CİSST Legal Advisor: Jurisdiction handed over to prison administrations

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  • 15:54 24 September 2021
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İSTANBUL - Evaluating the changes in the permit regulation, CİSST Legal Consultant Attorney Esra Erin stated that the authority to give permits were handed over to the prison administration at the initiative of the chief prosecutor.
 
The Ministry of Justice and the Ministry of Interior have amended the Regulation on the Casual Leaves to be Given to Convicts and Detainees due to the Death or Disease of their Relatives. The decision was published in the Official Gazette on September 21. According to the new regulation, in the event of the death of one of his relatives by blood or in-laws, including the second degree, or his spouse, with the recommendation of the prison chief and the approval of the Office of the Chief Public Prosecutor, it will be possible to attend the funeral for up to 2 days, excluding traveling time. The aforementioned permit was conditional on “the investigation or prosecution should not pose a risk in terms of safety and security”.
 
Evaluating the change in the system, Esra Erin, a member of the Civil Society Association Legal Advisor in the Penal Execution System (CISST), said that the authority to give permits was handed over to the prison administration at the initiative of the chief prosecutor.
 
THE PRISON ADMINISTRATION IS IN CHARGE
 
Noting that serious changes were made in the final version of the regulation, Erin stated that many issues that should be regulated by law were left to the initiative of the prison administration. Stating that the change was sudden and that it should be emphasized because of this, Erin noted that the opinions of civil society, professional and democratic mass organizations were also taken into account in the changes made in the regulations regarding prisons and prisoners. Erin stated that the opinion of any organization was not sought in this process. 
 
IT IS AGAINST THE LAW
 
Erin stated that the evaluation of the prisoners' permit applications by the prison administration before the prosecutor will lead to many problemssuch as "arbitrary decisions". Pointing out that the regulation is against national and international law, Erin said, “It is against the law because attending a funeral, which is a judicial practice, will encounter an administrative barrier. To change a judicial act into an administrational act is usurpation of duty in terms of administrational law. In other words, a prison administration cannot take the place of the judiciary and make a judicial decision or play a role in these processes."
 
REQUEST FOR CANCELLATION
 
Underlining that the usurpation of duty is a mistake, Erin said, “This situation, which is called usurpation of duty in administrative law, is legally null and void. Therefore, it is null and void for prison administrations to try to give direction on how the judicial authorities will act by expressing an opinion on an issue that does not fall under their jurisdiction. Therefore, the regulation in question should be cancelled."
 
Referring to the "right to attend a funeral" in the Geneva conventions, Erin said that this right is granted to prisoners even in times of war. “Prisoners can only be deprived of their right to freedom by being imprisoned. Apart from that, they are the people who continue to be the subject of all fundamental rights and freedoms. Therefore, the right to mourn is among the fundamental rights of the prisoners and this right cannot be restricted by regulation.
 
ARBITRARY DECISIONS
 
Erin reminded that with the "Law on the Amendment of the Law on the Execution of Penalties and Security Measures and Some Laws", which was implemented in January 2021, very wide powers were given to the prison administrations and said, "When the conditional release of the prisoners comes, the evaluation of whether the prisoner should be released or not is also up to the prison administrations. In this short period, the release of too many prisoners was prevented for arbitrary reasons. This revealed that the powers given to prison administrations were abused and arbitrary decisions were taken based on this authority."
 
Erin stated that a prisoner who has been imprisoned for 30 years was prevented from being released on grounds that she had read very few books in this period. Erin said, “A prisoner whose relative passed away may be prevented from attending the funeral due to the number of books he read. This regulation has paved the way to these arbitrary decisions of the prison administrations.” 
 
MA/ Mehmet Aslan

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