REPORT ON VIOLATIONS OF HUMAN RIGHTS, INCIDENTS, and CURRENT SITUATION IN IMRALI PRISON IN 2019

I. INTRODUCTION

2019 is the year that the İmralı Isolation System’s reflections on law legal and political arena have become more visible in Turkey. As known, the law and political arena in Turkey, which were already antidemocratic and cause continuous dynamism of coup, have been under the rule of the Emergency Decree Laws (KHK) and the State of Emergency declared on 20 July 2016 and have been institutionalised and become permanent following incidents on 15 July 2016 and 20 July 2016 respectively coup attempt and the State of Emergency.

The most clear reflection of this period is that the Imrali Isolation System, which is implemented as a prototype, has been institutionalised and spread across the country. In fact, the Imrali isolation practices, which were developed outside the boundaries of law until 2016, have become normative practices for the whole country by adopting these practices in question as a law. It is equal to the period that the penal code, laws on criminal procedures and execution dated 2005, which were discussed also as “Öcalan Laws” and drew the borders of criminal sanctions of politics, were spread across the country.

Apart from the reflections on law, the isolation in the İmralı Prison’s relationship with various dialectics have become clearer in the politics in 2019. Mr Öcalan has made analyses, shared his ideas of solutions and methods from his perspective within the framework of the “İmralı Stance” in visits even under the conflict and tense atmosphere. There were responses, negative or positive, from different groups and figures to Mr Öcalan’s position. The responses in question demonstrated the relationship between the Isolation System of Imralı and war-peace, coup mechanics-democratization and chaos- solution dialectics in a more visible way. In this respect, Mr Öcalan stated that the isolation—both the general isolation and the period that continues for 4 years—on him is related to present wars and he has been resisting—in line with the principles of peace—to the isolation in spite of the difficulties.

As it is known, no news was received from Mr. Öcalan in 2017 and 2018. The date of last contact with Mr. Öcalan was on 11 September 2016 when concerns about the right to life increased and protests intensified. Similarly, there was an absolute isolation including ban on visits from lawyers and relatives; the communication right namely sending and/or receiving letters, telegraph, telephone in 2019. However, 2019 became also the year that people showed democratic sensitivity and raised their concerns about the problem.

Ms Leyla Güven, the MP from Peoples’ Democratic Party (HDP) and the co-chair of the Democratic Society Congress (DTK), made the following statement in the courtroom on 7 November 2018:

one of the cases that she faced. Ms Güven’s hunger strike action immediately spread into other prisons in Turkey. Furthermore, more people from different parts of the world

joined the hunger strike.

On 12 January 2019, Mr Mehmet Öcalan, the brother of Mr Öcalan, was allowed to

visit him. It was an important visit to get news from Mr Öcalan after about 30 months. However, the visit took place on Saturday and was short. It is a result of arbitrary policies

of the Government.

II. VISITS BY LAWYERS

In the visit, which took place on 2 May 2019, Mr Öcalan launched a democratic

declaration as a response to polarization and conflict in the society. There are seven

1. There is need for a comprehensive social consensus in this historical period.
2. There is a compelling need for a democratic negotiation method, which is free fromall types of polarization and conflict culture, for solutions of the problem.
3. We can solve the problems, particularly war, in Turkey and even in the region by means of soft power viz logic, politics and cultural power not physical form of violence tools.
4. We believe that the Syrian Democratic Forces (SDF) should avoid from the conflict culture for the solutions of problems in Syria; there should be an objective to solve these problems on the basis of local democracy perspective under the Constitutional guarantees. In this respect, Turkey’s sensitivities should be taken into consideration, too.
5. We fully respect for the resistance of our friends in and out of prisons yet would like to underline that they should not endanger their health which may result even in death. For us, their physical and mental health is more important than anything else. Moreover, we are of the opinion that the most meaningful approach is related to the mental and spiritual stance.
6. We are determined to deepen and improve the stance in İmralı in line with the stance announced by the Newroz Declaration in 2013.
7. For us, the main issue is to achieve peace with honor and the solution of democratic politics.

days.

“If Kurds are destroyed in Mesopotamia, there would be nothing for Turkishness in Anatolia. The existence and development of the Kurds means the development of the Turks. This is a historical

indicator not something we have invented. Everyone must understand this [fact]. Otherwise, there would be big losses. I made the statement there would be not the Turks without the Kurds and vice versa in the past, too. This is the case. I have told this many times and continue to tell it. The history is crystal clear in this respect.”

Mr Öcalan repeated his opinions, which he shared in the visit on 2 May, on the Northern Syria in almost all visits took place. He told that domestic and foreign policies of Turkey and Syria have become dependent on each other and intermingled. It is seen that Mr Öcalan’s approach to the issue, which is formulated as local democracy perspective under the constitutional guarantee, has become an option for solution not only in Syria but any other location suffering from chaos in the region. In this respect, Mr Öcalan stated that he can play a positive role for the solutions of all problems, including the Kurdish issue, in Syria by paying attention to the unity of Syria.

The visit dated 18 June 2019, as in the case of other visits in the past, created reactions and led to debates at a considerable level. Mr Öcalan underlined the understanding of democratic ally and the necessity to represent the third line as a response to adversary politics that is in the form of bipolar system. He pointed out the importance of making the third line visible and clear to respond to the need for democratic negotiations, which shall lead all political parties to be more democratic, and politics of solution.

With regard to the solution of general problem, Mr Öcalan highlights that democratic politics should be built and improved on the basis of three main pillars namely “Democratic consensus, free politics and universal law” and puts forth the term “Democratic Constitutional Ally” within the scope of universal law.

The fifth and the last lawyer visit took place in the İmralı Prison on 7 August 2019. Mr Öcalan drew attention to current armed conflict-war situation, warned of the risks and called for a joint solution. A trap of Turkish-Kurdish war was set; there would be no solution through armed conflict and war. The State must be reasonable and logical yet, currently, the State is far away from this position.

Mr Öcalan expressed his will, determination and power to solve the Kurdish issue by noting that taking no actions in a period-when the Kurdish issue has gained an international characteristic-will deepen the question. ‘I try to analyze the logic of state through extraordinary efforts. I try to open space for the Kurds. I will stop the armed conflict and the possibility of any armed conflict in a week. If I am supported [by the State], I can create the required power to solve the issue in a week. I told that I am ready for the solution. The State must take steps in line with requirement of being theState.”

Mr Öcalan expressed broad opinions on the Kurdish history, personality, and culture in these lawyer visits. He also stated that he has been making efforts to form the Kurdish mind and logic, which consider free life, free individuals and free society for 40 years despite there are shallow approaches adopted by groups such as classes, clans and tribes.

III. GENERAL APPLICATIONS FOR VISITS As it is explained above,

As a result of lawyers’ appeal against the decision dated 13.03.2019, the 1st Assize Court in Bursa lifted the ban on visits by lawyers on 17.04.2019. The court’s decision is justified as “

With regard to Mr Konar, Mr Yıldırım and Mr Aktaş, they have not been allowed to receive any visit by the lawyers since March 2015 or they were transferred to the İmralı Prison. This fact did

not change in 2019, either.

32 applications, which we submitted in 2019, for a visit by lawyers were refused on the ground of court decision until 19.04.2019. Moreover, no response was given to 66

applications for a visit by lawyers except for 5 visits took place on 02.05.2019, 22.05.2019, 12.06.2019, 18.06.2019, and 07.08.2019.

The prevention of Mr Öcalan and other convicts from receiving a visit by lawyers and relatives on the ground of unlawful and arbitrary disciplinary sentences, which began in 2018, has become systematic in 2019. The İmralı F Type High Security Prison Disciplinary Board imposed disciplinary sentences dated 14.09.2018 and nos. 201871-2- 3-4 on the convicts so that they were not allowed to receive visits by their relatives and lawyers. Similarly, it is observed that disciplinary sentences continued to be imposed on the clients in a routine way in 2019. These sentences were given on 02.01.2019 and nos. 2019/1-2-3-4, on 22.04.2019 and no. 2019/5, on 10.07.2019 and no. 2019/6, on 21.10.2019 and no. 2019/7.

These disciplinary sentences were notified to the lawyers after the appeal period was over. In the meantime, applications for visits were refused by the Chief Public Prosecutor’s Office in Bursa. Despite the continuous requests for access to the content of these disciplinary sentences, which have no concrete ground but are unlawful and arbitrary, they were not shared with the lawyers. With regard to the sentences on Ör Öcalan, they became immediately final and were executed by the Prison Administration. The reason for such a rapid process is that lawyers were not allowed to contact him and to provide a legal support, and Mr Öcalan did not appeal against the sentence. On the other hand, other convicts appealed against the decisions within the required period and later lawyers began following the procedures. As a result, the legal procedures still continue before the relevant bodies.

The beginning and end of these disciplinary sentences, which were unlawful, to ban visits by relatives for 3 months. There is a clear provision in the Law on Execution of Sentences No. 5275 that disciplinary sentences shall not be applied to a visit by a guardian. Yet, this provision was arbitrarily and clearly violated by the relevant authorities since the disciplinary sentences were used to ban such visit requests.

In 2019, the applications for a visit by relatives were accepted by the authorities on 12.01.2019 (Saturday and it was between Mr Abdullah Öcalan and his brother Mehmet Öcalan) and on 05.06.2019, and 12.08.2019. Yet, 42 applications were clearly refused by the authorities and no response was given to 4 applications. The visits dates 05.06.2019 and 12.08.2019 were allowed for religious festives. Mr Konar, Mr Yıldırım, and Mr Aktas were able to receive visits by their relatives for the first time since March 2015.

In summary, 5 lawyer visits and 3 family visits took place in 2019. On the other hand, 98 lawyer visits and 46 family visits including guardian were refused by the authorities.

III. RESTRICTION ON COMMUNICIATION AND PHONE CALL RIGHTS

As it is stated above, no communication channels, to receive send news, were allowed by the authorities from 11 September 2016 to 12 January 2019. In other words, therer was no communication between İmralı and the outside world. The family visit dated 12 January 2019 took place under extraordinary circumstances and was a short one. Although the 1st Assize Court in Bursa cancelled the disciplinary sentence on 17.04.2019-and the family visit was allowed by the authorities-no substantial progress was observed in regard to the right to communication and phone call. When the lawyers visited Mr Öcalan on 2 May 2019, they learned that only a few letters were given to Mr Öcalan in this period.

On 06.02.2019, the Constitutional Court held that there has been a violation of right to have a phone in the case of Mr Aktaş and Mr Konar in 2015. Another and similar application was submitted to the Constitutional Court on behalf of Mr Nasrullah Kuran while he was being held in the İmralı Prison. The Court held that there was a violation in the case Mr Kuran on 06.02.2019. Despite the Constitutional Court judgements, the ban on phone call is still in force. The application for Mr Öcalan has yet to be finalized by the Court. We applied to the Court of Execution in Bursa and requested that the convicts should be able to exercise their right to have a phone call on the basis ofthe Constitutional Court. However, the Court of Execution rejected our application in a manner contrary to the Constitutional Court.

IV. THE CPT’s POSITION

As it is known that the CPT is one of the most powerful bodies to monitor and control practices in the İmralı Prison from the international standards perspective. In this regard, the CPT has a very important role in deepening [worsening] or overcoming the İmralı Isolation System. The CPT published its reports on the visit-from 28 to 29 April 2016-on 20 March 2018. The raporu was published after 2 years for procedural issues. The timing of the report, irrespective of its content, cast a cloud on the absolute isolation and created a misperception about the problem. There have been substantial changes in legal and political structures in Turkey in this period that is to say from the last visit to the publication of the report. Similarly, antidemocratic policies were institutionalized in the country. There was an expectation about an ad hoc visit from the CPT in this period namely the period of no contact with the outside world and no forms of communication was allowed by the authorities. Such a visit would be in harmony with the relevant convention on torture. The CPT was expected to determined unlawful practices in the prison.

The CPT did not remain unresponsive to the increased concerns about Mr Öcalan and reactions to the problem in 2019. As a result, the Committee added the İmralı to its list of prisons to be visited as part of the visit from 6 to 17 May 2019. The Committee visited the İmralı Prison on 7 May 2019. No details about the visit has been shared with the publicopinion. In this respect, the CPT should publish its report on Turkey, where there is no legal certainty and predictability, with no further delay. Moreover, the CPT should closely follow- up events and developments in turkey. Apart from these visits, we prepare quarterly reports on the İmralı Prison practices and send them to the CPT. There are also some meetings between the legal team and the Committee.

V. PENDING CASES AND LEGAL INITIATIVES
A. Pending cases before the Constitutional Court and and other Local

Courts:

1- In accordance with Article 25 of the Law on Execution of Sentences No. 5275, it is possible and required that convicts and detainees should be referred to a general hospital providing that their health problems cannot be examined and/or treated in the medical facilities of prisons. However, Mr Öcalan and other convicts in the İmralı Prison are not allowed to benefit from this right. We applied to the Court of Execution in Bursa for the access to right to health and the ban on visits by lawyers on 12 July 2013. The application was rejected by the Court of Execution and we took it to the Constitutional Court. The case (application no. 2015/12433) is still pending.

2- After the lawyer visit on 27 July 2011, Mr Öcalan and other convicts were not allowed to receive visits by lawyers. Upon this ban, we applied to the Court of Execution in Bursa on 05.11.2012 and requested that legal rights should be reinstated and lawyer visits should be allowed. However, the Court of Execution in Bursa rejected the application after a long time. This case was taken to the Constitutional Court (application no. 2015/11221), as well. Yet, the Constitutional Court has not delivered its judgement.

3- a-Upon the declaration of the State of Emergency, the 1st Court of Execution in Bursa delivered a decision about the İmralı Prison on 21.07.2016. It should be noted that it was the first reflection of the State of Emergency. We appealed against the decision but the application was rejected by the Court. Then, we applied to the Constitutional Court (application no. 2016/80376) on 27 October 2016. The case is still pending before the Constitutional Court.

b-We submitted a complaint against the Public Prosecutor, who delivered the above- mentioned decision, to the Board of Judges and Public Prosecutors on 21.08.2017. The complaint states that the public prosecutor delivered the judgement in a manner contrary to law. The complaint was not processed by the Board yet we submitted the same application to the 1st Chamber of Board of Judges and Public Prosecutors on 11.10.2019.

4- Upon the finalization of the appeal against the decision about ban on visits, communication, and contact by the Court of Execution in Bursa on 02.03.2018, we applied to the Constitutional Court (application no. 2018/15703) on 06.06.2018. The case is still pending before the Constitutional Court.

5- Upon the finalization of the appeal against the decision about ban on visits, communication, and contact by the Court of Execution in Bursa on 06.09.2018, we applied to the Constitutional Court (application no. 2018/30824) on 06.06.2018. The case is still pending before the Constitutional Court.

6- Although we had provided all required legal documents, e.g. power of attorney, to the judicial proceedings—related to the İmralı Prison Disciplinary Board’s decision about ban on Mr Öcalan and other clients from receiving visits for 3 months—before the Court of Execution in Bursa, the lawyers were not involved in the case in a manner contrary to law. We submitted a complaint against the judges before the Chief Public Prosecutor’s Office in Bursa and the Board of Judges and Public Prosecutors on 17.12.2018.

7- We submitted an application to the Constitutional Court against the İmralı Prison Disciplinary Board’s decision—dated 14.09.2018—about ban on Mr Öcalan and other clients from receiving visits for 3 months. The case (Mr Öcalan 2019/736, Mr Aktaş 2019/1399, Mr Konar 2019/1938, and Mr Yıldırım 2019/1938) is still pending before theConstitutional Court.

9- The application (2016/21369) for Mr Öcalan’s right to have a phone call was submitted to the Constitutional Court on 19.06.2016 and is still pending before the Court.

10- We submitted an application to the Constitutional Court on 15 February 2016. The application is about the 1st Criminal Peace Judgeship in Van’s decision on the seizure of Mr Öcalan’s book based on his defence before the ECtHR. The case is still pending before the Constitutional Court. Although there is a similar judgement by the Constitutional Court on 25.06.2014, the local court ignored the Constitutional Court’s judgement.

11- We applied to the Higher Board of Judges and Public Prosecutors for the audio record of client-lawyer meetings from 01.06.2005 to 16.12.2009, seizing materials, and presence of a personnel in these meetings. Yet, the Higher Board of Judges and Public Prosecutors did not process the application. Upon this decision appealed (no. 2016/16150) against the decision before the Council of State. It is still pending before the Council.

12- The application, which was submitted to the Constitutional Court (no. 2019/7194, 2019/6991, and 2019/6948) is still pending before the Court. It was submitted to the Court on behalf of Mr Aktaş, Mr Konar and Mr Yıldırım. The application is about the İmralı Disciplinary Board’s decision dated 02.01.2019 to ban the family visits for 3 months.

13- The application, which was submitted to the Constitutional Court (no. 2019/31773) is still pending before the Court. It was submitted to the Court on behalf of Mr Aktaş, Mr Konar and Mr Yıldırım. The application is about the İmralı Disciplinary Board’s decision dated 10.07.2019 to ban the family visits for 3 months.

14- The application, which was submitted to the Constitutional Court on 25.12.2019, is still pending before the Court. The application is about the İmralı Disciplinary Board’s decision dated 21.10.2019 to ban the family visits for 3 months.

15- We applied to the Constitutional Court for the violation of Mr Aktaş’s right to receive and send letters, application no. 2015/14246. There is another application, no. 2106/6180, for Mr Yıldırım about the same issue. These two applications are still pending before the Constitutional Court.

B. Pending Cases before the European Court of Human Rights:

The European Court of Human Rights delivered several judgements on two main issues related to Mr Öcalan’s criminal proceedings and execution of the sentence. These judgements are about: the retrial and the Aggravated Life Sentence. However, the requirements have yet to be fulfilled at the domestic level. Despite these these two judgements, the ECtHR’s position either caused delay in some applications or paid attention to the Government’s submission only. Needless to state that the ECtHR’s position played a role in worsening the isolation.

It is expected that the ECtHR, which is one of the most powerful institution in the implementation and control of lex lata in line with the universal human rights standards, should act in accordance with its mission and the international human rights instruments. The pending cases before the ECtHR are listed below;

1- The ECtHR was indifferent to the continuous ban on lawyer visits from 27 July 2011 to 2 May 2019. Its passive position was one of the factors in such a long and continuous ban on lawyer visits. After 3 months and obtaining no results from the domestic remedies, we applied to the ECtHR, application no. 74751/11, in October 2011. Yet, the case is still pending in late 2019.

2- The ECtHR holds that there has been a violation of right to a fair trial in the criminal proceedings in 1999 after Mr Öcalan had been captured and sent to Turkey by an

international plot. Article 311 of the Law of Criminal Procedure, which regulates the retrial right, was introduced so as to prevent Mr Öcalan from benefiting from this provision. There were 221 more convicts who were negatively affected from the law in question. There was an amendment to the law on 11.04.2013 so that these people can benefit from the right. However, an exceptional provision was added to the law to prevent Mr Öcalan from benefiting from the legal right. The legal regulation, which was introduced to exclude Öcalan from this legal provision, violates the equality under the Constitution. For this reason, we applied to the local courts and the Constitutional Court. Yet, there was no result from these domestic remedies. We applied to the European Court of Human Rights, no. 34836/16. The case is still pending before the ECtHR.

3- The ECtHR’s judgement dated 18 March 2014 (application nos. 24069/03, 197/04, 6201/06 and 10464/07) holds that there has been a violation of Article 3 of the Convention for the aggravated life sentence and the execution of this sentence as long as he lives. Article 3 of the Convention is about the prohibition of torture and other inhuman or degrading treatment or punishment. Although there is no precise number of convicts who have been sentenced to aggravated life sentence, it is predicted that there are about 1000 people across the country. Upon the ECtHR judgement, the Government of Turkey should have re-examined the sentence and introduced legal changes in the law and improved the relevant legislation. However, the Government of Turkey has taken no steps until now. In accordance with the judgement, the aggravated life sentence should be abolished and removed from the legislation. There are still ongoing initiatives before the Committee of Ministers of Council of Europe that is in charge of monitoring the execution of judgements. The Committee of Ministers has begun monitoring the judgement in the case of Mr Öcalan. In this respect, the Committee of Ministers submitted written applications on 06.06.2016, 05.06.2017 and 25.06.2018 as well as had meetings with relevant authorities to follow-up the execution of the judgement. We requested that the Committee of Ministers should take some initiatives and determine whether Turkey has met the requirements of the ECtHR judgement.

4- For different applications from 2003, 2004, 2006, and 2007 were merged into one application and the judgement was delivered on 14 March 2014. The ECtHR declared some applications admissible and held that there were violations of articles yet it did not examine some other requests. Due to the limitations of the request for the case to be referred to the Grand Chamber in 3 months, we applied to the Constitutional Court for an interim measure to visit Mr Öcalan. However, the Constitutional Court’s rejected the application no. 2014/5264. Upon the Constitutional Court decision, we applied to the ECtHR.

5- On 04.12.2008, we applied to the Administrative Court in Athens for Greece’s unlawful actions and negligence in the international plot against Mr Öcalan in 1999. Mr Öcalan has been captured and sent to Turkey in 1999. Since the Administrative Court in Athens and the Court of Appeal rejected the case, we took the case to the ECtHR (application no 19/9259) on 01.02.2019.

6- Mr Aktaş’s case, which is about not allowing to get Mr Öcalan’s book entitled The Solution of Democratic Civilization, was taken to the ECtHR following the exhaustion of domestic remedies on 06.12.2019.

VII. CONCLUSION

– 2019 is the year that the İmralı Isolation System’s reflections on law and political arena have become clearer. In fact, on the one hand there is the polarization and conflict oriented politics and on the other hand there are democratic means andmethods of solution that can be achieved by creating the space for Mr Öcalan’s statements. Everyone has observed as well as experienced the incidents and developments occurred during the last 4 years or a period of intensified absolute isolation. The absolute isolation still continues and even gets deepened every day. On the other hand, Mr Öcalan’s power of solution and influence become clearer and more visible to everyone. Therefore, taking all developments and incidents occurred in 2019 into consideration demonstrates that the İmralı Isolation System has a direct impact on war and peace, the mechanics of coup and democratization, and chaos and solution dialectics. Accordingly, Mr Öcalan’s position, which he formulates as the “İmralı stance” and the “politics of life”, on peace with honor and democratic politics have become more noticeable in this period.

– Restriction and even ban on Mr Öcalan’s legal rights with no legal ground or court decision demonstrates the arbitrariness and unlawfulness in this respect. It is striking that such practices still going despite the statements by the Minister of Justice, who is the most powerful figure in the judicial system.

– It is known that the isolation on Mr Öcalan is in the form of absolute isolation. Therefore, in a period of deadlock observed at the domestic remedies, the CPT and the ECtHR’s passive position worsens the isolation. However, it is a fact that the isolation was considerably loosened or even lifted when the CPT and the ECtHR fulfilled their missions and played their roles.

– In the light of these facts, it should be understood well that the İmralı Isolation System is not limited to the visits by the lawyers or the relatives. On the contrary, it is a broader mechanism based on law—including criminal proceedings and execution regulations—and politics. The deepening of this system means a limitless arbitrariness in law and politics while an end to the isolation leads to opportunities for democratic solution. Undoubtedly, such opportunities require a strong legal struggle that is based on democratic methods and shall improve the democratic solution.

In this respect, Asrın Law Office maintains its legal struggle based on democratic methods against the overall İmralı Isolation and Torture System and against antidemocratic and unlawful practices observed particularly in this prison. We call on all people sensitive to the legal struggle based on democratic methods to make contributions to these efforts, and all national and international legal organizations to act in line with their responsibilities.

ASRIN LAW OFFICE