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The new execution regulation in Turkey: Committing a crime is permissible for those who say “Long live our leader.”

Dr. Selami Er*

The process that began in 2020 with Turkey’s ‘Nationalist Movement Party’ leader Devlet Bahçeli’s visit to Alaattin Çakıcı in prison led to amendments in Law No. 7242 on the Execution of Penalties and Security Measures, and an indirect/veiled amnesty arrangement was made under the pretext of reducing sentences due to the Covid-19 pandemic. Approximately 100,000 convicts benefited from this.

With the amendment, the conditional release rate was reduced from 2/3 to 1/2 as a rule, and those with a 3/4 sentence were reduced to 2/3. However, no reductions were made for crimes such as intentional homicide, aggravated assault resulting in death, torture and cruelty, sexual assault, crimes against private life and the secret realm of life, crimes against state secrets, espionage, and for drug production and trafficking, crimes against sexual integrity, and terrorism. In addition, the scope of special execution methods was expanded, and the existing practice of executing sentences on weekends, at night, or at home was extended from six months to up to three years.

The amendment, which has an amnesty-like quality, involves extending the one-year probationary period for offenses committed until March 30, 2020 (excluding the aforementioned crimes) to three years and allowing convicts in open prison facilities and those subject to probationary measures to be considered on leave due to the Covid-19 pandemic.

While common criminals were released with this arrangement, those who were politically prosecuted, like the KHK (State of Emergency Decree) holders whose main reason for their cases was opposition to the government, those convicted in trials related to the Gülen movement, defendants in cases like Gezi, and Kurdish politicians like Demirtaş did not benefit from the sentence reduction.

The Constitutional Court had previously annulled some provisions of amnesty arrangements made under different names in 1991 and 2001 on the grounds that separate application of conditional release among convicts in equal and similar situations did not comply with the principle of “equality before the law” or that the arrangement causing unjust results was contrary to the rule of law. The Court also considered the 2001 arrangement to be an amnesty and annulled it because it did not pass as a qualified majority law as required by Article 87 of the Constitution.

The 2020 execution amendment was taken to the Constitutional Court by the CHP, but the Court, with a majority of votes (seven against nine), rejected the application on the grounds that the amendment was not an amnesty due to its formal aspects. Seven dissenting members of the Court, including the Court President, argued that the amendment had the nature of a special amnesty law and that it should be annulled because it did not pass as a qualified majority law.

In their dissenting opinions, it was emphasized that the amendment turned sentences of persons sentenced to six years (in some cases eight years) of imprisonment into already served sentences, thus transforming the punishment into a much lighter one, and that it had the nature of a special amnesty and was contrary to the Constitution. The application for annulment on the merits was unanimously rejected by the Court.

Recently, government circles had been discussing a comprehensive amnesty arrangement that would coincide with the centenary of the Republic and would include political prisoners this time. Unfortunately, the new regulation was once again a disappointment for political prisoners, such as KHK holders and those tried in cases related to the Gülen community, Gezi Trial defendants, and Kurdish politicians. The new regulation included many types of crimes that the previous one had excluded from sentence reductions/amnesty, except for terrorism-related offenses. The regulation, approved by the Parliament on July 14 and signed into law by the President on July 15, came into effect. In an execution regulation, which was symbolically chosen to come into effect on July 15, a date that coincides with the centenary of the Republic, from an administration that declared everyone who opposed it as terrorists, it would not have been realistic to expect a provision in favor of these individuals.

According to the new regulation, as of July 31, 2023, convicts in penal institutions with a total prison sentence of less than 10 years can move to open penal institutions with a condition of staying for one month, while those with sentences exceeding 10 years can move to open penal institutions with a condition of staying for three months. Those with three years or less remaining to their sentences can benefit from this law, meaning they can transfer to open prisons. Those who transfer to open prisons can, after staying there for three months, benefit from probation provisions three years earlier. While the previous arrangement excluded crimes such as murder, drug offenses, and sexual crimes, this time, reductions in sentences/amnesty are also applied to these crimes. Also, prisoners who were granted leave due to Covid-19 will continue to receive this benefit.

The condition of at least one month in closed and at least three months in open penal institutions, which is included in the regulation, seems to have been added to address criticisms that some members of the Constitutional Court raised in the previous regulation, arguing that in some cases, sentences were considered served without ever going to prison, so there was an amnesty arrangement here.

However, crimes related to terrorism are excluded from the regulation. In other words, after saying “long live the Sultan” figuratively, it is free to commit any kind of crime, as long as it is not against the Sultan/president or the regime.

According to the 2020 Criminal Statistics of the Council of Europe, Turkey has the highest number of detainees and convicts in European prisons per capita. Russia is second. We have a government that boasts of its new and modern prison constructions. However, these prisons are filling up quickly, and the number of detainees/convicts in prisons has been constantly increasing throughout the AKP government. Their solution is to forgive ordinary criminals under the guise of execution regulation.

In addition, in Turkey, the number of those imprisoned on charges of terrorism exceeds the total number in European countries. As the European Court of Human Rights has stated in many decisions, being charged with a terrorist organization crime and being convicted has become unpredictable and has lost the requirement of legality in Turkey. It is common knowledge that over ninety percent of those accused of terrorism-related offenses have not been involved in any violent/terrorist activities. The evidence presented in terrorism-related trials for KHK (Decree-Law) holders includes legitimate and legal activities such as opening an account at Bank Asya, being a member of a legal association, using Bylock, or participating in a religious discussion. Moreover, the evidence against politicians accused of being members of a terrorist organization consists of speeches and phone conversations that do not contain any calls for violence. The evidence used against Kavala is his role in the Gezi Park protests, which involved the exercise of the fundamental right to assembly and demonstration.

If this continues, the most significant crimes in the country will be making pastry at a fair, opening an account at Bank Asya, or criticizing the regime. Can you imagine that even crimes like homicide or drug trafficking, which are punishable by death in many countries, are forgiven under the pretext of an execution regulation, but being associated with a group/movement utilized to the fullest extent by those in power is not forgiven? What I have written here has no place in a state governed by the rule of law; it is even too much to be sentences from a comedy script. One does not know what to say.

In essence, amnesty laws are generally enacted to make a fresh start and restore social peace after a problematic period when the law did not function normally, following wars, coups, regime changes, or comprehensive reforms. Amnesty laws enacted for other purposes are generally not well-received in theory. Amnesty regulations contradict the purposes of criminal laws, such as preventing crime, deterrence, and the rehabilitation of offenders, and they hurt the public conscience. After both the 2001 and 2020 execution regulations/amnesties, many of those released committed crimes again. There have also been reports of an increase in violent incidents after the most recent amnesty.

Moreover, while real criminals have their sentences reduced, those accused of political crimes, including KHK (Decree-Law) holders and those tried in the Gülen movement cases, are disappointed with the general amnesty issue once again. It appears that the government’s aim is not to avoid exceeding the limits when punishing dissidents, but rather to empty prisons to make more room for political prisoners.

An increasingly mafia-like government, through its regulations, provides freedom and flexibility to mafia bosses and members, whether overtly or covertly affiliated, granting them the freedom to act while attempting to neutralize potential charges against them, effectively exonerating them. The understanding of law in Turkey, resembling the medieval era, gives the impression of a criminal organization both nationally and internationally. One should not expect any other behavior from such a government. October 29th is just around the corner. Regardless of the motivation, we hope the government takes a step that changes this paradigm and surprises all of us.

[1] For more information, see: https://kronos36.news/tr/aym-eski-raportoru-yazdi-infaz-indirimi-yasasi-iptal-edilir-mi/

*Dr. Selami Er holds the positions of former Rapporteur Judge at the Turkish Constitutional Court and Auditor at the TCA, with expertise in Human Rights, Constitutional Law, the Rule of Law, and the Economy.

This article was first originally published in Turkish in Kronos36.news and translated into English by Politurco.com

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