“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” — Nelson Mandela.
The officers of the Spanish Inquisition needed to extract a confession from a suspect because they believed that it was their duty to bring the accused back to the faith. It would not be wrong to assume, however, that some might have needed it for various other reasons such as furthering their careers or fear of losing their position within the church.
Immediately after the coup attempt of 15th of July 2016, the Turkish government started a mass arrest campaign against lawyers in Turkey. So far more than 1600 lawyers have been arrested while more than 600 have been remanded to pretrial detention.
They had to endure terrible conditions in police cells, insults, ill-treatment and even torture. Although they were being accused of membership in an “armed terrorist organization”, the evidence against them in almost all of the cases included their client lists, charities they donated to or newspapers they read.
With no support from the Turkish Bar Association, over a thousand Turkish lawyers were sentenced to between 6 and 12 years in prison in absolute disregard of the universal principles of criminal law as well as Turkey’s own constitution. The Arrested Lawyers Initiative documented that 529 lawyers have been sentenced to 3242 years under Article 314 of Penal Code which stipulates membership in an “armed terrorist organization”
❗️@ArrestedLawyers continues monitoring the situation of lawyers in 🇹🇷 and collecting data on their arbitrary imprisonment. W/ the latest batch of data provided by colleagues from @weltanwaelte_eV, we are able to say that since 2016, 529 lawyers have been sentenced to 3242 years. pic.twitter.com/HyIsCi3uw8
— The Arrested Lawyers (@ArrestedLawyers) April 28, 2022
After nearly 6 years in prison, most of the imprisoned lawyers are nearing the end of their respective prison terms. That is naturally bringing into question the issue of parole or “conditional release” as well as “Good Conduct Reduction” i.e the reduction of one in a tenth of a convict’s term on the basis of his good behavior whilst serving it and allowing him to serve the remainder of his term in an “open prison” which is a correction facility with minimum restrictions and supervision.
Relevant Turkish Law
Turkish Law, Law No 5272 On the Execution of Sentences and Security Measures, allows a convict who has served a specific portion of his prison term in “good conduct” to serve the remainder of his sentence out of prison.
A convict serving his sentence in a prison is under a positive obligation to comply fully with correction programs. The prison administration closely monitors the participation of the convict in such programs and improvement, or deterioration, in his conduct is noted. Prison administration then prepares semiannual assessment reports on the convict’s behaviour for the “Management and Monitoring Committee” to carry out its own assessment of good conduct.
The composition of the Committee may vary depending on the nature of the offence for which the convict is serving a prison sentence. In terrorism offences, for instance, it consists of a public prosecutor and representatives of the Ministry of Family, Labour and Social Services and the Ministry of Health. If the committee assesses the convict to be in good conduct it files a parole application with the court. It is ultimately for the court to decide whether the parole application satisfies the time and conduct criteria and to release the convict.
Problem: Arbitrary application of parole rules
The arrest, trial and consequent imprisonment of Turan Canpolat has been marred with arbitrariness and even doctoring of official documents by the prosecution. In January 2016 Mr Canpolat is contacted on his phone by one of his clients who tells him that a number of police officers are searching his house. Mr Canpolat drives to his client’s house to make sure his client’s rights are not violated. When driving back to his office following the search he is contacted on his phone by the police who ask him whether he could come to the police station to deal with some formalities concerning his client. When he arrives at the police station he is immediately arrested. The prosecution is so keen to keep him locked that, in order for him not to invoke lawyer-client privilege, the police takes his client to a local notary public to formally dismiss Mr Canpolat as his lawyer and pays the notary’s fees.
It then transpires that the prosecution has actually removed another suspect from the arrest warrant only to replace his name with that of Mr Canpolat’s. When he raised the issue the trial, the Malatya Heavy Penal Court chose not to do anything about it. Malatya 2nd Heavy Penal Court convicted him because of representing some of the companies which have been shut down by emergency decree laws and for allegedly downloading and using ByLock Messenger (an encrypted communication app which was downloadable from the app stores of Google and Apple) although neither of these grounds were presented as accusations in the indictment. He was sentenced to ten years under Turkey’s anti-terror provision, and sent to Elazig Prison No: 2.
As Turan Canpolat was convicted for being a member of a terrorist organisation, he needs to serve three quarters of his 10-year sentence to be conditionally released, which corresponds to 26.07.2023. On the other hand, provided that he has served his term in good conduct he would be eligible for a further one-year reduction, i.e. one-tenth of his sentence. He would therefore be eligible to be moved to an open prison on 26.07.2022.
Turan Canpolat naturally asked to be moved to an open prison as semiannual reports about his conduct indicated that he would be eligible for it. The Management and Monitoring Committee of the Elazig Prison No:2 convened on 08.04.2022 to assess his conduct.
The Committee found that Mr Canpolat has “complied with the rules concerning the order and the security of the prison, acted in good faith when exercising his rights, observed fully his obligations, posed a low risk of reoffending and causing harm to the victims or others, had a good relationship with the prison staff and other inmates, had contributed to the order and security of the prison, his participation in educational and cultural programs were satisfactory, he was remorseful of the offence he was convicted of and he was, therefore, ready to be integrated back into the society”. The Committee, therefore, decided that Mr Canpolat was in “Good Conduct”.
Parole boards ask for written statements expressing admission of guilt
That should have been enough for another convict to be moved to an open prison. But apparently, Mr Canpolat was not just another convict. The prison administration summoned Mr Canpolat and to his utter shock asked him to sign a letter in which he was confessing to the offence he was convicted of and promising to the authorities that he repented of it and would never repeat it. He was told that until and unless he signed that letter he would not be moved to the open prison. Mr Canpolat naturally refused to sign it as there was no legal basis for it and what the prison administration did was unlawful. He was consequently denied a move to an open prison although he was entitled to it.
Certain groups in the government, bureaucracy and the public seem to be struggling to come to terms with the fact that those who have been convicted of their links to the Gulen Movement have been completing their long custodial sentences and being released. Only a few weeks ago it transpired that Sedat Laciner, a professor of International Relations and a former rector of Canakkale University, was given a disciplinary penalty by the administration of the prison where he was being held on the very day, he was due to be released on good conduct after spending more than 6 years in prison.
Case of Imprisoned Judge Mustafa Baser
Judge Mustafa Başer was detained in 2015 after he ordered the release of 75 police officers who had been arrested for carrying out the famous 2013 corruption investigations into family members of cabinet ministers as well as the son of the then prime-minister Recep Tayyip Erdoğan. Mr Baser who has been imprisoned since, was diagnosed with cancer and recently underwent a major surgery. Baser has been denied conditional release even though he has been legally eligible to it as he has completed the mandatory time he had to serve on 22 September 2022. Again in September 2002 the European Court of Human Rights (ECtHR) ruled Judge Başer’s detention to be unlawful. Even that did not result in his release from prison, even in the form of a conditional release.
According to official documents which the Arrested Lawyers Initiative examined, although the Parole Board conceded that Judge Baser did not commit any disciplinary offence and he attended all of the prison training programs he needed to attend still denied him a conditional release on the ground that “his remorse was not genuine (insincere)”. The Board’s decision is prima facie arbitrary as it did not define the term “genuine” and did not provide any reason for its decision. Although Judge Baser appealed against the Parole Board decision in question on 22 September 2022, his appeal petition was “lost” by the prison administration and was never delivered to the “Ankara Judge of Execution” responsible for matters concerning the rights of prisoners. What is more outrageous is that the Ankara Judge of Execution swiftly upheld the decision of the Prison Observation Board on 21/09/2022 and did not even wait for the statutory appeal period to lapse. Judge Baser’s arguments and objections against the Parole Board’s decision were therefore not included in the file of the Ankara Judge of Execution and thus not considered as part of its approval decision.
According to the United Nations Basic Principles for the Treatment of Prisoners adopted by the General Assembly on 14 December 1990, all prisoners shall be treated with respect due to their inherent dignity and value as human beings. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
According to the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) adopted by General Assembly on 14 December 1990, rules about non-custodial measures shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. And the application of these shall be without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status.
These three cases are not isolated examples, just the most known of the widespread practice that shows not only prosecutions and convictions of the government critics but also the execution of their sentence is governed by arbitrariness which, as a last-ditch attempt, aims to defraud the victims of their dignity by forcing them to confess a crime that they have never committed.
The Erdogan administration should do the decent thing and let people like Turan Canpolat and Sedat Laciner move on.