Petition for Release from Detention Due to Coronavirus (COVID-19)

TO THE …. CRIMINAL CHAMBER OF THE COURT OF CASSATION

To Be Forwarded

TO THE … CRIMINAL CHAMBER OF THE ANKARA REGIONAL COURT OF APPEAL

FILE NO                            : ……. E. – ………. K. (… RCA … Crim. Ch.)

……. E. – …….… K. (………High Crim. Ct.)

DEFENDANT : ……………

DEFENCE COUNSEL :

DATE OF DETENTION : 11/05/2018

SUBJECT : Re: request that the decision ordering the continued detention of our client, issued pursuant to the decision of the … Criminal Chamber of the Ankara Regional Court of Appeal dated …… and numbered …………., be lifted and that, the conditions being met under the relevant articles of the Constitution, the CCP and the ECHR and in view of the changed circumstances (COVID-19), our client be tried WITHOUT DETENTION, or, should the court be of a contrary opinion, that our client be RELEASED either unconditionally or subject to any JUDICIAL CONTROL measures.

EXPLANATIONS :

By the decision of the ……. Criminal Chamber of the Ankara Regional Court of Appeal dated …………. and numbered ……….., our appeal filed on behalf of our client ….. was dismissed on the merits, and it was decided that our client should remain in detention, having regard to the nature and length of the sentence imposed on our client, the fact that the act attributed to the defendant is among the offences listed in Article 100/III of the CCP, and the resulting suspicion that the defendant may abscond or go into hiding.

The said decision is manifestly contrary to the general principles of criminal law, the legislation and conscience, and must be set aside, for the following reasons:

            1- THE RELEASE OF OUR CLIENT, WHO IS IN THE RISK GROUP, HAS BECOME IMPERATIVE DUE TO THE COVID-19 OUTBREAK DECLARED A PANDEMIC BY THE WORLD HEALTH ORGANIZATION.

The novel coronavirus outbreak, first observed in December 2019 and announced to the world by the People's Republic of China, is spreading across the globe. As of 22 March 2020, the number of people who have lost their lives due to the coronavirus had risen to 13,069, and the number of people in whom the virus had been detected worldwide had reached 308,547. As experts frequently point out, the coronavirus is spreading very rapidly, and its spread cannot be prevented despite the extraordinary measures developed. With the statement of the Minister of Health on 11.03.2020, it became known that the virus had also been detected in Turkey. As of 22.03.2020, it was announced that 1,236 cases had been detected in Turkey and that 30 of our citizens had lost their lives. Considering the rate at which the virus is spreading worldwide and the statements of the World Health Organization, it is anticipated that the virus may spread even faster in our country. Experts also state that, if the coronavirus infects sick and elderly people, the likelihood of it causing death is very high.

Meanwhile, in our country, all ministries are taking every extraordinary measure necessary within their areas of competence to prevent the spread of the virus:

– The Ministry of the Interior has determined exceptions to the curfew for persons aged over 65 and those with chronic illnesses. According to the statement made by the Ministry of the Interior, an addendum has been made to the circular on the curfew introduced for persons aged 65 and over and those with chronic illnesses.

– The circular signed by the Minister of Environment and Urbanisation, Murat Kurum, stated that the State continues to take measures with all its institutions in order to protect citizens from the coronavirus (COVID-19) outbreak and to prevent its spread.

– ÖSYM (the Measurement, Selection and Placement Centre) updated its 2020 examination calendar as part of the coronavirus measures and postponed the dates of 9 examinations.

– The Ministry of Justice increased the telephone call entitlement of convicts and detainees from once a week to twice a week.

– The Ministry of the Interior reported that 149,382 workplaces had temporarily suspended their activities under the Coronavirus Measures Circular.

-The Minister of Youth and Sports, Mehmet Muharrem Kasapoğlu, announced that the football, basketball, volleyball and handball leagues had been postponed due to the COVID-19 outbreak.

As we have endeavoured to explain above, the purpose of these extraordinary measures is to prevent the virus from spreading more rapidly in settings where large groups of people gather and human interaction is intense. Foremost among these are prisons. In Italy, riots broke out in prisons over concerns about the coronavirus, and 6 people lost their lives as a result of these riots. In the Ministry of Justice's 2020 budget report, the number of persons in prisons in Turkey was stated to be 282,703. Furthermore, according to the reports of the Human Rights Association (İHD), there are 649 sick detainees in prisons, 247 of whom are seriously ill, and 780 children living with their mothers. Considering the gravity of the situation and the hygiene conditions in prisons, it is clear that damage that is difficult to reverse will arise.

The relevant paragraphs of Article 56 of the Constitution, entitled “health services and protection of the environment”, read: “Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the natural environment, to protect the environmental health and to prevent environmental pollution.” Likewise, under Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to Member States on the European Prison Rules, all persons deprived of their liberty must be treated with due respect for their human rights, and the regime applied to sentenced prisoners must not aggravate the suffering inherent in imprisonment. Just as the State is under an obligation to provide the necessary medical treatment and medicines to any individual it deprives of liberty, whatever the offence, it must also protect and improve that person's physical and mental health; otherwise, its responsibility is engaged.

In addition to all this, our client is not an ordinary healthy detainee held in ………….. prison.

Our client, who is 52 years old, has chronic health problems such as high blood pressure, diabetes, vertigo, lumbar osteoarthritis and varicose veins, and is on continuous medication. In addition to all these problems, after being transferred to the detention facility, our client's gall bladder was removed owing to stress, and the likelihood of infection is very high. As your Court will appreciate, post-operative care and monitoring of our client does not appear possible under the conditions of a detention facility. For a person who has undergone open surgery to remain in an environment whose hygiene conditions are well known amounts to nothing less than a blow to the rights to life and health.

In addition, as a result of the examinations carried out following our client's complaints, a 6 mm nodule and fibrocysts were found in the lower lobe of the right lung of our client …………. These diagnoses indicate that our client has stage two COPD. Our client, who must undergo a CT scan every 3 months, also needs treatment that is not covered by state support. As the Court will appreciate, it is an indisputable fact that this treatment cannot be provided under detention facility conditions. Records relating to these matters are contained in the case file.

According to experts, risk (vulnerable) groups are in genuinely serious danger. This group includes people over 60, those with lung and heart disease, cancer patients, those receiving treatment that suppresses the immune system and patients with immunodeficiency.

Owing to COVID-19, which is highly likely and liable to break out in prisons in the future, our client, who is 52 years old, has chronic illnesses (diabetes, blood sugar, vertigo, blood pressure), suffers from COPD, has undergone open surgery and is in the recovery phase, must be released as soon as possible. Should our client, who is in a special situation, lose his life to COVID-19, which is at the top of the world's agenda, despite all these explanations, both the Turkish legal order and consciences will be deeply wounded. Emphasising that there is no remedy for this wound, we wish to point out that detention is a protective measure. Enforcement may also be carried out in the manner referred to in Article 109 of the CCP. Our client has been in prison for approximately 2 years; accordingly, our client, who is 52 years old, has chronic illnesses (diabetes, blood sugar, vertigo, blood pressure), suffers from COPD and has undergone open surgery, is in the risk group for COVID-19.

2-HE HAS HAD NO CONNECTION WITH THE ORGANISATION SINCE THE 17/25 DECEMBER PROCESS.

3-THE STATEMENTS GIVEN BY ………, THE ONLY CONCRETE EVIDENCE AGAINST OUR CLIENT, ARE FULLY CONSISTENT WITH OUR CLIENT'S STATEMENTS.

4-THE FALSE IDENTITY DOCUMENT FOUND ON OUR CLIENT IS NOT SUFFICIENT EVIDENCE OF A RISK OF ABSCONDING UNDER ARTICLE 100 OF THE CCP.

RELIEF SOUGHT : For the reasons set out and explained above, and in the light of matters to be taken into account by the court of its own motion, I respectfully request, on behalf of my client, that the detention order concerning the defendant, our client …………….., be lifted in view of the measures taken against COVID-19 and the contents of the case file, and that our client be released unconditionally, or, should your Court be of a contrary opinion, that our client be released on such bail as may be deemed appropriate or that judicial control measures be applied.

Related legislation: Code of Criminal Procedure No. 5271 (mevzuat.gov.tr)