Reconsideration of the Privilege of Conjugal Visitation in Turkey’s Prisons

Türk Cezaevlerinde Uygulanan Mahrem Görüşme Ödülünün Yeniden Gözden Geçirilmesi

Özge ATIL

In the correctional facilities frame, conjugal visitation is a practice of awarding or permitting prisoners to maintain intimate and sexual relations with their spouses during their incarceration. There has been controversy regarding the benefits and value of conjugal visitation for a number of years and it continues to be so. Even though the doctrine is confused and inconsistent with the efficiency of conjugal visits, most of the studies suggest that benefits of such visits overweighs the adverse aspects.Turkey is one of the countries allowing conjugal visits to inmates as a reward for compliance with certain types behaviors numerated by the relevant law. Prisoners are required to satisfy certain requirements before they were allowed to have the privilege of the conjugal visitation, which could be extended or withdrawn from prisoners based on their behaviors and cooperation while their incarcerated.This study emphasizes the importance of legal and social dynamics of conjugal visits due to the risk of security implications of leaving inmates and their spouses alone. It argues that some changes should be done in order to ensure that conjugal meetings do not carry any risks for life security of both inmates and their spouses.

Privilege of Conjugal Visitation, Turkey, Prison, İnmate, Security, Risk, Advantage, Disadvantage

Mahkumların, mahkumiyetleri süresince, eşleriyle mahrem ve cinsel ilişkilerini sürdürmelerine izin ya da ödüllendirme yoluyla olanak sağlayan uygulamaya ıslah evleri çerçevesinde mahrem görüşme adı verilir. Mahrem görüşmenin faydaları ve önemi birçok yıldır tartışılmış ve hala tartışılmaktadır. Bu görüşmelerin verimliliğine ilişkin doktrinde bir görüş birliği sağlanamamış olmakla birlikte, çoğu çalışma mahrem görüşmelerin faydalarının olumsuz yönlerine ağır bastığını belirtmektedir.

Türkiye, ilgili mevzuatta belirtilen davranışlara uygun davranılması koşuluyla mahkumlara mahrem görüşme ödülü veren ülkeler arasındadır. Mahkumlar mahrem görüşme ödülüne hak kazanabilmek için belirli koşulları yerine getirmek zorundadır; öyle ki bu ödül, mahkumların davranış ve tutumlarına bağlı olarak devam ettirilebileceği gibi geri de alınabilir.Bu çalışma, mahkum ve eşlerini yalnız bırakmanın taşıdığı güvenlik riskleri dolayısıyla mahrem görüşmenin hukuki ve sosyal dinamiklerinin önemini vurgular. Bu bağlamda, hem mahkum hem de eşlerinin güvenliklerini riske atmayacak bir uygulama için ilgili mevzuatta çeşitli değişiklikler yapılmasını savunur.

Mahrem Görüşme Ödülü, Türkiye, Cezaevi, Mahkum, Güvenlik, Risk, Avantaj, Dezavantaj

1. Introduction

In 2015 March, a twenty-nine years old male inmate killed his same age wife by a knife during a conjugal visit in Sivas prison¹ . This heartbreaking and tragic news has led the writer to think about legal and social perspectives of conjugal visiting in Turkey’s prions. In the prison frame, conjugal visitation refers to the privilege of permitting prisoners to maintain marital stability and spouses’ shared time by providing an opportunity for intimate talk, privacy, and sexual relations with their spouses while they are incarcerated² .

Conjugal visiting in Turkey’s prisons has been allowed since 2013 by acceptance of the amendments of the Law on the Execution of Sentences and Security Measures³ . The desirability and value of conjugal visitation in Turkey’s prison mostly arises from the need for maintaining strong family ties and tradition, and preparing prisoners for healthy reintegration into society. Marital and family contacts in Turkey are undoubtly a significant part of the life; such contacts have potential rehabilitative therapy for any human beings, including inmates.

Conjugal visiting is permitted in many Latin American countries such as Brazil, Colombia, Mexico, Chile, El Salvador, Bolivia, Ecuador, Peru, Costa Rica, Guatemala, and Venezuela⁴ . The prominent reason behind the allowance of conjugal visiting in such a great amount of Latin American countries is the excessive significance of marital and family contacts in those cultures⁵ . Latin American countries, however, are not the only ones; countries that also allow conjugal visits include Russia, Denmark, Sweden, Poland, France, the Philippines, Canada, Japan, and some states of the United States of America (US)⁶ .

The ultimate goal of the article is to scrutinize Turkey’s conjugal visitation program with regards to legal and social dynamics of it due to the risk of security implications of leaving inmates and their spouses alone. The article proceeds first with an analysis of the current legal position of the concept of conjugal visitation in Turkey’s prisons. The analysis then turns to positive as well as negative characteristics of the system of conjugal visitation. Within these analyses, several changes are suggested to make conjugal visits in Turkey’s prisons healthier and more secure. Such suggestions are significant for the legal system of Turkey to reconsider and work on some deficiencies of the area. Being less studied subject, however, the writer is confronted with the problem of the lack of relevant literature and jurisprudential precedent on the field, especially with regards to Turkish literature and jurisprudence.

2. Current Legal Status of Conjugal Visitation in Turkey’s Prisons

Before mentioning the current legal status of conjugal visits in Turkey’s prisons, it is important to talk about the constitutional basis that led to the adoption of the concept of conjugal visitation in Turkey. It is very obvious that the Turkish Constitution puts a huge emphasizes on family values. This is because first, it defines family as the foundation of the Turkish society⁷ . Second, the Constitution protects family and marriage, stating, “the State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice”⁸ . Third, Article 20 of the Constitution rules, “everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated”⁹ . These all are the legal-constitutional principles have framed the development of the idea of conjugal visits in Turkey’s prisons.

In addition to the above-mentioned constitutional triggers, strong traditional family relationship and moral values of Turkish society put a responsibility on the government to save and keep such family and social intimacy among the nation. Furthermore, as a contracting party to the significant international covenants and documents such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Turkey needed a prison reform that allows conjugal visitation in order to provide better environment for the rights of inmates.

The 2013 amendments of the Law on the Execution of Sentences and Security Measures has allowed the implementation of conjugal visits in Turkey’s prisons¹⁰ . Article 51(3)(a) of the Law rules that “married prisoners¹¹ in closed prisons may be allowed to be in touch with their spouses in the institution or its annexes, from three hours to twenty-four hours, at least once every three months, without the close supervision of the staff of the penitentiary institution”¹² . The main purpose to be achieved with the award of inmates is to encourage them to become respectful to both human rights and legal and social principles by enabling them to socialize again¹³ .

The language of the Law is important in its recognition that a conjugal visit is a privilege rather than a right. Similarly, US states that allow conjugal visits within their prison systems agree that such visits are “not a right, but a privilege”. This recognition, however, can be argued on constitutional and international human rights grounds, alleging that incarcerated people are entitled to conjugal visitation rights. Such an argument may be based on prohibition against inhuman or degrading punishment¹⁴ , right to respect for private and family life¹⁵ , and protection of the family¹⁶ .

The Law on the Execution of Sentences and Security Measures itself, however, does not provide clear and adequate guiding principles in conjugal visitation process; rather, it only does recognize conjugal visitation as a privilege for married inmates by describing very limited conditions of the process such as frequency or place of visits. Turkish lawmakers solved this deficiency by specifically regulating the process of conjugal visitation in the By-Law on the Promotion of Convicted and Imprisonment People¹⁷ .

Article 11 of the By-Law states that “married convicted or imprisonment people may be rewarded with private and confidential meetings with their spouses in the areas of the penitentiary institution that reserved for such meetings, from three hours to twenty-four hours, at least once every three months, without the close supervision of the staff of the institution”¹⁸ . As it seems obvious, this provision is in complete harmony with Article 51(3)(a) of the Law on the Execution of Sentences and Security Measures.

Article 5(1)(c) of the By-Law rules that “while awarding convicted or imprisonment people, it should be considered that such rewards are not a right of inmates, but a privilege based on encouragement”¹⁹ . Well, who is the authority for awarding? Article 9 responds this question; “the Commission of Administration and Supervision is in charge of deciding the type, number, period, or the redemption of an award by filling out the relevant form”²⁰ .

Hence at this point, another question comes to mind: does the Commission decide to award inmates upon on their petitions? The answer is no. Article 10 clears up this point, ruling, “the Commission may on its own motion or on the motion of services working at the penitentiary institution decide to award inmates”²¹ . This provision, undoubtly, supports Article 5(1)(c)’s recognition of awards as privilege. The Commission may need to take a specific awarding decision for each time while awarding a conjugal visitation award²² , and inmate spouses on the same campus or institution must be awarded separately for both in order to benefit from this privilege²³ . Additionally, Article 10 states that “the Commission shall decide by a majority vote of the members of the Commission whether inmates are going to be awarded, and shall inform them properly with regards to the nature of the award”²⁴ .

One of the more obvious issues is how to select the appropriate inmates for conjugal visits. Inmate eligibility for participation in the program is somewhat more restricted. Article 8 of the By-Law sets up general principles for being awarded without making any distinction between the types of awards. Therefore, Article 8’ conditions that will be mentioned here apply to each type of award, including conjugal visitation. According to the Article, first of all, “an appropriate inmate should not be received any disciplinary punishment or his punishment should be revoked”²⁵ .

Second, the inmate is required to behave in certain manners, manners enumerated as follows: “(1) to be a good example with his attitudes and behaviors for other inmates, (2) showing personal improvement by participating in improvement activities continuously and effectively without a valid excuse, (3) showing outstanding success by participating in business, education and training activities continuously without a valid excuse, (4) giving maximum care to the cleanliness, order and protection of both the personal and common usage areas of the institution and the goods in these places, (5) showing personal improvement by participating in the social, cultural or sports activities continuously and effectively in and out of the institution, (6) being willing and showing a maximum effort to fulfill the internal services required to maintain the functioning of the institution, (7) showing improvement in getting rid of dependence on drugs, alcohol or nicotine by participating institutional training or treatment programs, and (8) revealing an unlawful action that may jeopardize the security and order of the institution²⁶ . The inmate should act in one or more than one of these manners in order to be awarded”²⁷ .

The third and last requirement concerns the selection of the appropriate inmate for conjugal visits is that “the inmate should not behave against the other types of behaviors regulated by general principles”²⁸ .

Besides these above-mentioned three conditions, The Commission of Administration and Supervision also takes into consideration the type of crime committed by inmates, conditional release date, personal characteristics and needs, physical and psychological status, educational background and profession of inmates while awarding them²⁹ . Furthermore, the physical structure of the institution, the number of institutional staff, financial and social facilities, and the current occupancy are also taken into consideration³⁰ .

Article 12 of the By-Law regulates general provisions regarding the process of conjugal visits³¹ . Accordingly, first, “upon arrival at the prison, all visitors who are Turkish citizens must present a pictured identity document including personal identification number; non-Turkish ones, however, must present both a passport or an identity document that can be used instead of the passport and a official document translated into Turkish, which proves that the visitor is married to a convicted or an imprisonment person”³² .

Second, Article 12 rules that “inmates include those convicted of sexual assault or domestic violence crimes, and in the cases seem risky for inmates or for their spouses to have conjugal visits, prior to conjugal meeting inmates and their spouses are required to individually or together (if necessary) meet with a psychosocial help service staff resided in the institution or other institutions”³³ . The Commission of Administration and Supervision must consider the evaluation report prepared as a result of the meeting while deciding a conjugal visitation³⁴ .

Typically, conjugal visits take place on the prison grounds, and visits occur seven days per week except religious and national holidays, and special occasions where the Ministry allows an open visit³⁵ .

A visit is allowed at least once every three months, from three hours to twenty-four hours³⁶ . The duration of the first visit is determined as three hours; three hours may be gradually increased to twenty-four hours, taking into consideration attitudes and behaviors of inmates, the physical structure of the institution, and the number of staff and the current occupancy status³⁷ . The date and time of the visit is determined starting from 09:00 to 17:00 by taking into consideration the physical structure of the institution, the number of staff and the current occupancy status, and the demands of inmates³⁸ .

There are security measures must be taken during the conjugal visit. All measures are taken to ensure that the confidentiality or privacy of the meeting is not breached³⁹ . First, a camera may be used to monitor the outside part of the entrance door of the meeting room⁴⁰ . Second, the meeting room and its annexes are sought by the staff in charge before and after each meeting⁴¹ . Third, it is prohibited to enter the meeting room except for the following situations: (1) after the end of the meeting period, (2) when the emergency call button is pressed, and (3) where an emergency intervention is required⁴² . Fourth and last, it is prohibited to keep any materials in the meeting room and its annexes other than the ones specified in the By-Law on the Goods and Materials to be Allowable in the Penitentiary Institutions published in the Official Gazette dated 17/6/2005 and numbered 25848⁴³ .

There are also health measures must be taken during the conjugal visit. First, the institution informs inmates and their spouses in writing about protective health measures and institutional cleaning conditions; informational materials such as posters and brochures prepared in this regard make available at places where inmates can easily access⁴⁴ . Second, the health personnel informs the spouse of an inmate known to have a blood or sexually transmitted disease such as hepatitis or HIV in writing⁴⁵ . Third, a written statement is issued that the visitor spouse will inform the inmate about whether he or she is carrying a disease of the kind mentioned in the previous sentence⁴⁶ . Fourth, the materials related to health, cleaning and personal use and the disposable ones, which are mentioned in the By-Law on the Goods and Materials to be Allowable in the Penitentiary Institutions, and birth control products that do not carry drugs can be purchased from the institution's canteen or can be obtained from the relevant institutions within the possibilities of the institution's administration⁴⁷ . Fifth and last, the inmate is in charge of ensuring the order and cleanliness of the meeting room and its annexes⁴⁸ .

There are some other points worth mentioning here. First, in the case that inmates or their spouses do not comply with the rules set forth in the By-Law on the Promotion of Convicted and Imprisonment People and other relevant law, conjugal meeting may be terminated immediately and shall be taken into consideration in subsequent award evaluations⁴⁹ . Second, in the case that circumstances arise that require the withdrawal of the award, the Commission of Administration and Supervision shall decide on the immediate withdrawal of the award that has not yet been implemented yet or is still being implemented and informs the interested parties⁵⁰ . Third and last, interested parties may complaint against the decision of the Commission of Administration and Supervision to the Judge of Execution of the Tribunal and may appeal the decision of the Judge of Execution of the Tribunal to the High Criminal Court⁵¹ .

To sum up, this chapter has analyzed the current legal position of the concept of conjugal visitation in Turkey’s prisons. The chapter aims to help the reader to better understand both the legal and social implementations of the Turkish system of conjugal visit; it has provided a legal overview of existing conjugal visitation program which will provide legal scholars, lawyers, and correctional officials with an updated information. It also serves a basis for the following chapters.