Hakan Aydin* & Leighann Spencer
On 15th of July 2016, just five hours after the controversial coup attempt began in Turkey – a time when the responsible could not possibly be determined – the Prosecutor of Ankara appeared on NTV channel to declare that 2,745 judges and prosecutors were to be arrested1. Since then, 4,560 judges and prosecutors have been dismissed from their duties and 2,728 arrested without according right of defence2. For 680 of these arrested judges and prosecutors, another type of mistreatment has been executed: they became isolated and imprisoned in separate cells without any appropriate reason or justification. One of them, Ayhan Bora, applied to the European Court of Human Rights (ECtHR) regarding being kept ‘under isolation’ in prison, which is in fact against domestic and international law.
The ECtHR analyzed Bora’s application under the article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment. For a case to be found in violation of Article 3, the mistreatment must attain a minimum level of severity based on all the data available; for example, the gender, age, medical conditions of the victim and the detention conditions.
The Erdogan Government stated in its defence that applicant Bora was arrested for “membership to a terrorist organization” and that the decision of isolation was for security reasons “in accordance with the 9th and 111th articles of the law no. 5275 on the execution of penalties”. Law no. 5275 lays down the procedures and rules concerning the execution of penalties and security measures, with the articles respectively outlining who can be held in high-security institutions and where remand orders are to be implemented.
The ECtHR found that Bora received regular medical attention, the physical conditions of the cells were sufficient, and he was allowed ventilation for one hour per day with two other inmates accompanying. For a precaution like isolation to be justified, it must be examined within the conditions of the case, the severity of the precaution, its duration and its purpose. If deciding to extend the duration of the isolation, authorities must ensure that the evolutionary conditions, the situation and the attitude of the inmate are considered. After mentioning those guidelines, the ECtHR indicated that Article 3 was not violated as the situation did not reach to the minimum level of severity. However, the court warned that this decision is not a permission for the Turkish Government to make the inmates serve all their sentence in these conditions. The detention conditions should be improved day-by-day otherwise that situation could amount to a violation3.
The decision of the ECtHR is far from being lawful regardless of the government’s defence and the justifications that the court has indicated. As the main ground of this measure in the domestic law, the law no. 5275 regulates who would be sent to the high security prisons and who could be kept under isolation. According to the article 9(2)(e), those who are ‘sentenced’ of being a member of a terrorist organization would be sent to high security prisons. In the 3rd paragraph of this article, it is stated ‘arrested’ persons can be sent here if they are “those who are in a dangerous condition due to their actions and attitudes and whom it is determined must be kept under special control and supervision and those who violate order and discipline at the institutions in which they are kept or who insist on resisting measures, instruments and procedures of rehabilitation shall be sent to these institutions”.
Law no. 5275 further explains that “cell punishment or solitary confinement” can be applied for those “who are convicted to heavy life sentence” according to article 25(1). Article 44 lists other acts punishable by solitary confinement, such as attempting to escape, stage a riot, attacking other inmates or staff. But even these cases, confinement can only continue for a maximum period of 20 days if the seriousness warrants it. Therefore, it is completely against domestic regulations that isolation is applied to the arrested judges and prosecutors who were not convicted of a heavy life sentence, who do not possess a concrete danger to be put in a high security prison and who have not received a punishment under Article 44. These decisions of isolation, which are applied arbitrarily and without court approval, clearly have the purpose to torture and psychologically damage.
In addition, it is stated in the Turkish Constitution that no one can be discriminated against (Article 10), everyone’s pecuniary and non-pecuniary possessions will be protected (Article 17), any unlawful punishment cannot be applied (Article 38). In Article 15 of the European Convention on Human Rights – derogation in time of emergency – it is specified that the situations in which a State may validly derogate do not allow for precautions that are against Article 2 (the right to life), Article 3 (the prohibition of torture), or Article 4 and Article 7 (no crime and punishment without law). In other words, there is absolutely no justification for torture or arbitrary punishment.
In the 17th paragraph of the Bora v. Turkey decision it is said that “the social and complete emotional isolation of an inmate can destroy the personality and thus, it can form an inhuman treatment. On the other hand, the isolation punishment itself for the security issues, the discipline and protection do not form a punishment and inhuman treatment. While examining the measure under the scope of the Article 3 in a specific case, the conditions of the case, the severity of the measure, its duration and purpose should be considered.” Despite this, the clear unlawfulness – which cannot be justified by the domestic law nor is based on any court verdict or decision – of the measure is ignored. Due to the aforementioned reasons, the outcome of the Bora decision remained obviously quite below than the human rights standards of the Turkish domestic law regarding the conditions of detention let alone the standards set forth before in the jurisprudence of the ECtHR.
The prison authorities who apply such punishment under pressure by the Erdogan government know very well that there is not a single concrete reason about the arrested judges that require the isolation precautions to be applied, so they do not request any decision about this from the execution courts and continue to apply it arbitrarily. The judges and prosecutors arrested without any concrete evidence and sufficient suspicion are held under much more difficult conditions than other inmates, and for a long time. While others can use the ventilation with the rest of the inmates for 12 hours a day, they are allowed only for an hour per day. They are deprived from all social activities, from eating, speaking and spending time with the other inmates during the remaining 23 hours. Many judges and prosecutors are imprisoned with these heavy conditions for approximately 18 months. Unfortunately, authorities who apply these conditions will be encouraged by the decision of the ECtHR.
On top of all this, applying a precaution or a punishment under isolation is an exceptional practice which must have limits regulated by international arrangements. In the report Safety and Security of Human Honour in Prisons, supported by the EU, the following points are emphasized regarding isolation and cell punishment: “The terms cell punishment and isolation is used to define the physical isolation of the people by locking them into their cells for 22-24 hours a day. Typically, the interaction with the other people is reduced to minimum.
Isolation and cell punishment poses a high risk for human rights. A long-lasting cell punishment may become a torture, inhuman and humiliating treatment itself and it was detected that it causes severe medical problems.” According to medical research, the restriction of interaction with people can cause isolation syndrome which has symptoms such as anxiety, depression, anger, mental fog, paranoia, psychosis, self-harm and suicide. In the Istanbul Declaration, it was stated that: “Cell punishment may cause severe psychologic and physiologic results. The most important negative effect of it is that it reduces the social interaction below social and psychological irritability level of maintainability for many people.”
The ECtHR stayed indifferent to the destruction of human rights and law by the Erdogan Regime and encouraged them to do so by making this decision without considering the arbitrary mass arrests and implementations within the pretext of fighting against terrorism. A prime example of arbitrary arrests/implementations by the Regime without reliable evidence is that until recently, using the encrypted communication application “ByLock” was considered enough evidence for being a member of a terrorist organization. This was soon understood as not true, yet 11,480 people were held in prison for more than a year only because of this ‘evidence’4. There are media reports that many people suffered severe medical and family problems, with four committing suicide, because of this unjust treatment5. Furthermore, Judge Ayhan Bora himself was acquitted and released in January 2018 due to a lack of evidence for being a member of a terrorist organisation.
The damage done to the judges and prosecutors who are being held under isolation in prisons differently from other inmates has already became irretrievable. We keep our hope that the international mechanisms on protecting human rights and the international community would take relevant initiatives and raise their voices against the harsh persecution of the Erdogan government on dissidents before it becomes too late.
*Name has been changed to protect their identity