IHD’s Report on the Prison Visits Made to Arrested MPs and Mayors

15 December  2016

Assessments have been made by our association on such matters as isolation in prison being in the first place, violation of legislative immunity and obstruction of the right of defence due to the detention of 10 MPs along with the Co-Chairs of Peoples’ Democratic Party (HDP)[1] and detention of co-mayors of metropolitan municipalities and the mayors of various cities belonging to the Democratic Regions Party (DBP)[2]. Besides, to show our solidarity with the detained MPs[3] and mayors, we required to pay them visits in prison.  

The delegation consisting of Öztürk Türkdoğan, General President of IHD and Hasan Anlar, Secretary General, paid a series of visits as lawyers on the World Human Rights Day 10 December 2016 and the following day. Before the visits, the Prisons’ Directorates was notified over phone and Silivri Prison has been notified in written.

Visit to Kandıra Number 1 (Woman) F-Type Prison 

In this visit, interviews were carried out with;

1. Figen Yüksekdağ, Co-chair of HDP and HDP Van MP
2. Gülser Yıldırım, HDP Mardin MP
3. Ferhat Encü, HDP Şırnak MP
4. Gültan Kışanak, Co-Mayor of Diyarbakır Metropolitan Municipality
5. Nurhayat Altun, Co-Mayor of Dersim (Tunceli) Municipality
6. Ayla Akat Ata, General President of Free Women’s Congress (KJA) Association and former HDP Batman MP
7. Edibe Şahin, Former Co-Mayor of Municipality of Dersim and Former HDP Dersim MP

In these interviews, with the demand of the concerning Prosecution Office and decision by the Criminal Court of Peace, interviews with Figen Yüksekdağ and Gülser Yıldırım was recorded as video and audio, and a warden was present in the interview. When we started interviewing, to put it in record, we stated that this situation means the violation of the basic rule regarding the privacy of lawyer-client interview and the right of defence has been heavily violated.

It has been noted that the most fundamental violation of rights that each 7 people stated was the “isolation”. According to this, all of the people that we interviewed with stated that they are kept alone in a cell room built for 3 people, they stay alone during the daily ventilation and no one else was let to the ventilation space; thus, they are kept alone for 24 hours and their demand on staying together was rejected by the prison administration. In addition, they stated that even though the radiators of the cell for 3 people are heated well, they are cold and they constantly wear thick clothes such as coat and jackets along the day because there aren’t enough radiators.

It has been understood that in accordance with the 45/1 Numbered Circular of the Ministry of Justice, the rule with regard to the 10 hours of weekly usage of common spaces in prisons isn’t followed properly and only 3 or 4 people are brought together just for 3 or 4 hours. Thus, all 6 women politicians aren’t brought together. It is noted that usage of common social space is possible after the first month. Therefore, it has been understood from the statements of the parliamentarians and the mayors that a certain and absolute isolation was imposed during the first month.

People that we interviewed with stated that they don’t receive the letters and faxes sent to them and some sentences in the faxes they receive is scratched out thus their rights to communicate were violated. In addition to this, registered letters with advice of receipt are given to them after an inspection.

The situation of Ferhat Öncü who is being held in Kandıra Number 1 F-Type (Women) Prison is quite interesting. He is being held alone in a room for 3 people, he goes to the ventilation space alone and he is not able make use of the common social space in any ways. Therefore, he is being held alone as the only man in the same division where women politicians are being held.

Other than these, they stated that general state of their health is good and they don’t have any other complaints.

They stated that there are plenty of cases opened against them regarding the restriction of the right of defence, they are not able to view the case files, conveniently work on the documents in the files with their lawyers, they have to make their defences verbally based on the verbal information they receive and indictments that they are notified, they are obliged to attend the hearings with an audio-video teleconferencing system called SEGBİS (where the detainee attends the hearing from prison via a video and audio system and makes his or her defence), they indeed want to make their defences before the court but because they are detained pending trial and they have been sent to a prison which is irrelevant to the judicial framework of the case, they were deprived from their rights. Furthermore, they stated that almost all of the cases that was filed against them consist of the speeches and press remarks during the candidature process for parliamentariy/municipal elections and during their legislative actions.

In Interviews, especially statements of Gültan Kışanak, Co-Mayor of Diyarbakır Metropolitan Municipality, regarding her and the other co-mayor’s dismissals from office is remarkable. She stated that the appointed trustee is not making the municipal council work and hence all the elected bodies are dysfunctional and the popular will of Diyarbakır is being ignored, this is a serious violation of constitution, and those who are responsible for this will pay the price before the court. She also stated that the situation is the same with other municipalities where trustees were appointed. 

Interviews in Kandıra Number 1 F-Type (Women) Prison ended around 18.30 and the visit we wanted to make in Kandıra Number 2 F-Type Prison could not be realised because the prison officers told us that we could make a visit between 21.00 and 23.00 and this wasn’t a convenient time for us. Therefore, İdris Baluken, HDP Group Deputy Chairman, Fırat Anlı, Co-Mayor of Diyarbakır Metropolitan Municipality and Mehmet Ali Bul, Co-Mayor of Dersim (Tunceli) Municipality, who are being held in Kandıra Number 2 F-Type Prison will be visited later. Also, Tuner Bakırhan, Co-Mayor of Siirt Municipality will be visited later.

Visit to Edirne F-Type Closed Prison

In this visit, interviews with Selahattin Demirtaş, Co-Chair of HDP and İstanbul MP and Abdullah Zeydan, HDP Hakkâri MP, were carried out. 

These interviews were recorded in accordance with the demand of the Public Prosecutor and the decision of Criminal Court of Peace with regard to Selahattin Demirtaş and a warden was present during the interviews. Selahattin Demirtaş stated that there was no decision by the court, but a public prosecutor’s decision during the first 3 days of recording his interviews with his lawyer and this situation by itself was a heavy violation of law. When we started interviewing, we pointed out that this situation means the violation of the basic rule of privacy between lawyer and client, and the right of defence has been heavily violated and we made sure that this situation was put in records.

Selahattin Demirtaş stated that he is being kept alone in a cell, goes to ventilation division alone,  he has been staying alone since the of his detention. In the interview, he stated that he had a heart spasm last week and he was given treatment in the medical room, he has some health problems stemming from the past; therefore, he especially stated that it is unfavourable for his health to stay alone[4]. He noted that the letter which he wrote addressing to European Committee for Prevention of Torture (CPT) was seized by the prison administration and this situation must be notified to the CPT. He stated that he and his colleagues were detained as a consequence of political oppression, while they are in prison pending for trial, President Erdoğan, officials from AKP and the government are giving speeches, which considers them guilty, against the presumption of innocence in the constitution and the jurisdiction is being affected negatively. He pointed out that; thus, the HDP, which has a group in Grand National Assembly of Turkey and defends the peace, is targeted to become ineffective. Nevertheless he stated that HDP voters are not giving up on their party and the vote rate of HDP is around 12-13%. Moreover, he stated that there are 102 investigations against him and the judgement process continues with 77 cases which were reduced by being merged. He also stated that he is being obliged to give statement and make his defence via SEGBİS system almost every day, this situation is against the right of defence, the arrest of the parliamentarians and the co-chairs of the third biggest party, which has a group in the Parliament, is a violation of parliamentary immunity and they are being evidently “discriminated”.

Additionally, he stated that in consequence of their application to the prison administration, he will be able to use the common social space 1 (one) hour a day with Abdullah Zeydan as of 12 December 2016. They expressed that his situation will be applicable for 3 weeks in a month. However, he stated this new situation doesn’t end isolation and their request for staying in the same room with his parliamentary colleague Abdullah Zeydan has not been met. 

In our interview with him, Abdullah Zeydan also stated that he is being kept alone and goes to the ventilation space alone  just like Selahattin Demirtaş.

Other than these, they didn’t state they have any other complaints.

Visit to İstanbul Silivri Number 9 F-Type Closed Prison

In this visit, interviews were carried out with;

1. Ahmet Türk, Co-Mayor of Mardin Metropolitan Municipality, Former Leader of DTK  and Former MP
2. Sebahat Tuncel, Co-Chair of DBP and Former HDP Istanbul MP
3. Bekir Kaya, Co-Mayor of Van Metropolitan Municipality
4. Nursel Aydoğan, HDP Diyarbakır MP
5. Leyla Birlik, HDP Şırnak MP
6. Selma Irmak, HDP Hakkâri MP
7. Nihat Akdoğan, HDP Hakkâri MP

In these interviews, they stated that Ahmet Türk an Bekir Kaya are being held together in a cell for 3 people, others are being kept alone separately, those who stay alone are being kept in cells for one person and they go to the ventilation space alone, they haven’t not been able to use the common social space since the day of their arrest and they have no information regarding the use of this space, they are not given any books from outside, generally mails are not given to them and the ones that are given were delivered late, they still cannot make contact visit with their families and the contact visit permission is once in two months, they are not receiving any response to their petitions to administration, there is a camera on a high spot where the ventilation is and they are quite disturbed by the presence of this camera and this situation is seen as harassment by the women. 

In the interview with Ahmet Türk, he stated that as a 74-years-old cardiac pacemaker carrying person, he still hasn’t gone through a medical examination, he has some problems with his teeth, he must receive treatment for his teeth and go through an examination for his cardiac pacemaker. He stated that he refused to go through the medical examination in reaction to be taken to the medical examination while being handcuffed. Besides, Nihat Akdoğan stated that he is not able to sleep due to constant ringing in his ears.

In interviews in each 3 prisons, we have informed the politicians as lawyers with regard to their legal rights, especially we reminded them the evaluation of the harms of making their defences via SEGBİS system to their right of defence, and the importance of making defence in accordance with the rule of personal presence before the court at the last hearing was reminded.

In the observations resulting from the interviews, we observed that although the MPs and mayors from other parties with the same status are tried without arrest, the fundamental rights of HDP MPs and DBP mayors are violated by “discrimination”,the Law on Criminal Execution , concerning legislations and directives are not implemented, and the isolation, which we regard as contrary to the human dignity, is implemented with arbitrary treatment.

RESULTS

1. It is unconstitutional for these people to be imprisoned pending for trial who are still members of parliament; thus, they still have immunities because they have legislative immunity and trials should definitely continue without arrest. It shouldn’t be forgotten that immunity was abolished in respect to summary of proceedings by the Prosecution Office only until 20 May 2016. Therefore, in case of these summary of proceedings turn into lawsuit, they don’t have any immunity in terms of these lawsuits. Apart from that, immunity continues. Detention of MPs should be regarded as an interference of legislative actions of the legislative body, and the Parliament shouldn’t tolerate this. For this situation, the Constitutional Court has the 2012/1272 numbered application and 04.12.2013 dated Balbay decision[5]. In this decision, The Constitutional Court referred to various decisions by the European Court of Human Rights, especially the 10226/03 application numbered Yumak and Sadak/Turkey decision and it pointed out that detention of the members of parliament is a violation of the Article 67 of the Constitution and the Article 3 of the Protocol 1 to the European Court of Human Rights. In this case, detention pending for trial which is evidently against the European Court of Human Rights and the Constitution should be ended, and the members of parliament should be released immediately.
2. Keeping detained parliamentarians and mayors alone in isolation is incompatible with the human dignity. This situation is against the prohibition of torture, maltreatment and actions incompatible with human dignity. Moreover, a de facto situation against the Execution Regulation has been created. A form of execution, which is imposed on detainees sentenced with aggravated life imprisonment with the 5275 numbered Law, has been imposed on members of parliament and mayors in its strictest form, and de facto punishment was inflicted without even hearings are conducted. The isolation, which is against the current legal statue and incompatible with the human dignity within the scope of torture, should definitely be ended. 
3. Dismissal of co-mayors, who were elected with high public vote rate and their replacement with appointed trustees right after their arrest with the declaration of state of emergency and the 674 numbered following Decree Law, which is completely unconstitutional, are evident judicial oppressions. In Turkey, while tens of mayors from ruling party having investigations and cases against them aren’t allowed to be put on trial, detention of mayors from DBP pending for trial shows that there is no principle of rule of law and the government uses the jurisdiction as a mean of oppression. Mayors should be tried without detention.
4. Detained members of parliament and mayors aren’t accused of any kind of violence act. They are being accused due to the speeches they made, the meetings and demonstrations they attended during the legislative action, party work and mayoral duties. As much as the freedom of expression and organisation, personal security and freedom were violated.  
5. Ahmet Türk and Selahattin Demirtaş, whose health status are grave and under imminent danger, must be released immediately.

Notes:

1. The 6718 numbered and 20.05.2016 dated Law on the amendments to be made in the Constitution of the Republic of Turkey entered into force upon its publication in the 08.06.2016 dated Official Journal. With this law, the Temporary Article 20 was added to the constitution and it is stated that immunities about the public prosecutors’ summary of proceedings which were launched to abolish the parliamentary immunity until 20 May 2016 won’t be implemented. This law was adopted with the votes of AKP, CHP and MHP which have groups in the Parliament. As from 20 May 2016, 104 parliamentarians consisting of 29 from AKP, 55 from CHP, 53 from HDP who have 510 in total and 10 from MHP have summaries of records about them. Selahattin Demirtaş and Figen Yüksekdağ, Co-Chairs of HDP, İdris Baluken and Çağlar Demirel, Parliamentary Group Deputy Chairs, and parliamentarians Selma Irmak, Abdullah Zeydan, Nihat Akdoğan, Leyla Birlik, Ferhat Encü, Besime Gonca, Nursel Aydoğan, and Gülser Yıldırım have been detained pending for trial and the others are pending for trial without detention. As from the date that we released the report, 15 December 2016, HDP MP Dersim Ali Can Önlü was arrested in Ankara.
2. In the mayoral election of 2014, there are 103 municipalities consisting of 3 metropolitan (Diyarbakır, Van and Mardin), 8 provincial (Hakkâri, Şırnak, Batman, Siirt, Bitlis, Dersim(Tunceli),Ağrı and Iğdır) 69 district and 23 town municipalities that currently belong to Democratic Regions Party (DBP) and belonged to Peace and Democracy Party (BDP) in the electoral history. With the 674 numbered decree law following the declaration of state of emergency as of the 14 December 2016, 57 co-mayors of DBP has been dismissed and 47 trustees were appointed. After the dismissing from profession and appointments of trustees, public prosecutors took action and as a result, 62 co-mayors were detained, warrants were issued for 4 of them. All of the co-mayors of metropolitan municipalities and 6 provincial co-mayors are among those who were detained and replaced with appointment of trustees.
3.  Co-Chairs of HDP and other 8 parliamentarians arrested at the same time in 4 November 2016 between 01:00 and 03:00 and they were detained rapidly at the same day.
4. The information that Selahattin Demirtaş had an examination on 14 December 2016 at night time in Edirne Trakya University Hospital one day before we released this report on 15 December 2016, was obtained from press.
5. See the Constitutional Court decision with the 2012/1272 application number published on the 13 December 2013 dated Official Journal

HUMAN RIGHTS ASSOCIATION