Special Report: On the Bill to Amend the Enforcement Law



2 April 2020

İHD, hereby, presents its assessment and recommendations on the “Bill to Amend the Law on the Enforcement of Sentences and Security Measures and Some Other Laws” tabled on 31 March 2020 before the Grand National Assembly of Turkey (GNAT) Speaker’s Office by deputy group chairpersons and a group of deputies from the AKP and MHP.

It should firstly be noted that there are certain urgent measures that should be taken in prisons because of the COVID-19 pandemic. Necessary hygiene and healthcare services should be provided for prisoners, both convicted and non-convicted, due to this deadly pandemic until their release can be secured.[1]

Other than the release of prisoners, one notable measure to be taken is about non-convicted prisoners whose cases are still pending before courts with no finalized sentences delivered for them. The bill merely puts forth provisions about convicted prisoners disregarding non-convicted inmates.

To impede the adverse effects of the COVID-19 pandemic on prisoners, detention orders against them should be reviewed. Detention reviews should thus be conducted ex officio under Article 100 and subsequent articles in the Code of Criminal Procedure (CCP) and releases should be paved for depending on the fact that “detention is an exception,” particularly for prisoners victimized by unjust detention orders at unfair trials.

Those with medical conditions that pose serious health risks, specifically due to the current pandemic, should immediately be released without having to resort to any legal regulation by courts’ using their judicial discretion.

To put it concretely, Article 108 § 3 of the CCP should be revised as follows:

(3) The judge or court shall review ex officio the status of the detained accused on each trial day or in cases of natural disaster or epidemic or between the trial days when necessary or within the time limits foreseen in the first subparagraph whether it is necessary that the detention period to continue.

The proposed bill sets forth that there would be no changes in the conditional release ratio of ¾ for terrorism offenses and organized offenses, yet, the ¾ conditional release ratio for repeat offenders and the related sexual offenses and drug trafficking offenses would be reduced to 2/3.

The legislators should, first of all, clearly reveal what they imply by “terrorism offenses.” The Turkish Penal Code (TPC) does not have any type of offense entitled “terrorism offenses.” Article 3 of the Anti-Terror Code (ATC) No. 3713 lists individual terrorism offenses, while Article 4 of the ATC individually lists offenses committed for the purpose of terrorism. Moreover it is not clear whether the offenses listed under Articles 6 and 7 of the ATC are terrorism offenses or not.

Within the scope of the recent practice in courts, on the other hand, an obscurity on this issue based on no legal criterion whatsoever prevails. Under such circumstances İHD would like to persistently reiterate the need to repeal the ATC in its entirety and an assessment on this is a necessity.

Articles 5 and 17 of the ATC are related to the enforcement of sentences which makes way for a separate evaluation of these articles.

[1] See 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/>

Full report in English: SR20200402_İHD Enforcement Law_Special Report