Concurrent with the erosion of the rule of law, Turkey's criminal justice system is increasingly entangled in a web of issues. Prisons are grappling with overcrowding primarily stemming from "political trials," where the foundational tenets of a fair trial are being blatantly disregarded. Despite the release of hundreds of thousands of individuals due to amendments in execution regulations and pandemic-related permits, the prison population persists at approximately 350,000 convicts and detainees, significantly surpassing capacity limits. This level of overpopulation inherently leads to substantial human rights violations. Moreover, there are supplementary challenges arising from the incarceration of the sick, elderly, and juvenile offenders within these correctional facilities.One can contend that the surge in prison overcrowding can be attributed to the leniency with which decisions on detention and convictions are rendered in what are termed "political cases" – situations where the state, rather than private individuals, is perceived as the direct victim. This challenge, denoted as the unpredictable and sweeping interpretation of terrorism legislation, has been consistently highlighted by numerous international observers and organizations. In fact, one of the stipulations set forth for Turkey under the European Union's visa liberalization agreement is the clarification of the definition of terrorism.The prosecution and penalization of actions unrelated to violence, aligning more with the exercise of freedoms pertaining to expression, assembly, and association within the framework of terrorism offenses, generates a multifaceted dilemma within the realm of the rule of law.Nonetheless, it appears that the government's approach to addressing prison-related issues is not primarily centered around rectifying the previously discussed challenges of equitable trial proceedings and safeguarding fundamental rights. Rather, the emphasis seems to be on releasing ordinary criminals through amendments to the execution laws.In fact, as an illustration, the year 2020 witnessed Law No. 7242 introducing substantial changes to Execution Law No. 5275. Among these amendments, the rate of conditional release for conventional offenses was diminished from 2/3 to ½. Additionally, the law incorporated a provisional Provisional Article 9, revising the conditions for probation and conditional release concerning actions committed before March 30, 2020. This clandestine amnesty led to the immediate release of approximately 100 thousand individuals.&nbsp;Conversely, in response to the Covid-19 pandemic, a permit system was introduced for individuals in open prisons and those eligible for such placement, envisaging their transition to probationary status. However, it's noteworthy that these regulations excluded crimes against the state and terrorist offenses from their purview.Through the enactment of the "Omnibus Law" No. 7456, which marked one of the inaugural legislations following the May 2023 elections, a revision in execution and a concealed amnesty were introduced. Accordingly, the addition of Provisional Article 10 to Law No. 5275 extended the validity of the Covid-19 pandemic permit. Additionally, the sixth paragraph of the same law brought about alterations in the eligibility criteria for individuals incarcerated on or before July 31, 2023, allowing them to be transferred to open penal execution institutions, as well as enabling their access to probation and conditional release.Effectively starting from July 31, 2023, this regulation encompasses convicts within penal execution facilities who have spent a minimum of one month there if their cumulative sentence of imprisonment is below 10 years, and three months if the cumulative sentence surpasses 10 years. Furthermore, individuals who have three years or less remaining before their release to open penal execution institutions are encompassed by this directive. However, it's important to note that these amendments exclude crimes against the state and terrorist offenses from their coverage.The formulation and the extent of this regulation give rise to significant concerns. Foremost, the regulation presents attributes of a specific amnesty, substantively, and has been implemented without adhering to the 3/5 majority requirement typically associated with amnesty laws. Furthermore, the law's applicability deadline is poised to generate noteworthy complications: A segment of individuals who committed analogous offenses on identical dates will stand to gain from this directive due to the finalization of their sentences, while others will not be able to capitalize on it as their cases remain unresolved. Undoubtedly, this engenders overt disparities.Most importantly, political prisoners are again excluded.Consequently, these enactments have inadvertently generated a form of impunity for conventional offenses. Individuals found guilty of offenses like manslaughter, looting, theft, and sexual assault will reap the advantages presented by these regulations and ultimately secure their release. In stark contrast, those who have been convicted of affiliations with terrorist organizations or involvement in other state-related crimes, often merely due to the exercise of their constitutionally enshrined freedoms of expression, association, and assembly as dissidents, will persist in confinement. These asymmetrical provisions further exacerbate and intensify the existing injustices prevalent within the framework of the criminal justice system.

The Freedom Observer

The prosecution and penalization of actions unrelated to violence, aligning more with the exercise of freedoms pertaining to expression, assembly, and association within the framework of terrorism offenses, generates a multifaceted dilemma within the realm of the rule of law.

Unequal Execution Regulations Deepen Injustice

Within the scope of the lawsuit regarding the closure of the Peoples' Democratic Party pending in the Constitutional Court, the Chief Public Prosecutor's Office of the Supreme Court requested that the bank account to which the party's aid received from the treasury was being blocked, and the Constitutional Court gave the injunction to block the account on 5 January.[1] This decision was taken by the votes of 9 members, while 6 members objected. Evaluating the application made by the party for the annulment of this injunction, the Court decided to revoke the injunction on March 9, 2023, after receiving the defense of the defendant party.[2] This decision was made by the majority of 8 members, despite the opposition of 7 members. Between these two decisions, it is understood that the two members changed their minds. It is understood that the explanations in the said news belong to one of these members.According to the news, after the decision to lift the measure, the President called the members who voted to lift the measure and said, "I trusted you a lot. How do you vote to unblock accounts?" asked. There was no denial about this news. If the news is true, there is no doubt that the questioning of a high judge by the head of the executive body constitutes an intervention in the judiciary. The fact that such intervention takes place in an ongoing party closure case further increases the gravity of the situation. Because the decision to close a party while approaching the elections has the potential to affect the results of the election.One of the basic principles of the rule of law is the independence of the judiciary. In a country where the judiciary is not independent, the rule of law is emptied its meaning. The principle of equality before the law becomes inapplicable. In a place where the judiciary is not independent, the law and the judiciary cannot guarantee of rights and justice, on the contrary, they become instruments of arbitrariness and tyranny.Although the independence of the judiciary has always been problematic in Turkey, it has been expressed by all independent observers that the most fundamental problem facing the erosion of the rule of law in the last decade is the interference with the structural independence of the judiciary. The structural independence of the judiciary vis-à-vis the executive has been seriously weakened as a result of numerous constitutional and legal changes to the structure of the Council of the Judiciary (HSK) and high courts, the dismissal of one-third of the existing judges after the coup attempt, and the easing of conditions for the appointment of the large number of new judges.However, this news shows that the problem is not only structural but also that there may be direct interventions against judges and decisions. Such interventions not only lead to unjust decisions but also have political consequences. Controversial decisions, such as the cancellation of the Istanbul Metropolitan Municipality election given by the Supreme Election Board in the past, and the validation of unsealed votes in the Constitutional referendum, also had political consequences. During the election process, the Supreme Election Board will make decisions on critical issues such as whether Erdoğan will be a candidate for the third time, and whether the ministers can become a parliamentary candidates without resigning. Decisions must be free from any suspicion of interference. Such doubt makes democratic legitimacy questionable.Statements by a supreme judge that he was questioned by the executive for his decision are of historical significance. If these allegations are investigated and determined to be true, legal processes should be initiated. * Ali Rıza Çoban – Constitutional Lawyer<a fr-original-style="" href="#_ftn2" name="_ftnref2" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;" target="_blank" title=""></a>

In her news dated March 30, 2023, Seyhan Avşar from Halk TV revealed some allegations that she stated were based on the statements of a member of the Constitutional Court.  In the news, it is stated that after the Constitutional Court decided to lift the measure regarding the blocking of HDP's accounts, the President called the members who voted for the measure to be lifted and expressed his discomfort with the decision.

rule ile ilgili hikayeler