Lawyer Cengiz Yürekli from the Asrın Law Office spoke at the conference "Rights and Freedoms in Turkey: Law, Prisons and the Kurdish Issue" organized by the European Association of Lawyers for Democracy and World Human Rights (ELDH) and the Association for Democracy and International Law (MAF-DAD).

Lawyer Yürekli spoke about isolation and the situation in prisons over the Imrali experience. 

This is the text of his speech:

"The status of İmralı Prison and the legal regime imposed upon Mr. Öcalan necessitates in-depth discussion and new conceptualisation. The notions of “enemy criminal law” and the “state of exception”, which are used to describe the irregular and anomalous application of the law, in my eyes, do not correspond to the situation in İmralı Prison. For, in both instances, the discriminatory application or the suspension of law occurs based on a legal norm. Not so in the case of İmralı Prison and Mr. Öcalan. Theoretically speaking, both are subject to the same laws governing the rest of the country. In practice, however, these laws fail to get through to İmralı Prison. In this respect, we cannot actually define İmralı as a prison. Prisons are defined by laws which determine their architectural structure, the rights of prisoners, how the latter can exercise these rights, and under which circumstances these rights may be restricted. Not so in the case of İmralı Prison. The practices in this prison, though authorized by the state, do not meet the legal criteria to qualify as deprivation of liberty. In fact, they are closer to the crime of “false imprisonment” as specified in domestic penal law.

İmralı Prison was established in 1999, specifically for Mr. Öcalan. It is located on an island which was subsequently declared a restricted military area. Visits, correspondence, and all similar matters are subject to a regime and permission procedure that are not anchored in the legislation. For 10 years and 9 months, Öcalan was the only prisoner in İmralı. He was entitled to only one hour a day of access to fresh air and had only a single-channel radio. During this time, he had no other prisoners to contact, no television. Then, other convicts were transferred to İmralı Prison. Today, there are four of them in total. According to the data of the CPT, they are allowed to come together five hours a week, one hour a day. The rest of the time, that is, 23 hours a day on weekdays and the entire weekends, they spend completely alone in their cells.

Unfortunately, we cannot present any more detailed information on their current living conditions in the prison, since we are being prevented from seeing them and from monitoring the conditions of execution. We have no way of knowing which rights they enjoy and to what extent. There is no monitoring mechanism that monitors İmralı Prison and shares its findings with the public. According to national legislation, there is more than one institution tasked with such a function. However, there has not been a single visit or inspection in 24 years. Time and again, independent delegations have requested the authorities to be granted permission to visit the prison, but these requests were invariably denied. Therefore, the only and most recent data we have available is the CPT’s report on its visit to the prison in 2019. The last time we heard from our clients in İmralı Prison was during a phone call on 25 March 2021. For the 27 months that have passed since then, we have not been able to access any information on their situation.

For a better understanding of the conditions of detention in İmralı Prison, we may compare the rights defined in national legislation with the practice imposed on our clients. Mr. Veysi Aktaş, unlike our other clients, serves a life sentence in İmralı Prison. He has been held in the prison since March 2015. Convicts with his status have the right to receive visits from family members once a week and four times a month, plus the same number of phone calls. Roughly estimated, this means that they can see their families more than 50 times a year, and also contact them by telephone more than 50 times a year. These amounts are reduced to half when it comes to convicts serving an aggravated life sentence, which is the case for our three other clients in İmralı Prison. Accordingly, Veysi Aktaş should have had 400 family visits and as many phone calls with family members during his past eight years in İmralı. Our other clients should have been able to receive 200 visits and make just as many phone calls. However, during this period, Veysi Aktaş only received three physical visits, and was allowed to make a phone call only once, due to the pandemic. His contact with his family amounts to a total of three hours. In more than eight years, this is all the contact he has been allowed with the outside world. Although his lawyers and he himself persistently file their requests with the authorities, he has not been allowed to see a lawyer so far.

In line with the measures introduced in relation to the COVID-19 pandemic, which were continued for two years, prisoners across Turkey were granted double the amount of telephone rights. But even during these times of great anxiety and uncertainty, our clients in İmralı Prison were not granted this right. After a devastating earthquake hit Turkey and Syria on 6 February 2023, prisoners whose families were living in the earthquake zone were granted the right to contact them via phone by a decision of the Ministry of Internal Affairs. However, this right was not granted to the prisoners in İmralı Prison even though all of them had family members residing in the earthquake zone. As a result, our clients do not have the slightest information as to whether any of their family members got sick or injured or even lost their lives during the pandemic and earthquake. According to national legislation, prisoners are allowed to make phone calls with their families in case of serious illness of relatives of a certain degree. In case of the death of such a relative, the prisoner is allowed to participate in the funeral and condolence procedures. Veysi Aktaş was not even granted the right to use the telephone when his father passed away in November 2022. Unless the prison administration showed the courtesy to inform him, Aktaş does not even know about his father’s death. Furthermore, we and his family have no information about his health, living conditions and safety. We assume that our clients are being held in İmralı, that they are in good mental and physical condition, that they are not subjected to any ill-treatment, and that they are allowed to interact with each other. Or rather, we would like to believe and sincerely hope that this is the case.

Although we have requested their medical records before, they have not been given us. The privacy of the right to health does not prevent the records from being handed to us. If a person so wishes, these records must be given to his or her lawyers or guardians. Meanwhile, independent health committees are also denied access to the prison, so that we have no information about changes in our clients’ health status.

Our clients are subjected to disciplinary penalties that prevent family visits and ban lawyer visits. These penalties are the official reason cited for our clients’ incommunicado detention. However, there is no basis in the legislation to prevent a convict’s contact with a lawyer or to completely cut off his or her contact with the outside world. On the contrary, there are legal safeguards intended to prevent such a situation from occurring. We, as our clients’ authorized representatives, are not allowed to pursue the related proceedings on their behalf, and are not even given copies of the files and judgements. Our clients’ legal personality, their legal existence, is thus completely annihilated.

This state of affairs is not limited to İmralı but tends to spread throughout the country. Over time, arrangements were made to create a legal basis for the conditions prevailing in İmralı Prison since 1999. Öcalan therefore plays a decisive role in the shaping and implementation of the law on penal execution in Turkey. The arrangements made to prevent Öcalan from exercising his rights have started to encompass domestic law in its entirety, where they are widely applied today.

Following numerous unsuccessful attempts throughout the 90s, the F-type prison system could only be introduced in the wake of the political and social changes brought about by the Öcalan’s extradition to Turkey. The existence of a place like İmralı Prison, that is, a place of confinement for one single person targeted to completely isolate that individual from society, not only provided legal legitimacy for the operation of F-type prisons, but also had an impact on breaking the resistance of opposing social forces. The construction of F-type prisons meant the generalization of a system of relative isolation. Once this system had been consolidated, this was followed by the development of the so-called S and Y prison systems, which further aggravated the degree of social isolation.

The ECtHR ruled that Öcalan had not received a fair trial and that his right to defence had been violated and that he should therefore be retried. In the presence of such a judgement, domestic courts have no discretion to decide whether or not they accept that a reason for retrial exists. The ECtHR’s judgement is final and, as such, is not open to interpretation. Despite this, in 2006 the relevant courts refused to fulfil the requirements of the ECtHR judgement on the grounds that the procedural errors, i.e., the violations found by the ECtHR, did not affect the applicant’s sentence because the latter would have been the same even without them. Unfortunately, the Committee of Ministers approved this practice of the Turkish government and closed the file. In order to avoid any loophole, an article was added to the Code of Criminal Procedure to prevent Öcalan's retrial. This came with the implication that, according to Ministry of Justice data from that time, 221 people were exempted from their right to retrial. As the Council of Europe kept mounting pressure on Turkey, steps were taken to resolve this issue through a legal amendment in 2013, meanwhile excluding Öcalan. However, this compromise led the government to act arbitrarily in the following periods, at times almost blackmailing the Council. Turkey’s refusal to implement the ECtHR’s much-mentioned judgments on the cases of Osman Kavala and Selahattin Demirtaş is precisely the product and continuation of this complicit relationship.

The legal arrangements made specifically to prevent Mr. Öcalan’s contact with his lawyers, have over time evolved into a threat to the rights of all prisoners to see a lawyer. The regulation, which was introduced with the 2005 reforms to legalise the practice in İmralı, has been implemented in all prisons at the investigation and prosecution stages after 20 July 2016. The ECtHR contributed to this state of affairs with its 2014 judgment on Öcalan’s application, in which it ignored this issue. Now, the ECtHR is trying to overcome this by holding Turkey responsible of violations in individual cases.

Similarly, the aggravated life sentence, defined as imprisonment until death by the 2005 laws, was introduced with Öcalan in mind. However, many prisoners are currently being held in this status, deprived of the most basic rights. This status not only abolished conditional release, but also caused a drastic change in the conditions of penal execution. Prisoners were taken from the wards where they had stayed for years and put in solitary cells. Family visit rights, the number of people they are allowed to meet, telephone rights, outdoor times, and common activities were all reduced to an absolute minimum, subjecting prisoners to a tremendous degree of social isolation.

As these examples point out, the fact that violations were passed over in silence or internalised because they “only” concerned Öcalan has led to the result that people in Turkey, especially prisoners, today face an oppressive understanding of law. First, an exceptional practice was pursued in respect of Öcalan. It was only after the fact that legal processes were tailored to the person to correspond to the new reality and lend it a veneer of legitimacy. Since 1999, the course of criminal law regulations, especially regarding penal execution and trial, has been based on this fiction."