International legal organizations, including the Turkey Human Rights Litigation Support Project (TLSP), the European Association of Lawyers for Democracy and the World Human Rights (ELDH), the Association for Democracy and International Law e.V. (MAF-DAD), and the London Legal Group (LLG) submitted a Rule 9.2 communication to the Council of Europe Committee of Ministers regarding the Gurban case group, presenting their legal opinion on Turkey’s implementation of European Court of Human Rights (ECHR) rulings.
The legal opinion prepared by TLSP, MAF-DAD, ELDH, and LLG was published on the Committee of Ministers’ official website.
Lawyer Ayşe Bingöl Demir, Turkey Director of TLSP and one of the contributors to the preparation of the opinion, shared her assessment with ANF regarding the submission on the right to hope.
The TLSP, the MAF-DAD, the ELDH, and the LLG submitted a Rule 9.2 communication to the Council of Europe Committee of Ministers regarding aggravated life imprisonment sentences in Turkey. You also contributed to the preparation of this opinion. To begin, how do you evaluate the fact that civil society monitors the implementation of ECHR judgments and the supervision of their enforcement? Furthermore, what kinds of problems exist in state institutions’ practices that civil society has felt compelled to focus more heavily on this area in recent years?
As you know, civil society organizations within Turkey, as well as those abroad working on Turkey, are in agreement on one issue: there is a deepening crisis in human rights, the rule of law, and democracy in the country. This crisis has many dimensions: systemic, political, legal, social, and societal.
Through the TLSP, which I direct, and through the organizations I am a member of such as the ELDH, MAF-DAD, and the London Legal Group, we conduct strategic litigation in response to this ongoing crisis. In other words, in situations where human rights violations are systematic and widespread, we pursue legal struggle through various avenues and methods.
For TLSP, a very significant part of our work is dedicated to the Committee of Ministers of the Council of Europe, specifically to the supervision process of ensuring the implementation of ECHR judgments. The reason is this: of course, the legal struggle regarding ongoing human rights and rule of law violations in Turkey is crucial. This includes the Constitutional Court domestically, and at the international level, the ECHR and the United Nations.
But ensuring the implementation of judgments that have already been delivered and finalized is also an essential and complementary dimension of this work. When we look at the judgments delivered by the ECHR against Turkey in the late 1990s and 2000s, particularly those that touch upon political issues, we see that they have systematically not been implemented and their requirements have not been fulfilled.
In fact, these judgments also provide us with a map of the ongoing human rights violations and fundamental systemic problems in Turkey. Therefore, ensuring the implementation of these judgments is an important field of work. At TLSP, when we consider which judgments or groups of judgments to focus on, we prioritize how systematic, significant, and wide-ranging the violations are. Among these is a group referred to as the Gurban group of judgments, which includes four key rulings: the Öcalan-2 judgment, Gurban, Kaytan, and Boltan. Within this group of judgments lies the regime of aggravated life imprisonment in Turkey, under which a certain group of convicts are subjected to sentences carried out until death. This is an area on which we have been working, forming coalitions, and placing significant importance.
Of course, there are many other areas where we conduct similar work. As you know, systematic rights violations in Turkey are not limited to this. There are many political prisoners and convicts in the country. In their cases, we frequently encounter violations of the right to a fair trial. There are also numerous judgments of the ECHR concerning violations of the right to liberty and security, freedom of expression, the right to peaceful assembly, and freedom of association. These judgments are still waiting to be implemented.
The Gurban group of judgments is one such example. The first of these, the Öcalan-2 judgment, was delivered by the ECHR in 2014. Subsequently, the other rulings followed. Even though eleven years have passed since then, we see that Turkey has still not fulfilled the requirements of these judgments. Therefore, this group represents a set of judgments where Turkey has been politically resisting compliance.
Of course, this issue is not limited to the four individual applicants. Turkey does not share official statistics on this matter, but analyses conducted by civil society organizations indicate that there are more than four thousand convicts subject to this regime in the country. Especially after the attempted coup in 2016 and the subsequent collapse within the judiciary, many trials were held on similar charges. We do not know the exact number, but it is understood to be very high, because we are aware of the large number of prosecutions under the provisions of the Turkish Penal Code that define “crimes against the state,” “crimes against national security,” and “crimes against the constitutional order.”
Therefore, the Gurban group of judgments concerns a very large number of convicts and detainees. Moreover, the problem highlighted by these judgments is one that carries the potential to overcome a political deadlock in Turkey. Multi-faceted work is being carried out on this issue, and it must continue. The Committee of Ministers is one important part of this process.
Now, you asked, “What problematic practices exist within the state in Turkey regarding this matter?” First and foremost, under the Execution of Sentences Law and the Anti-Terror Law, there exists in Turkey a regime of aggravated life imprisonment applied to those convicted of so-called organized crimes against the state, the government, national security, or the constitutional order. This regime entails sentences carried out until death.
In other words, these individuals are denied any right to conditional release after serving part of their sentence. And here, we are not only talking about the right to conditional release itself, but even the right to request conditional release the right to hope, the possibility of envisioning a chance to leave prison one day after a certain period of time.
The “right to hope” that we refer to is not recognized in Turkey. Within the criminal justice and judicial system, there is no mechanism available for this group of convicts.
The ECHR, in its first judgment on this matter in 2014 and in subsequent rulings, including earlier decisions concerning countries such as the United Kingdom stated that “the failure to guarantee the right to hope constitutes a violation of Article 3 of the European Convention on Human Rights.”
Article 3, which enshrines the prohibition of torture, is one of the most fundamental rights protected under the Convention. According to the Court’s jurisprudence, a state cannot sentence an individual to life imprisonment and then keep that person incarcerated under a regime where there is no stage or condition at which they can even request release.
Under the Convention, a life-sentenced prisoner must be granted the right, after serving a certain period of time, to request release or a reduction of sentence through a review mechanism. Turkey, however, does not recognize this right and continues to disregard the ECHR’s rulings on the matter. The Committee of Ministers is currently conducting a monitoring process in this regard. In September, the Committee will hold its third meeting on this issue, following previous discussions in 2021 and 2024.
There will be a meeting in September, as you mentioned, but before that, Turkey submitted an Action Plan to the Committee of Ministers at the end of June. Do you find Turkey’s submission to the Committee of Ministers sufficient?
Turkey’s Action Plan on this matter was submitted before the notification we prepared together with TLSP, ELDH, MAF-DAD and LLG. Therefore, we briefly addressed it in our work. However, civil society organizations in Turkey, in their own notification, provided a much more detailed evaluation of the Action Plan.
Of course, Turkey’s Action Plan is not sufficient. During the monitoring process, Turkey has already submitted several other action plans to the Committee. The essence of all of them is the same: they state that the fundamental regime in the country recognizes the right to conditional release in life sentences, and that the group we are discussing is an exception, limited in scope. The Plan also makes reference to the judicial reform strategy and the human rights action plan, but it does not in any real sense provide a concrete or substantive action plan.
You just mentioned the figure of 4,000. This seems to go far beyond an exception. How realistic is Turkey’s attempt to present this as an exception?
Indeed, that is precisely why Turkey does not share statistics, as I mentioned earlier. In its two decisions so far, the Committee of Ministers has, at the insistence and request of civil society organizations, asked Turkey to provide such statistics.
At present, how many prisoners are subject to this execution regime? Turkey does not disclose this information. The reason, as you suggested, is the attempt to conceal the fact that this regime is not an exception but rather a very widespread and systemic issue affecting a large group of people. It is, in reality, an extensive and ongoing crisis.
As civil society, in your submission concerning the Gurban, Kaytan, Öcalan-2, and Boltan judgments, what points did you recommend should be taken into consideration? Could you share a few of them with us?
As civil society organizations working in the field of international law, we prepared a submission with a two-dimensional approach, centered on international law. The first dimension focuses on the following questions: within the framework of all the judgments delivered by the ECHR concerning the execution of life sentences in compliance with the Convention, what criteria should a state take into account when establishing such a system? What does this system require in the context of human rights law, and what are its fundamental rules and criteria?
Our second dimension is based on a reference that the Committee of Ministers itself has made in its two decisions concerning Turkey: the need for reform by drawing on good practices among other Council of Europe member states. This second dimension of our submission focuses on identifying those good practices and analyzing what has been done in states considered as positive examples. In other words, it aims to offer recommendations that can serve as a roadmap for change.
In the first dimension, we examined the line of case law starting from Vinter v. the United Kingdom and continuing through subsequent cases concerning countries such as the United Kingdom, France, Hungary, the Netherlands, Lithuania, Slovakia, and Turkey. When you bring together and analyze all these judgments, you reach clear conclusions about what should be in place.
This is also a matter of ongoing debate in Turkey. Yes, the right to hope must be recognized, but the crucial questions are: how and in what form should it be recognized? What needs to be done? What should be taken into account in the legal reforms and in practice?
Most fundamentally, those currently serving aggravated life sentences under the regime of imprisonment until death must be granted the right to hope. This means that after serving a certain portion of their sentence, they should be entitled to request that the remainder be executed under a conditional release regime. And this right must not be a mere formality on paper but a genuine, substantive right.
Beyond that, the period of imprisonment before making such a request must not exceed 25 years. It may be less, but it cannot go beyond 25 years. And in the event of a rejection at the first review, subsequent reviews must be carried out at various periodic intervals. The criteria to be considered in the review must be individualized and objective. In other words, they must not be open to discretion or broad interpretation. Procedural safeguards must be afforded to the individual, and this right must be granted without exception to everyone. In other words, within this system there should be no exceptional groups.
Of course, there must be an institution or a mechanism to conduct this review. This could be, for example, a court; it could be a board composed of members of the judiciary, judges; or it could be an independent administrative board without judicial status. But in any case, the decisions of this mechanism must be open to judicial review and appeals must be possible.
The process must function separately and independently from government oversight and intervention. The individual, that is, the prisoner, must be given the right and the possibility to take an active role in this process. The prisoner must be heard directly or through their lawyer, be able to present evidence, and argue before the mechanism. Throughout this entire process, they must have very clear and precise foreseeability and access to information regarding their rights.
As I mentioned, the criteria of the institution carrying out the assessment must be objective and individualized. The fundamental issue here is this: within the principles of criminal law and criminal enforcement law, is there still a necessity for the prisoner to remain incarcerated? In answering this question, some general criteria and evaluations should be taken into account, such as the passage of time and whether the individual would pose a social risk or danger if released. In the first part, we make an assessment of these elements.
In the second part of the submission, we build an analysis based on the good practices I mentioned earlier. We do this in two groups. The first consists almost entirely of positive examples. Among these are Slovakia, Lithuania, and France. All three countries have, in one way or another, been subjected to the scrutiny of the ECHR on this issue, and each has introduced reforms in their systems in line with the Court’s judgments.
Some established a judicial mechanism, while others created an independent administrative mechanism and linked it to judicial review. There is diversity among them in terms of the length of imprisonment required: some grant the right to hope after 20 years of imprisonment, some after 18 years, and some after 25 years. In all three countries, prisoners are provided with procedural safeguards and objective criteria that apply to everyone. Their systems may not be perfect, but due to the positive elements within them, they have been considered by the Court or the Committee of Ministers as being in compliance with the Convention.
Secondly, we analyzed examples of countries whose systems contain positive aspects but have also been subject to serious criticism. These include Italy, the Netherlands, and Hungary.
All three of these countries introduced certain changes to their systems in light of ECHR judgments, but these changes did not fully resolve the problem. Their systems contain both compliance with and violations of Article 3 of the Convention, the criteria of the ECHR, and the demands of the Committee of Ministers. We carried out this group analysis partly to illustrate, in the context of Turkey, “what should not be done” in a reform process. It is a very comprehensive assessment. We also intend to translate the submission into Turkish in the hope that it will contribute to ongoing discussions in Turkey on this matter.
Ultimately, we provide the Committee with very detailed recommendations regarding the steps Turkey should take. Based on the conclusions we reached through all these analyses, we develop concrete proposals on what reforms in Turkey must necessarily include.
In addition, we emphasize that Turkey should involve civil society, bar associations, and experts working in this field in any reform process. In other words, they must also be part of the process, share their views, and the process should advance in this way.
We also call on the Committee of Ministers to continue active and effective supervision throughout this process. Because this concerns a group of violations of the prohibition of torture, and the prohibition of torture is among the core rights. Finally, we conclude our submission by stressing the importance of the Committee continuing to insist that Turkey provide statistical data on the number of prisoners deprived of the right to hope and on related issues.
Of course, you have presented recommendations in the legal opinion, but I would like to ask one final question. In your view, what path should state institutions, civil society, and the Committee of Ministers follow for the right to hope to be implemented in Turkey?
The Committee of Ministers should tighten its supervision on this issue and operate a more effective monitoring process. We conveyed this directly through our submission. As for Turkey, there are already very clear points: there needs to be a serious reform, starting with the Execution of Sentences Law and the Anti-Terror Law. Legal amendments must be introduced, mechanisms established through the relevant regulations, and the necessary measures taken to ensure that the system operates in conformity with the European Convention on Human Rights and ECHR standards.
One important point is this: at present, there is already a system of parole assessment and boards for other groups of prisoners. However, these boards are deeply problematic. Their structure, their members, their functioning, and their decisions are extremely arbitrary; they do not provide any legal safeguards and comply with none of the criteria I have described. Therefore, any mechanism to be established for this group should not subject them to the same system. The reform we are speaking of requires a revision that also addresses these boards.
On the other hand, civil society organizations in Turkey and the Kurdish political movement are keeping this issue on the agenda. This needs to continue. The demand for change on this matter must remain an essential part of the broader issues that the ongoing dialogue process has already brought and will continue to bring to the table.
With this dialogue process, the right to hope has gained a more visible place on the agenda. Civil society organizations, lawyers, and prisoners subjected to this regime have been struggling for this for years. In the current circumstances, the very fact that the issue is now on the agenda is itself an important achievement. I believe it is essential to sustain this.