Confronted Emergencies for Political Prisoners in Turkey

Olağanüstü Hallerin Çatışması: Türkiye’deki Siyasi Tutuklu ve Hükümlüler

Göksu IŞIK

Covid-19 virus created a long period of crisis that affected every aspect of our lives. It is hard to be protected from the virus without compromising the classical conception of human rights. For physically free people, many different rights and freedoms can come to the fore, but for the incarcerated people, the main concern seems to be about their right to health and right to life, where this latter is normally considered to be a supreme right in our liberal systems. The release policies excluding political prisoners from the measures taken to prevent spread of virus in prisons seem to be a domain, which puts the validity of our liberal State systems into question, by revealing its deficiencies. Turkey is one of the countries that are criticized the most for excluding political prisoners from release policies. But it is not alone, considering that releasing all prisoners seems impossible for any country. Turkey thus represents only an example of a bigger problem in a wider picture, where the rights considered to be supreme are at stake. This study aims to question the sources of this problem.

Covid-19, Terrorism, Enemy Criminal Law.

Covid-19 virüsü hayatımızın her alanına etki eden uzun bir kriz dönemi yarattı. Virüsten korunmak da çoğunlukla insan haklarının klasik algısına aykırı davranmayı gerektirdi. Fiziksel olarak özgür insanlar için birçok hak ve özgürlük gündeme gelebilecekken özgürlüğünden yoksun kalmış tutuklu veya hükümlüler için asıl endişe sağlık hakkı ve içinde bulunduğumuz liberal sistemler içinde üstün bir hak olarak nitelendirilen yaşam hakkı üzerinden doğdu. Siyasi tutukluların infaz kurumlarında virüsün yayılmasını durdurmak amacıyla alınan tedbirlerden dışlanması, liberal Devlet sisteminin içindeki çelişkileri ortaya çıkararak geçerliliğinin sorgulanmasına sebep oldu. Türkiye, infaz kurumlarında alınan bu tedbirlerin siyasi tutukluları dışlaması noktasında en çok eleştirilen ülkelerden biri oldu. Bu durumda büyük resmin, üstün kabul edilmiş bir hakkın tehlikeye düşmesine ilişkin olduğu ve Türkiye’nin de bu büyük sorunun sadece bir örneği olduğu görülmektedir. Bu çalışma, söz konusu sorunun kaynağını araştırmayı amaçlamaktadır.

Covid-19, Terörizm, Düşman Ceza Hukuku.

INTRODUCTION

Since 2020, we are living in a dystopian world with on-going effects of widespread refugee crisis, increased police violence, continuing terrorist attacks, explosions, nature related disasters like floods or earthquakes¹ and one of the greatest challenges of our recent history; Coronavirus pandemic. The sudden increase of these disastrous events will surely have an impact on near future, as to the conception of dominant liberal values in a democratic society. The need to be protected from Covid-19 virus created a group of intellectuals, who expect restrictive binding measures from their government, in order to oblige every individual to do their share to stop the effects of pandemic.² The governments, that were late to take restrictive measures for our rights or freedoms in the name of fight against pandemic, are criticized as the others are appreciated. The protests against these restrictive security measures didn’t only risk brutal police reaction but also a bigger spread of the virus among protesters. Thus, we can say that the classical conception of exercising human rights in an effective manner is already compromised. Concealing the face was once an obstacle before the concept of living together in a democratic society, as open interpersonal relationship used to be one of the fundamentals of community life,³ it now became a necessity regarding the contagious nature of the virus. Hence, redefinition of human rights in this neoliberal world⁴ will surely gain a new dimension with the revival of world risk society⁵ after the pandemic. The notion of security will be revisited regarding its impact on the restriction of human rights.⁶

Nevertheless, one phenomenon still challenges this new challenge by keeping its place on the top of hierarchy of emergencies; terrorism. The best example of this is the measures taken in prisons. While the people outside have already some difficulties to fight against pandemic, prisoners are a priori in the most fragile situation. Many organizations recommended release of some prisoners in order to prevent the pandemic threat in prisons. Many countries applied these kinds of measures, most of which excluded terrorist cases, meaning, so called political prisoners.⁷

Nearly two million people have died in 2020 because of the pandemic and this number has increased to five million and a half by the end of 2021.⁸ We see that the year that witnessed the highest number of deaths from terrorist attacks is 2014 with nearly 8 000 fatalities, according to the Global Terrorism Database.⁹ This comparison doesn’t surely mean a hierarchy of importance concerning the measures to be taken to fight against these fatal phenomena. On one hand, we hope that the threat of pandemic for human life will be lessened in the upcoming years as the required medical measures are fully implemented all around the world. On the other hand, terrorism is an older and more long-lasting problem than pandemic. However, another long-lasting cause of death is traffic and if we look at the numbers released by World Health Organization concerning the road safety, we see that traffic injuries cause approximately 1.35 million of deaths per year.¹⁰ This number is the combination of continuing nature of terrorist threat with the instant gravity of the number of deaths in the pandemic. But if we say that the importance of terrorism lies on its more permanent nature than pandemic, we should ask ourselves why the fight against traffic accidents doesn’t take as much place as the fight against terrorism in our daily political rhetoric.¹¹ Therefore, while the measures taken against pandemic surely target the protection of human life and the prevention of deaths, the fight against terrorism should mean more than that. The exclusion of terrorist cases from the measures taken for the prevention of deaths from the pandemic shows that, the exceptional nature of terrorism outweighs the exceptional nature of our currently lockdown lives. Thus, the question should be about the reasons why terrorism is the permanent cause of every exceptional situation, even when there are other exceptional circumstances aiming to guarantee the right to life for every individual.

In this study, I aim to search the answer of this question within the example of Turkey, which is one of the countries that are criticized the most, regarding the release policies during pandemic. The particularity of this country also lies on a long tradition of similar measures taken in prisons, which will be my starting point. Then, I will try to examine the responses of States about the Covid-19 threat in prisons. Finally, the search of an answer to the question why terrorism is always the biggest challenge will require a deeper examination on the transformation of our liberal State-centered systems. We will see that the deficiencies of our current liberal system appear in prisons during pandemic at the highest point.

I. TERRORISM AS AN UNDENIABLE EXCEPTION IN TURKISH PRISONS

As Élise Massicard rightly mentions, Turkish prison policy is an internally used political weapon within a specific historical configuration.¹² Since the coup d’état of September 12, 1980, the sudden increases of prison population were always related to fight against politically mobilized groups meaning “anarchists” or “terrorists”.¹³ Nevertheless, the decrease policies, namely conditional releases, suspension of sentences or amnesty and pardon acts, always excluded political prisoners. Back then, the objective used to be about taking measures against prison overcrowding. Now one of the reasons is the prevention of deaths and fight against pandemic, but the exception of terrorist cases remains the same.

The first effect of terrorism on prison overcrowding in Turkey is thus related to crisis situations, as the country has a long history of military interventions.¹⁴ After the 1980 coup, the fight against political polarization of society required arrest and detention of many people who were investigated for terrorism-related offences. Political inmates were one third of the prison population in the following years of the coup.¹⁵ The gradual implementation of a repressive special prison regime for political prisoners in order to break their solidarity was at the heart of Turkish prison policy up until 2000s.¹⁶ After a slight increase of prison population in the beginning of the millennium,¹⁷ the increase rate has reached to 191% until 2015.¹⁸ However, another sudden increase would come with another crisis related to fight against terrorism; the intensification of the conflict in southeast of the country in 2015¹⁹ and of course, the attempted coup of July 15, 2016.²⁰ By the end of two-year state of emergency in 2018, the people tried or convicted of terrorist offences constituted one fifth of total number of prison population.²¹

The second effect of terrorism on prison overcrowding is related to one specific dimension of our transformed criminal justice system; preventive punishment. Being one of the main characteristics of enemy criminal law theory, developed by German academic Günther Jakobs,²² preventive punishment is best represented in the extension of criminal liability to preparation phase of a criminal act. This dimension was already taking place in national criminal systems²³ and some of the counter-terrorism conventions,²⁴ but it is mostly underlined after September 11 attacks, within the implementation of obligations posed by United Nations Security Council in its resolution no 1373(2001).²⁵ Many terrorism related offences, such as financing of terrorism, provocation, recruitment and training for terrorism, terrorist incitement and propaganda, preparation of falsified documents or dangerous substances, membership of a terrorist organization and also incrimination of voyages in the fight against foreign terrorist fighters²⁶ can be considered within this context. This also means the extension of terrorism charges, which has a direct impact on the number of people arrested or detained. In Turkish law, the definition of terrorism is a big problematic criticized for a long time,²⁷ the diversity of terrorist offences in the preparatory phase does nothing but increase the number of people involved in terrorism cases. The propaganda of terrorism, combined with the membership punishments prescribed for aiding and abetting or committing an act on behalf of a terrorist organization,²⁸ might be a concrete example of that, which resulted in arrest of many journalists, academics or deputies.²⁹

The third effect of terrorism on prison overcrowding is the case of detainees. This is directly related to the automatic application of custodial measures in terrorism cases. Turkey is still a good example of that approach, considering numerous judgments of European Court of Human Rights (ECHR) on the automatic detention orders given on the general basis of state of evidence, seriousness of the offence and severity of the sentence.³⁰ Furthermore, the long detention periods also contribute in an undoubted manner to the continuing overcrowding. The longest periods of detention are surely allowed in terrorism-related offences.³¹ This signifies that people tried of terrorist offences stay in prisons longer than the others do.

Putting aside these effects of terrorism, the authorities feel urged to take some measures in order to reduce the number of prisoners from time to time. Even though its efficiency on the reduction of prison overcrowding isn’t scientifically proved,³² amnesty or pardon laws are always considered as a solution. On the other hand, most frequently applied solution is to adopt new laws, which contain modifications about the periods to pass in prison before conditional release, its scope and the promotion of other security measures instead of custodial ones. Surprisingly, the offence that causes overcrowding in a considerable manner is always excluded. This means that we always search the solution elsewhere and we don’t try to focus on the heart of the problem. There are many examples of the exclusion of terrorism cases in Turkish legislative history of these amnesty laws.³³ But the most interesting one is surely about the efforts to reduce overcrowding after attempted coup of July 15, 2016.

In fact, terrorism always constituted an exception regarding the execution phase or criminal proceedings, but a certain protection was accorded with regards to the equality principle. The application of different execution regimes for terrorist offences and “ordinary” offences was first prescribed in Prevention of Terrorism Act no 3713 adopted in 1991. Back then, Turkish Constitutional Court intervened to annul the provision for its non-compliance with the equality principle.³⁴ The reason was that, the execution of sentences shouldn’t depend on the nature of the offence but on the objective of criminal’s reinsertion within the society, according to his/her conduct. The exceptional regime of terrorism was thus supported by the legislative power but submitted to a certain control.

After the attempted coup of 2016, legislative power was discussing to take same kind of action against the sudden increase of prison population in the fight against terrorism. The discussions were carried on for some years³⁵ but the act is adopted right after the entry of Covid-19 on Turkish territory.³⁶ The choice was again to make the application of conditional release or probation easier for ordinary offences,³⁷ despite the fact that terrorism is the main reason of prison overcrowding. Nevertheless, Turkish Constitutional Court decided that this time, the same measures fall within the State’s criminal policy. Considering the gravity, the dangerousness, the effects and the consequences of the excluded offences, the measures are taken in an objective and reasonable manner according to the High Court³⁸ . Even though the deputies alleged that the equality principle is violated regarding the large interpretation of terrorist offences by the authorities, the High Court ruled that these allegations concern the appropriateness of legislative dispositions and their application, which is beyond the scope of its task³⁹ . We see that in the end, the control mechanisms are convinced in the necessity of terrorism exception.

But, can we say that this difference of treatment for terrorist offences and “ordinary” offences is wrong within the context of pandemic? To answer that question, we should turn to the Covid-19 responses of States and their required responsibilities.

II. STATE’S RESPONSIBILITY IN THE PROTECTION OF PRISONERS’ LIFE DURING PANDEMIC

The measures taken during pandemic can bring many rights and their restriction criteria into question.⁴⁰ Without discussing the State’s responsibility for spread of virus in international law,⁴¹ we are searching for the rights that are most at stake during such an event and the obligations of States within the frame of existing human rights protection criteria. In general, we can say that the first right that comes to mind is the right to life as regards to the positive obligations of States to protect life of individuals and to prevent arbitrary deaths.

Since the draft version of International Covenant on Civil and Political Rights, the right to life is mentioned as the “most fundamental of all rights”,⁴² a “supreme right” without any derogation possibility⁴³ and a “peremptory norm”⁴⁴ within the frame of the interdiction of arbitrary deprivation of life. Recognizing that “it would be desirable for State parties to take all possible measures to ... increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics”⁴⁵ and the duty of States to take appropriate measures in order to address the conditions giving rise to direct threats to life such as life-threatening diseases,⁴⁶ Human Rights Committee sets the basic standards of State’s responsibility with general terms. More specifically, the right to health can also come to the fore in relation to the concept of living a life in dignity.⁴⁷ The exercise of this right without discrimination of any kind is also emphasized by the Committee.⁴⁸ In that sense, “refraining from denying or limiting equal access for all persons, including prisoners or detainees” is an obligation explicitly mentioned in a non-binding manner.⁴⁹ Nevertheless, these criteria should be taken into account within the limits of international community’s competence to enforce these obligations and the relativity of right to life, as it is described within the limits of “protection by law” which gives a broad discretion in fulfilling the positive duties of States.⁵⁰

On regional level that interests Turkey, the classical approach of the ECHR poses positive obligations to the States to take appropriate measures in order to protect the lives of individuals within its jurisdiction.⁵¹ Healthcare can also be considered within positive obligations of States regarding the safeguard of right to life.⁵² Even when the State has no control over the risks on the lives of individuals, the ECHR requires adoption of preventive measures in order to reinforce its capacity.⁵³ Nevertheless, an emergency situation created beyond human control increases the margin of appreciation of States.⁵⁴ Within these general criteria, we should also consider that the Court does not determine the deficiency of a regulatory framework in abstracto, for the reason that its task is to find whether or not the applicant is subject to a violation because of the way that this framework is applied or because of its effects.⁵⁵ Considering the detainees more specifically, the Court cannot take the Convention to mean a general obligation to release them on health grounds.⁵⁶ However, according to the particularities of a case, the responsibility of the States for the welfare of the detainees can come to the fore, as we can expect an explanation on the cause of death and the measures taken before such an event.⁵⁷ According to the cases so far examined by the Court, we can say that it prefers to stay on the case of the applicant without declaring this general practice as a violation of substantive limb of right to life, considering the limits of its competency within the possible application of derogation regime.⁵⁸

Aside from these general criteria, human rights protection perspective has focused on the obligations of States to safeguard right to life and right to health of every individual concerning the measures to be taken against Covid-19 pandemic.⁵⁹ Admitting the vulnerability of incarcerated people, who are exposed to risk more than the others;⁶⁰ many organizations, authors, researchers and journalists have recommended release of them as a solution.⁶¹ Because, deprivation of liberty shouldn’t be a derogation clause regarding the prohibition of arbitrary death and State should be held responsible for arbitrary deaths caused by lack of adequate medical care of people under its custody.⁶² Considering that it’s not possible to release all incarcerated people, a certain limitation is surely necessary. Some offered measures to be taken according to the health or age of individuals based on the gravity of the risk posed to their life,⁶³ some offered a limitation of releases based on the gravity of the offence committed or alleged.⁶⁴ Thus, Turkey is not alone to make an exception for the so called political prisoners. We see that many other countries, including France,⁶⁵ have taken the same type of measures to decrease the effects of the pandemic in prisons by excluding political prisoners in general or terrorist cases more specifically.⁶⁶ The main argument is of course based on the gravity of these offences.

The interesting thing is that offence-based limitation criteria is admitted while mentioning the need to prioritize release of human rights defenders, political opponents, activists or journalists in arbitrary detention or conviction.⁶⁷ Especially Turkey has been at the heart of the critics about release policies to stop Covid-19 in prisons.⁶⁸ In this regard, Turkey’s case is a bit more specific than the others, since the terrorist cases constitute the main reason of prison overcrowding as explained above. However, this kind wish is in itself hard to realize, as the countries that exclude political prisoners suffer from the problem of arbitrary extension of terrorist offences or arbitrary application of terrorism’s special procedural rules.⁶⁹ The detention isn’t meant to be arbitrary according to the existing human rights protection standards by which our liberal democratic States are theoretically bounded. Apparently, it is indeed, when we talk about political and/or terrorist cases. Thereupon, admitting gravity of terrorist offences while supporting the release of incarcerated people for minor offences doesn’t help to find a solution. The main problem isn’t offence-based approach in release policies but the undeniable gravity of terrorist offences, which can apparently include human rights defenders, political opponents, activists or journalists. So, we should ask ourselves the reason why human rights protection perspective, which recommends release of people tried or convicted of minor offences, can offer nothing but a superficial wish, running out the heart of the problem. And what holds the scale of proportionality when we say that terrorism outweighs Covid-19 threat, while also admitting its arbitrary consequences in some criminal systems?