Unequal Execution Regulations Deepen Injustice

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. 

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.