Protection of the Rights of Prisoners through Individual Application*
I would like to extend you all my most sincere and respectful greetings.
I wish that this symposium organised by the Human Rights and Equality Institution of Türkiye (HREIT) be successful and fruitful. Besides, I would like to extend my gratitude to the Head of the HREIT, who have proposed such a significant issue for the agenda, as well as to everyone contributing to this organisation. I also thank all participants for their contributions.
A public execution took place on 2 March 1757 in Place de Grève, Paris. Damiens, who had assassinated the King with a knife, was applied red-hot pincers on various parts of his body into which molten lead, boiled oil, beeswax molten with boiled resin and sulphur were poured. His body was then quartered by four horses. After his death, the remains of his corpse were reduced to ashes and scattered in the wind.1
This execution, which was a true story, is depicted on the first page of the book written by Michel Foucault, titled “the Birth of the Prison”. Foucault provides a good description of the punishment system in Europe whereby the offender is publicised and sentenced to death by being subject to torture, or imprisoned. According to Foucault, the punishment was intended to target no longer the body but rather the soul, which was mainly effected by depriving the person of liberty.
Stating that “Criminal imprisonment has, since its beginning in the 19th century, entailed both the deprivation of liberty and technical rehabilitation of individuals”, Foucault pointed to the punishing and rehabilitating functions of modern prison system.2 For this very reason, I consider that “penitentiary institution (“hapishane” in Turkish)” is more convenient than “prison (“cezaevi” in Turkish)” so as to exactly reflect the double function of the institution.
The development with respect to these two main functions of penitentiary institution brought along the prevalence of the understanding that human rights would not be derogated at the entrance of penitentiary institution. As a matter of fact, a significant number of the individual applications brought before the Turkish Constitutional Court (“Court”) has been lodged by those held in penitentiary institutions.
In its judgments, the Court notes that the prisoners are entitled to, in principle, enjoy all fundamental rights and freedoms safeguarded by the Constitution.3 However, the cases taking place as a natural consequence of depriving a person of his liberty as well as the need for maintaining public order and discipline at the penitentiary institutions may entail the limitation of these rights.
At this point, it should be primarily noted that the Court has regarded the procedure, whereby a challenge is raised before the sentence-execution judge, as an effective remedy required to be exhausted before lodging an individual application. Therefore, in principle, in case of any act and action by the administration of the penitentiary institution, which constitute an interference with the fundamental rights and freedoms, a challenge is to be raised primarily before the sentence-execution judge.4
The subject-matters of the individual applications lodged with the Court by those in penitentiary institutions also vary depending on the particular circumstances of every case. Regarding the conditions of detention in penitentiary institutions, the Court has so far received applications regarding alleged violations of several rights and freedoms, including but not limited to prohibition of ill-treatment, right to respect for private life, right to a fair trial and freedom of expression.
For instance, Article 17 of the Constitution also guarantees that the conditions in which a prisoner is held in a penitentiary institution be compatible with human dignity. As a matter of fact, Article 6 of the Law on Execution of Sentences and Security Measures sets forth “deprivation of liberty necessitated by the execution of an imprisonment sentence shall be effected in material and moral conditions which ensure respect for human dignity.”
In conformity with this provision of law, the Court has stressed that the methods applied and conducts adopted in the sentence-execution process must not cause the individual to suffer distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in the deprivation of liberty. In this context, the conditions compatible with human dignity require, in particular, the provision of health care facilities and necessary medical assistance.5
In the same vein, the presence in person of the prisoners at the courtroom is one of the safeguards afforded by the right to a fair trial. As indicated by the Court, this right may be restricted merely in circumstances necessitated by the particular conditions of a given case. The same is the case also for the proceedings before the sentence-execution judges dealing with the complaints raised by the prisoners.6
On the other hand, the Court has on many occasions underlined that the freedom of expression of the prisoners is also covered by Article 26 of the Constitution. The Court has held that the access of prisoners to periodicals and non-periodicals is also under the protection of the freedom of expression.7
According to the Court, it must be scrutinised whether a fair balance has been struck between the prisoners’ freedom of expression and the necessity of ensuring and maintaining safety, discipline and order at the penitentiary institution as well as the need for rehabilitating the prisoner. It makes such an examination on the basis of the grounds put forward. Accordingly, any unjustified interference with the freedom of expression or any interference having a justification that fails to meet the criteria laid down by the Court will infringe Article 26 of the Constitution.8
The scrutiny of those wielding public power has been considered, since the ancient time, as a requirement of the protection of fundamental rights and freedoms. When it is the penitentiary institution that is at stake, such scrutiny makes more sense. In this sense, two types of scrutiny come into play as regards penitentiary institutions. The first one is the monitoring of the prisoners by the prison officers. Probably the extremist example in this regard is the prison model called as "Panopticon", which was designed by Jeremy Bentham. Panopticon is an institutional building of a circular structure with a yard and rotunda at its centre. The guardians at the rotunda are able to watch all inmates held in the cell surrounding the rotunda.9
The second type of scrutiny is the supervision of the prison officials who monitor the prisoners. This is the repercussion of the ever-present question to the effect that “Who will watch and control the watchers (guardians)?” In general terms, this question, which indicates the necessity of scrutiny of all individuals wielding public power, also refers to the necessity of monitoring prisons.
It should be noted that the Court takes into consideration and assesses the reports issued by the prison monitoring boards, with respect to the complaints raised by those held in prisons as to the alleged violations of fundamental rights and freedoms. Especially in ascertaining whether there is a violation of ill-treatment within the meaning of detention conditions, the Court takes into account also these reports.
In one of its relevant judgment, the Court has held “Along with the information obtained from the official web-site of the Rehabilitation Centre, the letter, dated 30 June 2016, of the Directorate General of Prisons and Detention Centres and the information included in the reports of the Prison Monitoring Board submitted enclosed are the most significant data that may be taken into consideration for an assessment as to the conditions of the applicant’s detention.”10
Consequently, as stressed in the Court’s judgments, fundamental rights and freedoms shall be exercised also by those who are deprived of their liberty. The constitutional and legal duty incumbent on the State is to secure the protection of these rights and freedoms, as well as to effectively monitor whether there has been any violation thereof. In this sense, I am of the opinion that this symposium is of utmost importance.
With these feelings and considerations, I wish this symposium be successful and fruitful. I also wish you all health and prosperity.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|
* Opening Address, “Symposium on the Monitoring of Penitentiary Institutions in respect of Human Rights and Criminal Justice System” organised by the HREIT, Ankara, 2 March 2022.
1 Michel Foucault, The Birth of the Prison, Trans. by M. Ali Kılıçbay, Ankara: İmge Kitabevi, 1992, p. 3.
2 Ibid., p. 292.
3 Bejdar Ro Amed (2) [Plenary], no. 2014/10257, 30 November 2016, § 32.
4 Mehmet Hasan Altan (2) [Plenary], no. 2016/23672, 11 January 2018.
5 Turan Günana, no. 2013/3550, 19 November 2014, §§ 36, 39.
6 Emrah Yayla [Plenary], no. 2017/38732, 6 February 2020.
7 Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 43.
8 Bejdar Ro Amed (2), §§ 36, 46.
9 Jeremy Bentham, Panoptikon: Gözün İktidarı, 3rd Issue, Trans. by B.Çoban and Z. Özarslan, İstanbul: Su Yayınları, 2019, p. 74.
10 Ergin Aktaş, no. 2014/14810, 21 September 2016, § 90.