"…the de facto isolation system currently in operation is not acceptable and must be ended quickly."
(Letter from the President of the CPT to Mr H. Kemal Gür, Deputy Director General for the Council of Europe and Human Rights, Ministry of Foreign Affairs, Ankara, Turkey on 29 January 2001, para 6)
The democratic public opinion of Turkey is demanding the removal or amendment of the provision concerning the prevention of communication and contacts among prisoners and convicts in specially built single and three-room cells prisons under Article 16 of the Anti Terror Law. Ministry of Justice has also agreed on this approach.
Following 19 December 2000 prison operation, F Type prisons were put into service. As a result, prisoners put into F Type prisons have been subject to an isolation system which is in contradiction with human rights law and, among others, with the Recommendation No. R (87) 3 of the Committee of Ministers to Member States on the European Prisons Rules adopted on 12 February 1987.
In the section entitled "main principles" of the Standard Rules, the first rule is as follows: "The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules."
The Rule entitled "Accommodation" under Article 14 reads as follows: "Prisoners shall normally be lodged during the night in individual cells except in cases where it is considered that there are advantages in sharing accommodation with other prisoners." The "cell" herein is not interpreted like it is understood negatively in Turkish. It is interpreted as a private place designed to spend the night and as a right for the prisoner rather than a punitive measure as in Turkish system. The respect for human dignity requires protection of privacy and private life.
However, in "F type" prisons of Edirne, Kocaeli, Sincan and Tekirdağ, put into service after the 19 December Operation, prisoners have been kept in cells day and night. Cells are not only for nightly accommodation but used as units to spend all their lives. This is a de facto isolation system as it is fairly criticised by the European Committee for the Prevention of Torture. The Committee, in its letter of 29 January 2001, says the following regarding the practice in Edirne, Kocaeli and Sincan prisons: "However, the de facto isolation system currently in operation is not acceptable and must be ended quickly. "
Standard Rules describes rules under the heading "Discipline and Confinement". Under Rule 37, it reads as follows: "Collective punishment, corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishment shall be completely prohibited as punishments for disciplinary offences."
Isolation is described as a disciplinary confinement and implementation rules are defined under Rule 38: "Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer after examination certifies in writing that the prisoner is fit to sustain it."
In the letter of the European Committee for the Prevention of Torture, detention conditions in F type prisons are defined as "de facto isolation system" and the immediate removal of it is asked. Because, prisoners are kept in cells not out of a disciplinary confinement with a medical report and for a certain time, they are kept therein as a general practice, in another words, systematically as an administrative practice. This means a continuous and systematic breach of law against torture.
It is imperative and necessary to end the isolation within the mentioned context. We are convinced that there are means to end isolation. The first is the proposal for the amendment of Article 16 of the Anti-Terror Law. However, the realisation of this proposal needs time in order to be enacted by the parliament. It does not seem that this could be fulfilled soon, considering also the urgency of the "death fast" action continued by political prisoners.
The second way is related to the interpretation of the implementation of Article 16. The Ministry of Justice, the administration hereafter, should apply a narrow interpretation: Article 16 is an article restricting rights and freedoms. In this context, there is a need to think about the limits of limitations and to consider the relationship between the objective of the Article and the rights and freedoms of prisoners. According to the narrow interpretation proposed here, the objective of the Article is to prevent the maintenance of the political organisation of prisoners, thereby banning communication and contact among prisoners for this purpose. Therefore, the administration may declare that the restriction stipulated by the Article is limited to the mentioned objective, and not a general one. In this case, the Ministry may conclude, remanded and convicted prisoners may come together for humanitarian and social purposes including cultural and sports activities. This would allow the Ministry to by-pass the obstacle Article 16 supposedly brings against ending the isolation, thereby respecting the human rights of prisoners. This would be a positive and constructive response to criticism raised by Turkish democratic public opinion as well as the Council of Europe and the European Union against the isolation policies launched since 19 December 2000. It is obvious that such an improvement would get positive reaction from prisoners too.
Article 16 should be amended in near future. In fact, rights responsibilities should have been guaranteed by law so that changes in the administration would not result in so radical changes in practice. Furthermore, the Turkish government covered the issue of prisons in the National Program for Accession to the EU. In this Program, the government states under point 2.1.14 that "Prisons are improved in line with recommendations made by the Council of Europe and European Committee for the Prevention of Torture, as well as with the UN Minimum Standards and the Council of Europe Rules. In this respect, allowing those convicted under the Anti-Terror Law to make open visits and to participate in working facilities will be considered by amending the said law in short-term." Short-term means the period until the end of this year. However, this statement cannot be a pretext for continuing isolation until such amendment is made. Continuing "de facto isolation" means continuing torture, and those remanded and convicted prisoners are already torture survivors. The interpretation we propose is a means to end torture as soon as possible.
Hüsnü Öndül
President