PKK leader Abdullah Öcalan, who has been held in isolation in İmralı Type F High Security Prison for more than 25 years, has not been heard from for 42 months. While family and lawyer visitation rights are prevented due to “disciplinary penalties”, communication rights such as telephone calls are also suspended. In addition to domestic legal remedies, attempts have also been made to international law and organizations in the past against the absolute isolation imposed on Abdullah Öcalan and the inability to hear from him. On different dates, applications have been made to the European Court of Human Rights (ECHR), the Committee of Ministers of the Council of Europe, the European Committee for the Prevention of Torture (CPT) and various bodies of the United Nations (UN).

 

The last of these applications was the notification made by civil society organizations to the Committee of Ministers of the Council of Europe. After the notification, the Committee of Ministers, which oversees the implementation of the ECHR's judgments, will discuss the “violation” of the ECHR's 2014 ruling on Abdullah Öcalan's sentence of aggravated life imprisonment without the right to conditional release (the right to hope) on September 17-19, after a 3-year hiatus.

 

With this development, we have compiled the scope of the “right to hope”, its place in Turkish legislation and the sanctions Turkey will face if it fails to take the necessary steps against the committee's decision in 8 questions.

 

What is the concept of the “right to hope” in Turkey, which has come to the fore in light of the current conditions of PKK leader Abdullah Öcalan, who is serving a life sentence without the right to conditional release?

 

Aggravated life imprisonment sentences imposed as a result of the adaptation of death sentences under the old Penal Code to the new legal regulations and aggravated life imprisonment sentences imposed by the courts under Law No. 3713 and Article 302 of Law No. 5237 are regulated in the legislation as life imprisonment, that is, until death. There are no exceptions to these sentences. However, the 'right to hope' is a right that comes to the fore to ensure that the prisoner is reunited with the society after a certain period of time in return for a life sentence. The person who has this right executes his/her sentence knowing that his/her situation will be reviewed after a certain period of execution, on what grounds this review will be made, and who will make this evaluation with which methods. In other words, the 'right to hope' ensures that the person maintains the hope of regaining his/her freedom by introducing a predictable form of execution.

 

Is there a time limit on the “right to hope”? 

 

There is no time limit on this issue. In its judgments, the ECHR states that the duration will be determined by the member state within the scope of its sovereignty. However, it also states that these periods should not be long enough to eliminate the 'right to hope' of the person. In other words, it can be stated that periods of 30-40-50 years that the state will introduce just to eliminate the form of execution until death may not be accepted. The ECHR mentions a period of 25 years in the Vinter v. the United Kingdom judgment. Here, the court decides that some special mechanisms should be provided between the contracting states and comparative and international law materials to guarantee a periodic review of the sentence no later than 25 years after its imposition and thereafter.

 

However, the summarized interpretation of the Court's judgments on this issue (Kafkaris v. Cyprus, Vinter v. the United Kingdom, etc.) is as follows It must be emphasized that it does not interfere with the criminal justice system approved by the Contracting State. The Convention does not, in this context, require a specific criminal justice mechanism, such as the right to conditional release. The form of such a review and the question of how much of the sentence must have been served before a review can take place are matters within the discretion of States. The procedures to be followed by Contracting States may also have a non-judicial character. However, according to the Court's case-law, it is clear that there must be a system to ensure that 'the possibility of release is assessed' and 'the margin of appreciation in question cannot be unlimited.' The Court examines whether there is any possibility in the Contracting State's own legal system to provide for lighter conditions of detention or early release.

 

In 2015, Hungary introduced new legislation providing for automatic review of life sentences as a way of complying with the Court's judgments. This legislation introduces a mandatory pardon procedure for the convicted person after 40 years of imprisonment. However, the Court noted that the 40 years a prisoner had to wait before being pardoned was much longer than the recommended maximum period, and that in this sense, although the margin of appreciation available to the State was wide, it fell outside that margin. Furthermore, the Court found that in Hungary a presidential pardon was not a means by which a life sentence could be reduced either de facto or de jure. Having regard to the length of time the applicants had to wait and the fact that the review mechanism lacked adequate procedural safeguards, the Court held that the new Hungarian legislation did not provide protection within the meaning of Article 3 of the Convention and that there had been a violation.

 

 Is the “right to hope” enshrined in Turkish legislation? What is its scope? 

 

Article 16/4 of the Anti-Terror Law No. 3713, Article 47 of the Turkish Penal Code No. 5237, Article 25 of the Law No. 5275 on the Execution of Sentences and Security Measures, Article 107/16 stipulate that the above-mentioned sentences are to be served until death without any break. These articles of law are the structural problems that led to the ECHR's decision of violation. The 'right to hope' in terms of these sentences is not included in Turkish law in any way. These are the regulations that violate the rights of Abdullah Öcalan and prisoners of the same nature. These regulations categorically include parole bans.  Apart from these, there are methods of release for different sentences, such as presidential pardons, but these are for sentences that are not of the same nature. In essence, the 'right to hope' does not need to be included in the law as a special regulation with a law title. Here, categorical parole bans are experienced as a direct violation of this right.

 

Once the categorical parole bans are removed from the law and the possibility of release is legally provided, it may be possible to discuss the actual implementation of the law.

 

 

*How did the ECHR rule on Abdullah Öcalan's “right to hope”?

 

In a series of judgments after the 2000s, the ECHR began to make explicit references to prisoners' 'right to hope' and developed an important chain of jurisprudence on the subject. After the abolition of the death penalty in the early 2000s, Abdullah Öcalan's sentence was commuted to 'aggravated life imprisonment'. The ECHR evaluated the manner of execution of this sentence, which was envisaged instead of the death penalty, in its March 2014 judgment, which became final in October 2014. Subsequently, the ECHR ruled on the same issue in Kaytan v. Turkey in September 2015, Gurban v. Turkey in December 2015 and Boltan v. Turkey in February 2019. 

 

In line with its jurisprudence on this issue, the Court has repeatedly ruled that keeping prisoners in prison until death without guaranteeing their 'right to hope' constitutes a violation of Article 3 of the Convention. The ECHR convicted Turkey again in 2014 with the Öcalan-2 Turkey judgment, ruling that 'imprisonment until death' is a violation of the prohibition of torture and therefore a violation of the 'right to hope'. It set out 4 principles that define the 'right to hope' within the boundaries of positive law and stated that they could not be met in Turkish Law. The meaning of these 4 principles is that the possibility of release should be de jure and de facto possible, the prisoner should have procedural guarantees in the review processes of the prison sentence, and the conditions of detention of the prisoner should be suitable for the resocialization of the prisoner... In its shortest form, the prisoner should have the knowledge that he/she may be released one day and should not be kept in isolation. 

 

Is there a violation decision of the ECHR on the “right to hope” other than Öcalan and is there an example of the implementation of this decision?

 

Following the ECHR's judgment in Vinter and others v. the United Kingdom, the High Court of England and Wales explicitly recognized the right of the Minister of Justice to release life sentence prisoners. The High Court also set out the scope, limits and conditions of this right. The Committee of Ministers considered this framework as the general measures required by the ECHR judgment and closed the monitoring process. During the monitoring of the implementation of the Matiošaitis and others v. Lithuania judgment, Lithuania established a mechanism for reviewing the execution of life sentences and, where appropriate, commuting them. The Committee concluded that the mechanism and the conditions for applying to the mechanism were in line with the standards developed by the Court and closed the monitoring process.

 

The Committee of Ministers recognizes some of the existing systems in these countries as 'good examples' and considers that Turkey should benefit from them.

 

How should Turkey proceed after the ECHR ruling that Abdullah Öcalan's “right to hope” has been violated?

 

The ECHR's Gurban group judgments, the steps taken by the Committee of Ministers in the monitoring process for other countries and the evaluations made by it constitute a roadmap for what Turkey should do. Accordingly, the following basic principles should be taken into account when establishing a mechanism to review aggravated life imprisonment in accordance with the Convention standards:

 

- After review, the mechanism should be able to decide whether to commute, reduce, abolish or conditionally release the sentence subject to the request,

 

- To be eligible for a sentence review, the time spent in prison must not exceed 25 years,

 

- Considerable changes and developments in the life of the convicted person should be taken into account in the assessment and whether there is a legitimate basis for the continuation of the execution, which should be for rehabilitation purposes, as of the date of the assessment,

 

- This evaluation should be objective and based on predetermined rules,

 

- Regulations on the principles to be taken into account in the assessment should be sufficiently clear and specific,

 

- The prisoner should be afforded procedural safeguards,

 

- The prisoner should be properly informed about the process,

 

- In case of rejection after the first review, the review should be continued periodically,

 

- Judicial review of the decision of the mechanism should be possible and the convicted person should be given access to this remedy.

 

 Why is Turkey not implementing this decision? What legal basis does it provide for not implementing it?

 

In 2015, Turkey submitted an action plan to the Committee of Ministers of the Council of Europe, which periodically monitors whether the judgments of the ECHR are being implemented on an individual and structural level, claiming that it had translated the Öcalan-2 Turkey judgment and sent it to all judicial authorities and that it had implemented the judgment. Despite the applications of Abdullah Öcalan's lawyers, no progress has been made in 7 years. In 2021 and onwards, civil society organizations made multiple notifications that Turkey has not implemented the verdict, has not taken any steps to amend its law, has not shared with civil society information on how many life sentences have been imposed since 2014, after the Öcalan-2 violation verdict, has not implemented the principle of equality in execution under the Anti-Terror Law, and finally has maintained severe isolation conditions in İmralı.

 

Turkey offered manipulative answers and an action plan, but the Committee of Ministers, at its 1419th meeting, November 30-December 2, took up the 'right to hope' cases and urgently called on Turkey to bring existing legislation into line with the resolutions without further delay. The Committee requested information on the number of prisoners serving aggravated life sentences and decided that Turkey should submit an action plan to the Committee no later than September 2022 on the progress adopted on general measures. Turkey's response to these concrete and explicit requests by the Committee was to submit an action plan in October 2022. The government has essentially said diplomatically that Turkey has no plans to make any changes in this regard. Finally, Turkey submitted an action plan in July 2024, again with similar arguments.

 

What sanctions will the Committee of Ministers of the Council of Europe impose on Turkey if it fails to comply with the judgment?

 

The Committee of Ministers may request action plans from Turkey to ensure that the judgment is implemented. It can monitor the group of cases more closely by reviewing them on a quarterly basis. It can establish interim resolutions to increase the pressure on the state to implement the decision. Interim decisions are procedurally more effective than general decisions taken after regular meetings. Under Article 46 (3) of the ECHR, if the Committee of Ministers considers that the supervision of the implementation of a judgment is jeopardized by a question of interpretation, it may refer the matter to the ECHR for a decision on interpretation. This mechanism requires a two-thirds majority vote of the Committee of Ministers to operate and is therefore rarely used.

 

In exceptional cases, they can invoke Article 46 (4) of the ECHR to initiate infringement proceedings, the Committee of Ministers If the Committee of Ministers considers that the state has refused to comply with a final judgment, it can refer the matter to the ECtHR to decide whether the state has fulfilled its obligation to implement the judgment. This mechanism was introduced in 2010 (with the entry into force of Protocol No. 14 to the ECHR) as a new means of enforcing the judgment (although there are no sanctions available to the court). This mechanism can only be triggered by a two-thirds majority vote of the Committee of Ministers and is therefore rarely applied.

 

MA / İbrahim Irmak