Ali Yıldız*
According to recent data published by the Turkish Ministry of Justice, there were 314,502 inmates in Turkish prisons as of March 31, meaning that Turkey has the sixth largest prison population in the world, following the US, China, Brazil, India and the Russian Federation. The number is high despite the fact that Turkey carried out two mass releases of prisoners: one in August 2016 to make room for political prisoners who would be detained during a two-year state of emergency declared after a failed coup in 2016, and the other in April 2020 to reduce the prison population in the face the COVID 19 pandemic.
Although more than 100,000 prisoners were released under these amnesties, Turkey’s prison population is still set to increase. With more than 314,000 prisoners, Turkey’s actual prison population rate is about 370 per 100,000 of national population, compared to 73 in 2000, 81 in 2004, 144 in 2008, 180 in 2012, 251 in 2016, 324 in 2018 and 319 in 2020.
These statistics are alarming in many respects. First and foremost, they show that Turkish penal policy is wrong. When replacing its criminal laws in 2004, Turkish legislators made the mistake of assuming that the severity of punishment was the main deterrent. Thus, the new Penal Code (Law no. 5237) dramatically increased prison terms, while the Law on the Execution of Punishments (Law no. 5275) increased the time of a sentence that must be served to benefit from parole and probation. Before 2004 a convicted felon had to serve two-fifths of a given sentence, but the new law increased it to two-thirds and for some categories of crimes to three quarters. However, Turkish legislators had ignored the wisdom of Italian criminologist Cesare Beccaria, who said in 1764 that “One of the greatest curbs on crime is not the cruelty of punishments, but their infallibility … The certainty of a punishment even if it be moderate will always make a stronger impression than the fear of another which is more terrible but combined with the hope of impunity …”
Beccaria’s concept has been proven true throughout history. The National Institute of Justice of the US Department of Justice admitted that increasing the severity of punishment does little to deter crime and that more severe punishments do not “chasten” individuals. Official Turkish statistics also confirm Beccaria. The number of criminal investigations across the country was 1.7 million in 2000, 2 million in 2004, 5.3 million in 2009, 6.7 million in 2013, 7.4 million in 2016 and 9.3 million in 2019. According to 2020’s judicial statistics, 13 million persons in Turkey are suspects in 9 million criminal investigations, meaning that every eight of 100 people are under criminal investigation.
The criminal justice system dispenses justice by apprehending, prosecuting and punishing individuals who break the law. Confidence in that system is essential for deterrence. However, according to the OECD`s 2021 report, the confidence of the Turkish people in the judiciary fell by 22 points to 38 percent between 2010 and 2020. According to a poll conducted in October 2021, 78 percent of Turks do not trust the judiciary. These polls coupled with the above-mentioned statistics show that the Turkish judiciary is malfunctioning. Indeed, according to the World Justice Project’s 2021 report the Turkish criminal justice system was ranked 103rd out of 139 countries.
Governing through fear
Another reason for the increasing number of criminal proceedings and the growing prison population could be the Justice and Development Party (AKP) government`s strategy of governing through fear. Prosecutions related to Articles 299 and 314 of the Turkish Penal Code (TCK) that regulate the offenses of “insulting the president” and “membership in a terrorist organization,” respectively, are emblematic in this regard.
According to 2020 judicial statistics, the number of investigations concerning insults of the president was 160,169 between 2014 and 2020. A total of 12,881 people have been convicted thus far. Although the European Court of Human Rights (ECtHR) found that this provision constitutes a systemic human rights problem and should be changed, Turkey has to date ignored the ECtHR judgment. Statistics on proceedings regarding membership in a terrorist organization are even more staggering. According to a report published by opposition deputy Mustafa Yeneroğlu, the former chair of the Turkish Parliament’s Human Rights Committee, over 1.5 million investigations have been launched under Article 314 of the TCK since 2016. According to a survey by The Arrested Lawyers Initiative, between 2016 and 2020 more than 265,000 individuals were sentenced for membership in an armed terrorist organization.
Last but not least, the discriminatory parole regulations have played a role in this problem. In August 2016 the Turkish government enacted an emergency decree to release convicted felons to make room for people arrested during the state of emergency. With this decree at least 38,000 convicted felons were instantly released, while some 100,000 others have been gradually freed under this decree. However, more than 100,000 people who are perceived as members of the Gülen movement have replaced them.
The Turkish government accuses the Gülen movement of masterminding the failed coup and labels it a “terrorist organization,” although the movement strongly denies involvement in the coup attempt or any terrorist activity.
Thus, by 2020 the prison population was over 300,000. In April 2020 the ruling AKP and its ally, the Nationalist Movement Party (MHP), passed another early release bill under the pretext of reducing the prison population in the face of the COVID 19 pandemic. Despite numerous calls by national and international bar associations and human rights NGOs that asked the government to treat all prisoners equally in the legislation, the bill excluded political prisoners while facilitating the release of violent mob leaders.
Thus, oppression is also a significant reason for overcrowded prisons and an overburdened judiciary. Therefore, the Turkish government must carry out meaningful reforms to ensure that all three branches of government observe fundamental rights and freedoms, address the problem of distrust of the judiciary and adopt a reasonable penal policy.
* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.