Protect the Right to Life, Release Sick Prisoners!
29 April 2022
According to data provided by the Directorate General of Prisons and Detention Houses, there are 314,502 inmates in prisons in Turkey as of 31 March 2022 and this figure constantly goes up. Replacement of a policy that prioritizes human life and is respectful of individuals’ inalienable rights by one that is pro-security leads to such hike in the number of prisoners. Building maximum security and S-type prisons in recent years as well as deteriorating isolation conditions further challenge prisoners’ lives and is detrimental to both their physical and mental well-being. The leading rights violation faced by prisoners is the obstacles before prisoners’ right to access health care and the problem of sick prisoners. Health problems faced by prisoners have further deepened with the spread of the COVID-19 pandemic since March 2020.
According to İHD’s data, at least 46 prisoners have lost their lives due to their health conditions since the beginning of 2021. Of these 15 were COVID-19-related while 3 prisoners in critical condition lost their lives shortly after they were released. It should be remembered that most deaths in prisons are preventable. Yet, sick prisoners struggle hard for their lives when many problems like the material conditions of prisons, malnutrition, delayed transfers to infirmaries and hospitals, discriminatory practices against prisoners, transfers with single-person vehicles and physical examination in handcuffs, problems in medicine acquisition, failure to delay critically sick prisoners’ enforcement of sentences amass.
According to data collected by İHD’s Central Prisons Committee, there are 1,517 sick prisoners, including 651 in critical condition, in prisons in Turkey as of April 2022. İHD’s sick prisoners list is drafted by collecting data from applications lodged before our association, lawyers’ visits to prisons, letters sent by prisoners to us and the relaying of information at prisoner-family visitations. It should be noted that data collection has been quite challenging while we were only able to reach a limited number of sick prisoners because of continuous transfers and involuntary transfers, obstacles before prisoners’ communication, high number of prisons and prisoners and challenges in access to our institutions.
İHD demands that prisoners in critical condition be released having their enforcement of sentences deferred until they recuperate. The Forensic Medicine Institute lost its credibility in the eyes of the public because of its “fit for prison” reports. Despite medical reports drawn up by full-fledged general and university hospitals for prisoners, the institute causes violations of the right to life by drafting reports alleging the exact opposite of these former reports.
Article 16 of the Enforcement Law entitled “Deferral of imprisonment sentences due to sickness” was amended by Law No. 6411 on 24 January 2013 introducing the following provision: “enforcement of sentences for prisoners, who cannot live on their own under prison conditions due to a critical sickness or disability and evaluated to pose no threat to public safety, can be deferred until they recuperate as per the procedure set forth in the third paragraph.” But even this provision is not implemented truly. The Forensic Medicine Institute draws up reports going against the criterion of “to be able to live on one’s own” enshrined in the law. The cases of Mehmet Emin Özkan and Aysel Tuğluk can be offered as examples herein. İHD believes that this provision in the law should be repealed and all critically sick prisoners should be released allowing them to recuperate.
Problems in the penal system and Law No. 5275 on the Enforcement of Sentences and Security Measures that went into force in 2005 highlight security instead of one that prioritizes human rights while forming a whole that disregards individual rights and freedoms. Amendments introduced to the Enforcement Law through Law No. 7242, which went into force on 15 April 2020 allegedly in response to the COVID-19 pandemic, brought about a horrible discrimination by exempting prisoners incarcerated under the Anti-Terrorism Code (ATC), thus, the problems of sick prisoners held under the ATC became chronic. Moreover, the presidential “Regulation on the Management of Penitentiary Institutions and the Enforcement of Sentences and Security Measures” published in the Official Gazette of 29 March 2020 maintained the aspects of the current Enforcement Law that were against prisoners’ rights and it even further aggravated enforcement.
International legislation encumbers states with positive obligations regarding the right to life of persons deprived of liberty by states themselves. States are obligated to provide persons deprived of their liberty equal access to health care on par with free individuals and Article 90 of the Constitution guarantees the implementation of such international conventions and covenants. The Istanbul Protocol, an official United Nations document that is adopted by states parties, sets forth that each patient even in the position of an inmate has the right to choose their own doctor and to ask for medical reports drawn up by independent experts. University hospitals, training and research hospitals, general hospitals can carry out objective processes about prisoners’ health conditions and draw up medical reports.
- All prisoners in critical condition should immediately be released pursuant to medical reports drawn up by any full-fledged general hospital, their treatment should be sustained with their families, and their medical insurance should be provided by the state;
- The Forensic Medicine Institute should no longer be the sole and last authority for granting reports for the deferral of enforcement of sentences due to health problems, while general hospitals’ and university hospitals’ reports should be accepted as well;
- The discretionary power of public prosecutors should be repealed in decisions to defer enforcement of sentences due to health reasons, enforcement of sentences should be deferred based on medical reports drawn up by hospitals, the “danger to public safety” criterion before the deferral of enforcement of sentences for sick prisoners should be removed from the law;
- As per the European Court of Human Rights (ECtHR) judgment in the case of Gurban v. Turkey group, prisoners’ legal status summaries must include an appropriate date on which they can be released, taking into account their age and state of health;
- The points made by the ECtHR in its judgment in the case of Gülay Çetin v. Turkey should be complied with, and it should be remembered that failure to release sick prisoners is a violation of Article 3 of the European Convention on Human Rights (ECHR);
- It should also be noted that the ECtHR convicted Turkey in the case of Gülay Çetin v. Turkey, which closely concerns the situation of sick prisoners, for violating ECHR Article 3 that prohibits torture and ECHR Article 14 that prohibits discrimination holding that the state was involved in practices that led to prisoners’ diseases to progress;
- The presidential circular letter regulating the power of pardoning prisoners for health reasons should be amended, and the president should use their power regarding prisoners in critical condition without discrimination.
- Turkey’s current enforcement regime should be amended so as to comply with the UN Mandela Rules, and discrimination in the enforcement of sentences brought about by the ATC should be eliminated.
HUMAN RIGHTS ASSOCIATION
CENTRAL PRISONS COMMITTEE