Release for the Sake of the Right to Life: The Sentence Reduction Contemplated on Account of the Coronavirus

Assoc. Prof. Dr. Murat Volkan Dülger^* Attorney-at-Law Ruhsar Köse^*

The global epidemic caused by the coronavirus (COVID-19) is threatening human health and life both in our country and throughout the world. The World Health Organization has declared a “pandemic” (an epidemic spread across the world) on account of the coronavirus. Indeed, in our country too, the number of cases and deaths is unfortunately rising every day. The fact that no treatment has yet been found for the disease caused by the virus is, moreover, bringing great anxiety and unease to every part of society. However, the fact that the authorities in our country took the necessary measures early, and that a large majority of the population has “relatively” complied with and supported these measures, is, “at least for now”, preventing a situation like that of Italy from arising in our country. We see that everyone, in both the public and the private sector, is trying as best they can to take the measures incumbent upon them.

The institutions and individuals within the justice system, such as the Ministry of Justice, the bar associations and law offices, are likewise trying to take whatever measures they can. In this context, in line with the declaration and recommendations of the Council of Judges and Prosecutors dated 13.03.2020, it has been decided that, apart from cases involving pre-trial detainees and urgent matters, no hearings will be held until 14 April, and that in cases involving pre-trial detainees the accused will take part in the hearings by connecting from prison via the SEGBİS system, without being brought to the courthouse. We would also point out that, particularly for detainees who are brought from prison or transferred, the danger posed by the virus would cause harm that is difficult or impossible to remedy. As lawyers, we too consider that the decisions taken are appropriate, and that the adjournment of hearings, the fact that detainees are not being brought from prison and the switch by many law offices to working from home are highly appropriate and effective measures.

Various media outlets are carrying reports that the Ministry of Justice is working on the situation of pre-trial detainees in prisons in view of the risk of the coronavirus epidemic and on new legislation on the execution of sentences in that connection. There are even views to the effect that the governing party has taken a decision on the matter and that the other parties support that decision. On examining the reports in question, we find it stated that, under the planned legislation, the amendment to be made to the system for the execution of sentences envisages the release of approximately 100 thousand convicted prisoners and/or pre-trial detainees before the virus reaches them; that sentences will be reduced proportionally, with the exception of terrorist offences, organised crime, the manufacture of and trafficking in narcotic or stimulant substances, sexual abuse, intentional killing and repeat offences; and that in this way the occupancy rate of prisons will be lowered and the risk of the virus spreading reduced to a minimum. As an alternative to this proposal, it is also being debated whether a reduction at a certain rate should be applied to all offences other than terrorist offences.

We must first state that we are wholly opposed to the practice of partial amnesties – whether or not they are expressly called an “amnesty” – by means of various omnibus laws or of provisions periodically introduced into the Law on the Execution of Sentences that entail certain reductions of sentence, to the perception of “impunity” thereby created in society, and to the destruction of the belief and confidence, expected of the criminal justice system, that “a person who commits an offence will be punished”. Moreover, from the standpoint of criminological assessments and penal science, it is observed that where persons who have committed certain offences are released far earlier than their term of sentence and without the reform mechanism expected of criminal justice having been fully brought to bear, they reoffend, committing the same or different offences. In numerous criminological studies, particularly in the United States, these findings are presented statistically for the offences of “theft”, “drug trafficking”, “sexual assault and abuse” and “violence against women”, and it is stated that in the case of these offences rehabilitation and socialisation are difficult and slow. Impunity therefore gives rise to problems from both a sociological and a criminological point of view.

However, particularly in the application of the measure of pre-trial detention, we unfortunately frequently encounter arbitrary decisions that impair the very essence of individual rights and freedoms, lengthy proceedings, adjournments of hearings of up to four or five months and very long periods of detention. These practices, which go beyond the purpose of the measure, of course amount to a violation of the right to liberty and security of person and of the right to a fair trial guaranteed by the 1982 Constitution and the European Convention on Human Rights, and cause harm that is difficult or impossible to remedy for the detained person and his or her relatives. Yet this arbitrariness and malpractice in the measure of “pre-trial detention”, an open wound of our country’s criminal justice system, persists despite the conditions of Art. 100 of the Code of Criminal Procedure (CMK), which are so strict as almost to say “do not detain”.

In this context, in the face of the virus epidemic we are living through, which is affecting human health and life on a global

scale, and having regard also to the occupancy rates of prisons in our country, we consider that the envisaged legislation is highly necessary and appropriate in terms of individuals’ “right to life and physical integrity” guaranteed by the European Convention on Human Rights and the Constitution; that otherwise great and irreparable losses will be suffered; and that these losses will also affect a large part of society.

According to Art. 2(1) of the European Convention on Human Rights: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.

According to Art. 17(1) of the 1982 Constitution: “Everyone has the right to life and the right to protect and develop his or her material and spiritual existence”.

In our opinion, these measures to be taken with a view to a reduction in the execution of sentences are highly appropriate in terms of the “right to life” protected by the international conventions to which we are a party and by our Constitution, particularly in respect of persons held in long-term pre-trial detention, bearing in mind also that pre-trial detention is nowadays applied, in a manner that is virtually unlawful, as a punishment. This legislation will be a positive step with regard to the “violation of procedural safeguards”, one of the areas in which our country has had the largest number of violation judgments delivered against it by the European Court of Human Rights.

Providing basic public services such as education, health, justice, security and infrastructure is among the State’s most important obligations. The most important aspect of being a state governed by the rule of law, in turn, is the establishment and operation of a legal system that functions fairly, swiftly, well and impartially. The criminal justice system is an important component of this. In such a system, citizens expect the State to find the real perpetrators of the offences committed, to try them fairly and to have them serve the sentences imposed on them in full under appropriate conditions. This is a natural expectation that every citizen has of the State, and a fundamental right. Yet persons who have committed an offence (convicted prisoners) or whose liberty has been restricted as a precautionary measure on the allegation that they have committed an offence (pre-trial detainees) also have the right to live in a healthy environment. Keeping these persons in a healthy environment is also an obligation for the State that enforces the sentence or the measure. Accordingly, in such circumstances:

1. The right to life of convicted prisoners or pre-trial detainees is a right that outweighs individuals’ expectation that offenders be made to serve their sentences in full, 2. In such a pandemic, the prison officers who deal with these convicted prisoners or pre-trial detainees, prison staff, those responsible for internal and external security, lawyers, and the family members both of the convicted prisoners and detainees and of those who deal with them are at high risk; this risk must without fail be reduced,

3. On the other hand, the State has an obligation to protect the life and health of these persons.

It is clear that, if these measures are not taken, in the event of an outbreak in prisons, pre-trial detainees and convicted prisoners, their visitors, their lawyers, prison officers and prison staff, and everyone with whom these persons are in contact will be affected; that irreparable and irreversible harm will result; and, most importantly, that individuals’ “right to life”, which is protected absolutely by the European Convention on Human Rights and the Constitution, will be violated.

In conclusion, we are of the opinion that this legislation – that is, the institution of amnesty, albeit in disguised form – which we believe should be resorted to only as a last resort in extraordinary times, will be appropriate when the circumstances in which we find ourselves are considered as a whole.

We must stress that this legislation should be applied on an exceptional basis, that the normal regime should be restored once the risk has passed, and that the reductions should not be permanent. A permanent reduction of the periods of execution in particular would give rise to the drawbacks, mentioned above, with regard to the execution of sentences.