Amicus Curiae Submission on Law No. 7242
before the Constitutional Court
The Human Rights Association has submitted an amicus curiae brief incorporating its legal opinion on two separate lawsuits (Merits No. 2020/44 E & 2020/53 E) lodged before the Constitutional Court by CHP’s (Republican People’s Party) Group Deputy Chairpersons signed by 135 deputies who had applied for the annulment of Law No. 7242 regarding both its merits and form that introduced amendments to the Law on the Enforcement of Sentences and Security Measures and some other laws.
The government took various measures in Turkey in its response to the COVID-19 pandemic. The Ministry of Justice, too, issued a statement on the measures taken in prisons. İHD together with other human rights and legal organizations had also issued a statement on the measures that should have been taken in prisons within the context of the current pandemic and communicated related requests to the Ministry of Justice. Further, İHD has long been working on and closely monitoring the conditions of critically sick prisoners. İHD has also issued its views on critically sick prisoners and the COVID-19 pandemic on 31 March 2020.
On 31 March 2020, deputy group chairpersons and a group of deputies from AKP and MHP tabled the “Bill to Amend the Law on the Enforcement of Sentences and Security Measures and Some Other Laws” before the Grand National Assembly of Turkey (GNAT) Speaker’s Office. İHD, then, drafted a comprehensive report on the bill and communicated it to the GNAT’s Justice Commission, its members, deputy chairpersons of political parties and shared it with the public as well.
Although İHD was not invited to the deliberations at the GNAT’s Justice Commission, its views were communicated to the commission but when one reviews the law based on the bill it is clearly seen that these views were in no way taken into consideration and a thoroughly unconstitutional regulation was adopted. This regulation was put in place through Law No. 7242 adopted on 14 April 2020.
Law No. 7242 went into effect on 15 April 2020 having been published in the Official Gazette. Yet there were unconstitutional provisions in the law as per procedure and merits. İHD communicated its views to CHP underlining that an application should be lodged before the Constitutional Court.
135 deputies from CHP, including the party’s GNAT group deputy chairpersons Engin Altay, Özgür Özel, Engin Özkoç, lodged an application before the Constitutional Court on 22 April 2020 on the grounds that the provisional Article 6 of Law No. 7242 was pro forma unconstitutional as it qualified as special amnesty.
Subsequently 135 deputies from CHP, including the party’s GNAT group deputy chairpersons Engin Altay, Özgür Özel, Engin Özkoç, lodged another application before the Constitutional Court on 11 June 2020 for the annulment of Law No. 7242 on its merits. The application argued that the law in its entirety and 15 miscellaneous articles in various other laws amended through the law in question were unconstitutional because Law No. 7242 qualified as special amnesty.
İHD would like to state that it was imperative to submit this brief in order to ensure that various shortcomings be remedied in the said annulment cases pertaining to Law No. 7242 both in form and merits before the Constitutional Court, to contribute to legal grounds, and to remind all the concerned that the court, not being affixed by justification, could indeed pass a verdict based on grounds it saw fit should it ascertain unconstitutionality within the scope of annulment cases brought before it.
Within the scope of the annulment case, İHD would also like to underline that not only does provisional Article 6 but also the provisional Article 9 § 6 of Law No. 7242 qualifies as special amnesty as well, such a law adopted in this way is at the same time a violation of the GNAT’s internal regulations by the deed, the court can also treat the articles İHD referred to in its legal opinion as subjects for annulment as per the rule “not being affixed by justification” since annulment is requested for the law in its entirety.
Article 43 of Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court clearly prescribes that the court is not affixed by justification within the scope of annulment cases brought before it. CHP deputies argued that Law No. 7242 should be annulled in its entirety on the grounds of internal regulation violation by the deed under Articles 87 and 88 of the Constitution. According to the rule prescribing the requirement to be bound by request, the deputies requested that Law No. 7242 be annulled in its entirety. İHD would like to put forth that the Constitutional Court can annul not only internal regulation violations by the deed but also those articles that are overtly unconstitutional under various articles of the Constitution since the Constitutional Court is not affixed by justification. If the Constitutional Court does not rule for an internal regulation violation, it can review all the articles of the said law separately as per constitutional concordance and can annul the unconstitutional articles on this ground. The Constitutional Court, in this way, observes both rules to be bound by request and not being affixed by justification.
İHD stated that upon an annulment judgment under the last paragraph of Article 43 of Law No. 6216, related articles for which there will be no capacity for implementation or those that will become directly unconstitutional should also be annulled.
Law No. 7242 incorporates 69 articles including those on execution and force. İHD’s review revealed that 28 articles were against rights guaranteed by the Constitution and international conventions. These include nine articles that extend the mandate and jurisdiction of enforcement judgeships while curbing the jurisdiction of courts, one article introducing a change to the detriment of persons within the scope of the Code of Criminal Procedure (CCP), two articles extending the jurisdiction of Criminal Peace Judgeships, one article that prescribes the rate of conditional release by increasing the rate within the scope of Anti-Terror Code No. 3713 (ATC), and 15 articles that are against equality, the principle of proportionality, principle of legal interest to be protected and numerous other fundamental principles. Moreover, it is İHD’s opinion that the regulations put forth by Law No. 7242 in provisional Articles 6 and 9 § 6 of Law No. 5275 qualify as special amnesty.
İHD’s co-chairpersons in their legal opinion requested the Constitutional Court to take the following into account in its review:
- “Legal interest to be protected” prescribed in the enforcement law and the Turkish Penal Code,
- Prisoners’ rights set forth in international documents,
- Compliance with prohibition of discrimination by heeding calls by international bodies within the context of the COVID-19 pandemic,
- The unlawfulness of the omnibus manner in which offense types that were named and classified under various titles were regulated, the aggravation of enforcement conditions for offenses under the ATC is against the principles of equality before law and equal protection of law,
- Introduction of regulations disregarding the degree of crime and punishment principle by using template statements so as to create new offense types,
- Cases of unlawfulness brought about by such regulations introduced regardless of necessity in a democratic society and legitimate aim,
- Its own previous judgments on legal regulations providing for special amnesty,
- Unconstitutionality of transition to a tripartite system in enforcement law through Law No. 7242,
- Transfer of courts’ jurisdiction to enforcement judgeships,
- Extension of Criminal Peace Judgeships’ jurisdiction.
Human Rights Association
 İHD et al. “The COVID-19 Pandemic and Urgent Measures in Prisons.” 20 March 2020. <https://ihd.org.tr/en/joint-statement-covid-19-pandemic-and-urgent-measures-in-prisons/>
 İHD. “Sick Prisoners and the COVID-19 Pandemic.” 31 March 2020. <https://ihd.org.tr/en/ihd-statement-on-the-covid-19-pandemic-and-sick-prisoners/>
 İHD. “İHD’s Assessment and Recommendations on the Amendments to the Law on the Enforcement of Sentences.” 2 April 2020. <https://ihd.org.tr/en/special-report-on-the-bill-to-amend-the-enforcement-law/>
 İHD. “İHD’s Primary Concerns on the Amendment to the Law on the Enforcement of Sentences.” 22 April 2020. <https://ihd.org.tr/en/ihds-primary-concerns-on-the-amendment-to-the-law-on-the-enforcement-of-sentences/>
 The Constitutional Court. Law No. 6216. <http://www.constitutionalcourt.gov.tr/inlinepages/legislation/LawOnConstitutionalCourt.html>