Four international legal organizations, the Turkey Human Rights Litigation Support Project (TLSP), the European Association of Lawyers for Democracy and the World Human Rights (ELDH), the Association for Democracy and International Law e.V. (MAF-DAD), and the London Legal Group (LLG), have submitted a legal opinion to the Council of Europe’s Committee of Ministers concerning the Gurban case group.
The submission relates to the implementation of the European Court of Human Rights (ECtHR) rulings on the Gurban group, which includes Hayati Kaytan, Civan Boltan, Emin Gurban, and Abdullah Öcalan.
Rengin Ergül, a lawyer and member of the MAF-DAD, who contributed to the preparation of the legal notice, shared her assessment with ANF regarding Turkey’s problematic arguments and the counterarguments presented by the legal organizations.
International legal organizations such as the MAF-DAD, the ELDH, the TLSP, and the LLG submitted a legal notice to the Council of Europe’s Committee of Ministers last week. You were involved in preparing that submission. What were the main problems with the Action Plan Turkey presented to the Committee of Ministers?
Turkey’s latest action plan was no different from those it submitted in previous years. It repeated the same arguments. Turkey claims that a conditional release mechanism exists and that conditional release is regulated by law. This is true. In fact, in every submission we have made, we state that aggravated life imprisonment, particularly for crimes the state categorizes as “terror-related”, is effectively implemented as “until death.”
We have consistently underlined that this constitutes discrimination in the execution of sentences and violates the principle of equality. In this submission, Turkey once again claimed that there is a system of conditional release. However, by citing the exceptional provisions of the law, it emphasized that in certain cases aggravated life imprisonment is enforced until death.
Turkey again linked this to its usual arguments, asserting the existence of an exceptional regime. Civil society organizations have pointed this out in earlier notices as well. For instance, at a United Nations Committee Against Torture session, Turkey presented an ambiguous statistic: a representative from the Ministry of Justice claimed that those sentenced to aggravated life imprisonment made up 1.24 percent of the prison population.
Given the conditions of that time, this percentage corresponded to over 4,000 individuals. Not all of these sentences are enforced until death. However, since no specific data was provided on how many of them are subjected to such enforcement, we are forced to use that figure. This alone shows that the practice is not exceptional.
Moreover, if the government insists it is an exception, it should be able to back that up with numbers. Relying only on legal provisions and withholding the actual data indicates an unwillingness to be transparent.
Another important point is the government’s reference to its judicial strategy and reform process. But, as you know, there is no regulation within this strategy or reform process addressing aggravated life sentences or the right to hope. Even in the recent legislative amendment introduced under the pretense of improving conditions for seriously ill prisoners, the very first line of the relevant article excluded those serving aggravated life sentences.
This clearly reveals that the government does not apply the provisions of its own action plan domestically.
The Constitutional Court has not issued a ruling
In its Action Plan, the government once again emphasized the possibility of individual applications to the Constitutional Court, stated: “There is an individual application mechanism before the Constitutional Court, and it is an effective remedy. Those sentenced to aggravated life imprisonment may also apply through this channel.”
However, we know that the Constitutional Court has never issued a ruling on aggravated life imprisonment. It has not made a judgment regarding the right to hope either. Specifically, in the cases of Abdullah Öcalan, Emin Gurban, and others in the Gurban case group, the applications to the Constitutional Court are still pending. No decision has been made.
These, in essence, are the government’s repeated arguments: that there is a system of conditional release; that enforcement until death is an exception; that there is a judicial strategy and reform process in place; and that individual application to the Constitutional Court is available. What we see, however, is that the government continues to recycle the same points without taking any real steps, attempting instead to diplomatically manipulate the situation.
You submitted a legal notice as European legal organizations. Although the full content has not yet been made public, it will soon be accessible through the Committee of Ministers’ website. Could you tell us which key points were emphasized in the submission?
At this stage, we see the involvement of European institutions as particularly important. As I mentioned earlier, states often engage in practices that manipulate the Committee of Ministers and they have the capacity to do so. This is precisely why the involvement of civil society organizations is so critical. It provides an opportunity to challenge the validity of the arguments put forward by states. In this sense, the participation of all civil society actors is essential.
For many years, we had submitted joint notices with organizations from Turkey. This time, we submitted a notice together with European legal organizations. In that submission, we clearly stated, reiterating the jurisprudence of the ECtHR, that Turkey’s current legal regulations and practices are not in line with the Court’s criteria.
In particular, we highlighted the absence of a realistic prospect of release, that is, the legal and practical conditions required for such a possibility simply do not exist. The 25-year threshold is not respected in practice. Not only are aggravated life sentences implemented until death, but even those who are technically eligible for release, including life and aggravated life prisoners, are serving sentences that extend well beyond 25 years. This means that Turkey is also violating the doctrine established by the Court.
We also emphasized the lack of procedural safeguards. In Turkey, there is no system of periodic judicial review of life sentences, and prison conditions, particularly isolation and solitary confinement, are far from transparent. There is also no effective access to information. In short, we argued that Turkey is not in compliance with the rulings of the ECtHR, and that its domestic laws are fundamentally incompatible with the Court’s framework.
In addition, we included comparative examples from other European countries, outlining how their conditional release systems function.
In its Action Plan, Turkey argued that other countries also enforce aggravated life imprisonment and life sentences until death. However, those countries, members of the Council of Europe (CoE), have adapted their legislation to comply with the jurisprudence of the ECTHR.
Of course, as a human rights lawyer, I do not claim that any country has a perfect conditional release system. But we can confidently say that in these European states, there are no blanket bans on conditional release. For this reason, we presented these systems as comparative or positive examples in our submission on Turkey.
You mentioned that Turkey is manipulating the Committee of Ministers. How exactly is this manipulation taking place? What path should legal organizations follow in response?
This issue is not limited to the Committee of Ministers. In fact, the Committee of Ministers is not a particularly binding or forceful body in diplomatic terms. Yes, it oversees the implementation of judgments by the ECtHR, but in practice, we see that even in the most serious cases, such as the infringement procedure concerning Osman Kavala, no substantial action is taken against Turkey, despite it being the highest-level procedure with the strongest possible sanctions.
That is why it is essential to engage all mechanisms. We must activate all human rights instruments under the umbrella of the Council of Europe. Maintaining a watchful presence within the Committee of Ministers is also important, for both organizations based in Turkey and those based in Europe.
The Turkish state frequently attempts to associate organizations from Turkey with “terrorism.” In many cases, when we submit expert legal opinions authored by Turkish legal organizations, the government argues that the person is “linked to terrorism,” and therefore the report should not be considered valid or credible.
This is why the involvement of European legal organizations is crucial, not only as a third-party observer but also to counter such manipulation and to protect organizations within Turkey. European organizations must actively participate in the process to provide cover and legitimacy. However, the response must not be limited to the Committee of Ministers. We need to engage all relevant mechanisms within the CoE, including the Commissioner for Human Rights, the Venice Commission, and members of the Parliamentary Assembly. Every available mechanism must be used in a coordinated and strategic way.
The Grand National Assembly must abolish categorical bans in the law
It is also essential that the Turkish public engage with this issue domestically by restoring the functionality of the Grand National Assembly of Turkey (TBMM). Ultimately, this is where the core of the problem must be resolved. The Parliament must eliminate the categorical bans embedded in current legislation. If Turkey claims to pursue a democratic negotiation process, it must first comply with its existing laws and then align those laws with international conventions.
In this context, the responsibility of the public in Turkey is significant. For Kurds to defend their national leader, they do not need to be experts in enforcement law. At this stage of democratic negotiations, it is both legally legitimate and morally justified for Kurds to demand the freedom of Öcalan, who is conducting this process on the international stage. Moreover, this demand can and should be further elevated as the collective demand of the Kurdish people.
We provide the legal arguments from our side, and we will continue to do so wherever necessary. But artists, politicians, and every segment of society must embrace this demand. This is not only about Mr. Öcalan, it is also about the many Kurdish youth who are serving aggravated life sentences. If we are to speak genuinely about a democratic negotiation process, then the conditions under which these individuals are imprisoned must be improved, and steps must be taken swiftly to ensure their release and physical freedom.
Source: ANF News
