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Burak Haylamaz

Human Rights Solidarity | UK

Burak Haylamaz graduated from the University of Maastricht in the Netherlands with a degree in European Law. He also earned his Master’s of Law from University College London. Haylamaz focuses his practice within the field of data protection and intermediary liability, fintech compliance as well as human rights law. His recent works in the field of human rights have been published by several respectful institutions, including Harvard Human Rights Journal and Warsaw University Law Review. The spread and subsequent impact of the virus is beyond walls. However, attention is drawn towards the walls with a specific focus on the reactions of Turkish authorities to the pandemic in prisons. After the announcement of COVID-19 as a global pandemic, the Council of Europe’s Committee for the Prevention of Torture (CPT) immediately produced a set of principles for Member States to follow in their approach to people who are deprived of their liberty.27 As one of the signatory countries of the Council’s European Convention of Human Rights, Turkey is one of the addresses of these principles.

When we analyse the key recommendations, Member States are required;

• Improve the conditions of prisons to the level of international health and safety standards, i.e. all medical and hygienic needs of detainees and convicts;

• Ensure that prisoners have the access to medical care, medical equipment and medical staff at any time; • Ensure that restrictive measures can only be taken if they are necessary and proportionate. (such as video communication in lieu of family visit).

• Eensure that the absolute nature of Article 3 ECHR (prohibition of torture and ill-treatment) is not violated. Hence, no limitation or excuse is acceptable if a taken measure lead to the infringement of the prohibition.

• MSs are required to use alternative means of deprivation, such as early release, probation, house arrest, if applicable.

The rationale behind these principles is clear: any inadequate level of health care and safety measures can rapidly lead to situations falling within the scope of the term “inhuman and degrading treatment. So, the question arises if the Turkish criminal legal system and authorities have achieved to implement these principles enshrined under the ECHR as a response to combat with the pandemic.

In early spring, the news of COVID-19 cases increasing in prisons spread through the relatives of detainees who expressed the severe situation on Twitter. However, the first official statement about the spread of the pandemic in prisons was made on April 14th, 2020. Accordingly, there were 17 confirmed cases and three deaths at the time. Another statement came on May 22nd, 2020 where it was reported that a total of 82 confirmed cases only in Silivri prison and one prisoner had died.28 However, both opposition party representatives and human rights associations have raised an issue that the government has not been transparent about the number of COVID cases in and outside the prisons. The HDP (Peoples’ Democratic Party) produced a report by gathering data from the families and lawyers of prisoners. The report illustrates that the number of cases in prisons is much higher than the official statements and health and safety measures have not been taken properly.

The report underlined several problems:

• Wards and corridors are not cleaned regularly.

• Masks and gloves are not regularly distributed in prisons throughout the country.

• Most of the prisons are suffering from the overcrowded population that accelerates the spread of the virus.

• The food service in canteens were stopped, and the quality of the food sharply declined, which directly weaken the immune systems of prisoners; hence increase their chance of being affected by the virus.

• When a prisoner files a complaint in regard to COVID, instead of accessing medical staff, authorities automatically give them a medicine called “PLAQUENIL”, which is actually a medication used to combat malaria.

• Also, the state’s website enables to check the recent medical situation of the prisoners. However, inmates’ relatives and lawyers reported that the website is misleading as it states that inmates took medical support, which is just a temperature check carried out by guardians.

Without doubt, the report illustrates the fact that Turkey has been practicing a violation under Article 3 ECHR by failing to comply with its positive obligation to prevent inhuman and degrading treatment. On April 14th, 2020, the government enacted a highly contested amnesty law that enabled the release of around 90,000 convicts. It is a contested law because of several reasons:

1. It categorically excluded all political prisoners facing terrorism-related charges from its scope, which has been always interpreted broadly by the authorities. In other words, if the sick prisoner is a political prisoner charged with terrorism-related offenses, then his/her release for medical reasons is next to impossible.

2. Secondly, it only applies to those whose sentences were finalized – Hence, the release does not include those whose trial proceedings are pending.

The amnesty law has been strongly criticized because of its unfair and discriminatory nature, which contradict with Article 2 and 14 of the ECHR. This categorical blanket exclusion prevented the release of about an additional 50,000 prisoners, including journalists, human rights defenders, lawyers, activists and all other political prisoners arrested or convicted with terrorism-related charges . Can Dundar, a journalist in an exile, described the unfairness of the bill in the Washington Post by stating that “a bureaucrat who accepts bribes could be released, while the journalist who reports on the bribery would remain imprisoned.”

On the other hand, the bill is problematic under Article 6 ECHR (fair trial provision) because detainees whose case at pending cannot benefit from the amnesty law and they cannot finalise their proceedings due to the closure of the judiciary. From February to the middle of June, Turkish 29 Courts had been suspended due to the pandemic and no trials were held. Although the courts have started to operate after mid-June, it is restricted due to health and safety reasons. So, there are a limited amount of trials for thousands of delayed proceedings. As a result of this backlog in the judiciary, detainees cannot benefit from the amnesty law and are continuously deprived from their liberty. In other words, detention, which is supposed to be a legal precaution, has turned into a punishment at the moment in Turkey.

Currently some of the detainees have been waiting for 2-3 years in prison for their indictments to be prepared or their trials to begin. Yet even during this pandemic, they were not released. According to the official rhetoric, they are kept imprisoned because “their statements could not be taken.” In other words, even though they could be easily released on parole, they are still kept imprisoned.

In a nutshell, when we analyse the reactions of Turkish authorities to cope with the impact of COVID-19 on prisons, we can detect a couple of potential ECHR infringements:

• Under Article 3 ECHR, Turkish authorities may be found failing to take necessary measures to ensure the right to health of all prisoners.

• The enacted amnesty law immensely contradicts Article 2 in conjunction with Article 14 ECHR due to its discriminatory nature as a result of a blanket exclusion of political prisoners.

• Finally, the enacted amnesty law and the backlog in court proceedings deprive detainees’ right to fair trial protected under Article 6 ECHR.

According to its commitments under international human rights law, Turkey is under a clear obligation to take necessary measures to ensure the right to health of all prisoners without discrimination. Under the current Law on the Execution of Sentences and Security Measures, prisoners are eligible for parole after they have served two thirds of their sentence. The draft law that is expected to be passed in Parliament within days reportedly makes prisoners eligible for parole after they have served half of their sentence. Under the new law, pregnant women and prisoners over 60 with documented health issues will be placed under house arrest. Individuals convicted of a small number of crimes, including on terrorism-related charges, will not be eligible for reduced sentences. The draft law does not apply to those held in pre-trial detention or whose conviction is under appeal.

In Turkey, anti-terrorism legislation is vague and widely abused in trumped up cases against journalists, opposition political activists, lawyers, human rights defenders and others expressing dissenting opinions. Thousands of people are behind bars for simply exercising their rights to freedom of expression and peaceful assembly. Now they are also faced with an unprecedented risk to their health. According to its commitments under international human rights law, Turkey is under a clear obligation to take necessary measures to ensure the right to health of all prisoners without discrimination.

Factual Example of the Consequences of Insufficient Measures: Turkish authorities refused to release Kurdish political prisoner Ms. Sabri Kaya. Mr. Kaya had two open-heart surgeries and over a dozen heart attacks in the past. Most recently, he had a heart attack and cerebral haemorrhage on 25 March 2020. He was hospitalized three times, each time treated under the intensive case, and then sent back to prison. Mr. Kaya was finally released on May 22nd. He died only a couple of hours later.

The three key words for this incident would be testing, releasing and isolating. Testing is the strongest emphasis put forth by the World Health Organization since the beginning of the Pandemic. Releasing refers to those who are there for minor offences or like conversion of fines, they should be released. Lastly isolating; releasing the prisoners who are in for minor offences and those who are there for serious crimes who can be under security measures, they must be isolated so that they are not affected by the virus.

There exists a positive obligation on a state action to protect or enforce a right, at common law and under Articles 2 and 3 of the ECHR, to protect all prisoners from death or serious harm (Keenan v United Kingdom (2001) 33 EHRR 38 at [111]). This duty arises because of the inherent vulnerability of detainees and has even more exacting requirements in relation to those who are “especially vulnerable by reason of their physical or mental condition” (Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72 at [22]), meaning that human rights obligations may be stronger in cases of prisoners who have underlying health conditions.

The Turkish government’s positive proposal to reduce overcrowded prisons is undermined by the blanket exclusion of thousands of inmates convicted on terrorism charges, including those at risk of death from the virus and those who should not be in prison in the first place.