code of Criminal Procedure No. 5271 (CCP) and the Law on the Execution of Sentences and Security Measures No. 5275 should be considered all together. Moreover, it also proves to be vital to discuss the steps to be taken to remedy the injustices found in these laws and the various special codes to be mentioned below. This injustice in question gives way to innumerable cases of victimization.

Although not officially announced, there are more than 250 thousand inmates and convicts incarcerated in prisons in Turkey. This figure is way above the current capacities of penitentiary institutions. Furthermore, it is known that there are also tens of thousands of persons who were released on probation to serve their remaining last two years without being remanded in prison. There are also allegations that this figure goes as high as a few hundred thousand.

This crisis of justice witnessed in Turkey can only be remedied through fundamental amendments to the penal legislation. It is also essential that these amendments be made in accordance with the international conventions Turkey is a party to, judgments and case law of the European Court of Human Rights (ECtHR), and universal human rights values. As a human rights body, IHD considers it a task to underline these points that have been ascertained to be problematic in the penal legislation of Turkey and to propose solutions to this end.

MHP’s proposal on the execution of sentences covering conditional reduction also proves to be problematic. It does not offer any solutions for the above-mentioned problematic areas in the penal legislation in Turkey. For instance, TPC Art. 220 is included within the scope of MHP’s proposal, while TPC 314 is excluded. In practice, however, sentences are often imposed not only according to Art. 220 § 6-7 of the TPC but also as per Art. 314 of the TPC at the same time. How can injustice be remedied in such a case?

As far as one can understand MHP’s proposal is one that seeks to render it possible for the leaders and members of various criminal organizations be released through reduction in the execution of their sentences. As is known, criminal organizations resort to violence and force. Their only difference from other organizations acknowledged to be terrorist organizations within the scope of ATC is the fact that they are not acknowledged to be terrorist organizations by the state. To differentiate between criminal organizations violates the principle of equality enshrined in the Constitution with respect to legal method. The proposal is rather problematic in this regard as well.

A statement frequently reiterated by President Erdoğan is significant, he says “only offenses committed against the state can be pardoned.” In this case IHD expects the political power to carefully examine the problematic areas mentioned in this report and to put the following recommendations into effect:

  1. The definition of terror under TPC shall be amended to conform to the international conventions that Turkey is a party to and it shall be reformed in a way to comprise the points set forth in UN Security Council Resolution No. 1566. Thus, the current ATC shall be repealed in its entirety.
  2. Articles 220 and 314 of the TPC shall be reformed pursuant to the opinion of the Venice Commission and ECtHR judgments. The distinction between those who resort to violence and who do not shall be made crystal clear. Those who do not resort to violence shall not be punished.
  3. The barriers before freedoms of expression and association, engaging in political activities, assembly and demonstration in the legislation shall be removed.
  4. Specially authorized and mandated heavy penal courts and prosecutor’s offices shall be closed down. Criminal Courts of Peace shall be reformed in accordance with the related report of the Venice Commission.
  5. Catalogued offenses under Article 100 3 of the CCP and the provision that enables easy arrest if charged with an offense shall be repealed; obstructive procedural regulations before the right to a fair trial, notably before collection of evidence, shall also be repealed. Regulations put into effect through the state of emergency decrees shall be withdrawn.
  6. The discrimination in the Law on the Execution of Sentences shall be ruled out, the execution terms of all inmates shall be equalized.
  7. Discriminations against enjoying probation shall be removed.
  8. Legal and administrative barriers before the release of sick inmates in prisons shall be eliminated.
  9. The execution of aggravated life sentences until the inmates are dead shall be renounced; conditional release observing the age of the inmate shall certainly be ascertained as per ECtHR judgments on the issue.

IHD Legal Commission

To read the full report in English, click: IHD Report and Recommendations for the Elimination of Injustices in Penal Legislation

To read the full report in Turkish, click: Ceza Mevzuatindaki Adaletsizlikleri Gidermeye Donuk IHD Onerileri Raporu

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