Effects of State of Emergency Law in Turkey On Prison Sentences Under Criminal Execution Laws

ADMD Avukatlık Bürosu
Efe Can Akıncı

I. Overview

With the Statutory Decree No.671 dated August 17, 2016 and the recent changes with Regulations No.29987 and No.29824 on Regulation Regarding an Amendment on Placement to Open Punishment Execution Facilities effecting execution of the Law No.5275 on Punishment Execution Law has introduced significant changes.

II. Statutory Decree No.671

Statutory Decree No.671 has rearranged the probation system and introduced a special execution system only for the crimes committed before July 1, 2016.

Accordingly the Statutory Decree sets forth two new amendments for such crimes committed before July 1, 2016:

• According to Article 32/a of the Decree time period of probation is increased from one (1) year to two (2) years.
• Article 32/b of the Decree reduces the time that needs to be served in jail before their probationary release to 1/2 of the sentence from 2/3 of the sentence.

III. Exceptions

Not every crime is within the scope of this Statutory Decree and the following crimes listed below excluded:

• Crimes of voluntary manslaughter (Turkish Criminal Code Article 81,82),
• Crimes of causing intentional injury to direct kinship relatives, siblings, or against people who are not able to defend themselves physically or mentally (Turkish Criminal Code Article 86/3);
• Aggravated crimes of intentional injury due to injuries caused (Turkish Criminal Code Article 87);
• Crimes against sexual inviolability (Turkish Criminal Code Article 102, 103, 104, 105)
• Crimes against privacy and private sphere of life (Turkish Criminal Code Article 132, 133, 134, 135, 136, 137, 138)
• Crimes of manufacturing and trading the cordial and narcotic drugs (Turkish Criminal Code Article 188)
• Crimes against the security of the State (Turkish Criminal Code Articles between 302-308);
• Crimes against the Constitution and its functions (Turkish Criminal Code Articles between 309-316);
• Crimes against National Defense (Turkish Criminal Code Articles between 317-325);
• Crimes against State Secrets and Espionage (Turkish Criminal Code Articles between 318-339);
• Crimes in scope of Anti-Terror Law No.3713

IV. Regulatory Amendments No. 29284 and No. 29987

Most remarkable change that is introduced to Regulation of Placement to Open Punishment Execution Facilities (open prisons) with the Amendment No.29987 is the reduction of the minimum requirement of serving the prison sentence in closed prisons.

Former and new version of the mentioned Article of the Regulation is shown below:

Regulation No.29824 brings a new and temporary layout by saying: According to Article 10, except the ones convicted of the exceptional crimes mentioned in the Provisional Clause number 6, for every crime that is committed before 01/07/2016 and requires a prison sentence for five (5) years or less in the closed prison, convicted shall be sent to an open prison in maximum three (3) days after a first observation.

In practical terms this legal arrangement sets forth that any individual who was sentenced for a jail time less than ten (10) years shall serve only a month (1) in closed prison and the ones sentenced for more than ten (10) years shall serve one tenth of their jail time in closed prison and could be placed to open prisons.

Public opinion view is that this new regulation aims to partially clear out the prisons in case of an overcapacity problem that might occur following imprisonment of the suspects who were arrested after the coup attempt of July 15, 2016.

Differences between open and closed prisons could be summarized below:

• Closed prisons are specifically designed to avoid prisoners to escape and indoor and outdoor security measures are taken. Most of such measures are not applied for open prisons.
• Open prisons are always available for visitations but closed prisons only allow visitations in certain days and for a specific period of time.
• Convicts in open prisons are required to work in daily outside jobs in places such as courthouse etc. but this opportunity is not offered to convicts in closed prison.
• As the architecture of an open prison is more spacious and open, it offers facilities such as a canteen, open yard, theatre hall etc. where such facilities are rarer at closed prisons.

V. Joint Review and Application

As the mentioned information is evaluated jointly it is seen that Statutory Decree No.671 makes important changes in probation and Amendments No.29284 and No.29987 at the Regulation makes changes in placement in penal institutions.

As mentioned above changes that come into force with the Statutory Decree No.671 only covers the crimes committed before July 1, 2016 however, the changes introduced with the Regulations No.29824 and No.29987 are permanent.

When both of these legal modifications are implemented into practice the calculations that will affect the penal system shall be as follows:

For the crimes committed before July 1, 2016:

• An individual who is convicted to four (4) years of jail time shall serve two (2) years in prison due to 1/2 calculation rate of the Statutory Decree No.671. This two (2) years of jail time shall in the scope of the extended probation period and the convict shall serve his/her sentence during the probation period without being out in prison.
• An individual who is convicted to seven (7) years of jail time for a crime committed before July 1, 2016 shall be subject to calculation rate of the of the Statutory Decree No.671 which 1/2, accordingly actual time that will be served shall be three (3) years six (6) months and two (2) days. Since it’s more than two (2) years, according to Law on Execution of Sentences and Security Measures convict shall not be able to benefit directly from probation. The time that needs to be served before probation is one (1) year six (6) months and two (2) days and according to Regulation on Placement to Open Prison, anyone who is convicted to jail time less than ten (10) years shall serve one (1) month in closed prison and the rest shall be served in an open prison.

For the crimes committed after July 1, 2016:

• Finally, Law on Execution No.5275 shall apply for the crimes committed “after” 01.07.2016 and as an example: An individual who is convicted to four (4) years of jail time for a crime committed after 01.07.2016 shall serve two (2) years four (4) months and one (1) day in prison since the Statutory Decree No.671 shall not be in force and accordingly jail time calculation rate will be 2/3 instead of 1/2. Also the probation time shall not be calculated in the scope of Statuary Decree No.671 and shall be one (1) year instead of two (2) years. Pursuant to this convict shall be able benefit from probation following a jail time of one (1) year eight (8) months and three (3) days. As Regulation on Placement to Open Prison states that any convicted who gets a jail time that is less than ten (10) years shall serve one (1) month in the closed prison and the rest in the open prison, convicted shall only serve a month and be placed at the open prison under the condition of being in good behavior.
• An individual who is convicted to seven (7) years of jail time for a crime committed before July 1, 2016 shall not be subject to calculation rate of the of the Statutory Decree No.671 so the calculation rate shall be 2/3, accordingly actual time that will be served shall be four (4) years eight (8) months and three (3) days. Since it’s more than two (2) years, according to Law on Execution of Sentences and Security Measures convict shall not be able to benefit directly from probation. The time that needs to be served before probation is three (3) years eight (8) months and three (3) days and according to Regulation on Placement to Open Prison, anyone who is convicted to jail time less than ten (10) years shall serve one (1) month in closed prison and the rest shall be served in an open prison.