It has been 154 days since MHP Chair Devlet Bahçeli made a statement from the rostrum of the Parliament on the "right to hope" of Kurdish People's Leader Abdullah Öcalan. However, no steps have been taken so far regarding the "right to hope".

 

At his party's weekly group meeting on 22 October 2024, Bahçeli acknowledged the isolation of Abdullah Öcalan and called on Öcalan to "liquidate the organisation". Bahçeli demanded that Öcalan should speak at the DEM Party Group Meeting if the "condition" in question was fulfilled and that the way should be paved for legal regulations on the "right to hope".

 

Although 154 days have passed, no steps have been taken. In this process, Abdullah Öcalan made a historic call, "Call for Peace and Democratic Society", with the DEM Party İmralı Delegation on 27 February.

 

MORE THAN 4 THOUSAND PRISONERS

 

The "right to hope" that Bahçeli raised in the parliament has been on the agenda for many years. The "right to hope" is when a prisoner is sentenced to aggravated life imprisonment without the right to parole. The European Court of Human Rights (ECHR) ruled in 2014 that Abdullah Öcalan's "right to hope" was "violated". At its meeting held on 17-19 September 2024, the Committee of Ministers of the Council of Europe (CoE) discussed the ECtHR's violation decision and warned Turkey to take the necessary measures without delay, otherwise an interim decision would be prepared at its meeting in September 2025. However, despite the "violation" judgement and warnings, no steps have been taken yet.

 

In addition to Abdullah Öcalan, there are more than 4,000 prisoners sentenced to aggravated life imprisonment and life imprisonment in prisons. Many of these prisoners cannot benefit from the "right to hope". We have compiled the curiosities about the "right to hope".

 

What is the "right to hope"?

 

Aggravated life imprisonment sentences imposed as a result of the adaptation of the death sentences imposed according to the old Penal Code to the new legal regulations, and aggravated life imprisonment sentences imposed by the courts within the scope of 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 this 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, who will make this evaluation and by 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 ECtHR 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 ECtHR 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 that a prisoner has to wait before being pardoned is much longer than the recommended maximum period, and that in this sense, although the margin of appreciation available to the State is wide, it falls outside this 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 ECtHR'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.

 

After 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 ECtHR rule on Abdullah Öcalan's "right to hope"?

 

In a series of judgements after the 2000s, the ECtHR began to make explicit references to the 'right to hope' of convicts and developed an important chain of case law 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 ECtHR evaluated the manner of execution of this sentence, which was envisaged instead of the death penalty, in its judgement of March 2014 and the judgement was finalised in October 2014. Subsequently, the ECtHR 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 the 'right to hope' is a violation of Article 3 of the Convention. The ECtHR convicted Turkey again in 2014 with the Öcalan-2 Turkey judgement, 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 determine the 'right to hope' within the boundaries of positive law and stated that these principles could not be fulfilled in Turkish Law. The meaning of these 4 principles is that the possibility of release must be de jure (legally) and de facto (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 resocialisation of the prisoner... In its most abbreviated form, the prisoner should have the knowledge that he/she may be released one day and must not be held in isolation.

 

Apart from Öcalan, are there any violation judgements of the ECtHR on the "right to hope" and any examples of the implementation of these judgements?

 

Following the ECtHR's judgment in Vinter and others v. the United Kingdom, the High Court of England and Wales explicitly recognised 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 ECtHR judgement and closed the monitoring process. In the course of the supervision of the implementation of the Matiošaitis and others v. Lithuania judgement, Lithuania established a mechanism for reviewing the execution of life sentences and, where appropriate, commuting them. The Committee concluded that the mechanism established in this regard 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 recognises some of the existing systems in these countries as 'good examples' and considers that Turkey should benefit from them.

 

What should Turkey do following the ECtHR's judgement that Abdullah Öcalan's "right to hope" has been violated?

 

The ECtHR's Gurban group judgements, the steps taken by the Committee of Ministers in its supervision process for other countries and its assessments constitute a road map for what Turkey should do. Accordingly, the following basic principles should be taken into account when establishing a mechanism for the review of aggravated life imprisonment in accordance with Convention standards:

 

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

 

- In order to request a review of the sentence, the time spent in prison must not exceed 25 years,

 

- Significant changes and developments in the life of the convicted person should be taken into account in the assessment and it should be examined 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 assessment 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 convict must be properly informed about the process,

 

- In case of a rejection decision after the first review, the review should be continued at periodic intervals,

 

- 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 individual and structural judgements of the ECtHR are being implemented, claiming that it had translated the Öcalan-2 Turkey judgement, sent it to all judicial authorities and implemented the judgement. Despite the applications of Abdullah Öcalan's lawyers, no progress has been made in 7 years. In 2021 and onwards, civil society organisations made multiple notifications that Turkey has not implemented the decision, has taken no steps to amend its law, has not shared with civil society information on how many life sentences have been imposed since 2014, i.e. after the Öcalan-2 violation decision, has not applied 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 on 30 November-2 December, took up the 'right to hope' cases and made an urgent appeal to 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 of the Committee was to submit an action plan in October 2022. The government essentially said in diplomatic language that Turkey had 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 does not fulfil this resolution?

 

The Committee of Ministers may request action plans from Turkey on the implementation of the judgement. It can monitor the group of cases more closely by analysing them every 3 months. It can establish interim resolutions to increase the pressure on the state to implement the judgement. 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 jeopardised by a question of interpretation, it may refer the matter to the ECtHR 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 can invoke Article 46 (4) of the ECHR. If the Committee of Ministers considers that the state has refused to comply with a final judgement, it can refer the matter to the ECtHR to decide whether the state has fulfilled its obligation to implement the judgement. 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 judgement (although there are no sanctions available to the court). This mechanism can only be activated by a two-thirds majority vote of the Committee of Ministers and is therefore rarely applied.