Barış SağlarEnglish

UNLAWFULNESS OF ONE-STYLE PRISON CLOTHING

By Barış Sağlar

 

In Turkey, with the KHKs (governmental decrees) with No. 695 and 696 issued on 24 December 2017 as part of the procedures applied under OHAL (State of Emergency), it is ordered that some of the accused persons who are detained in prisons will have to attend court hearings wearing orange and grey coloured jump suits (1). President Erdogan tried to justify this regulation by saying that a similar procedure is also practised in the US prison in Guantanamo. (2)

In the penal procedures of the modern world, the only justification for one-style clothing for detainees can be to, either prevent the inequality that might be caused by different financial situations of detainees, or to reduce the risk of prison escapes to a minimum. However, even though it is rigidly applied by the totalitarian regimes in the world (like China, Kazakhstan), most of the Western countries (like Germany and Sweden) have put an end this inhumane practice, because it benefits nothing. Although every state in the USA has got different penal procedures, the part of Guantanamo Base, which has been given as example by Erdogan, is one of the sources of shame where crimes had been committed against humanity. This place is a detention camp situated within an American naval base in Cuba and has been used after the US occupation of Afghanistan in the aftermath of the 9/11 attacks. The reason why this camp was established outside the borders of the USA was to exclude these detainees from the jurisdiction principles of the USA, in other words, to be able to conceal the human rights violations committed at the camp against the detainees. The video recordings of the tortures inflicted on the detainees at the camp have spread all around the world and caused strong reactions. (3)

With a common statement they declared, some NGOs in Turkey objected this one-style clothing forced upon the detainees in Turkish prisons. İnsan Hakları Derneği (The Human Rights Association), Türkiye İnsan Hakları Vakfı (Human Rights Foundation of Turkey), Çağdaş Hukukçular ve Özgürlükçü Hukukçular (The Contemporary Lawyers and Liberal Lawyers) have announced this: “Torture and other atrocious, inhumane, disgraceful and derogatory treatments or punishments are crimes. As well as being violation of the right to a fair trial, this will become a tool that will alleviate infliction of every kind of violence against the detainees. One-style clothing is a punishment, not only imposed on the detainee, but also imposed on the whole of the society. Despite the fact that the international law has not clearly recognised for detainees the freedom to choose the clothes they want to wear, still, impelling them to wear prison uniforms openly breaches their ever-existing fundamental human rights. The most prominent of these rights is the prohibition of ‘torture, and inhuman or degrading treatment or punishment’. The impact that is caused by the enforcement of one-style clothing in the inner world of a detainee, corresponds to the ‘derogatory penalty’  definition of the European Court of Human Rights. ‘For a punishment to be denogatory, it is adequate for the detained person to feel humiliated in his own eye, even though he may not be in the eye of others’.” (4)

Forcing the one-style clothing also on the detained persons who are not yet convicted, is another disaster. This is a complete defilement of the prominent “presumption of innocence” principle of the Law. That is, forcing a person, whose trial has not yet been concluded and he is not yet convicted for any crime, to wear a prison uniform, means declaring this person guilty in the first place and subjecting him to a very heavy trauma. Moreover, when a person who is denied of his liberty, is taken before court wearing a prison uniform, this will compromise the impartiality of the trial. This practice, which is against the international agreements, is also against the final cause of criminal procedures, because the objection of criminal adjudication is to rehabilitate and gain the accused person back to society. The one-style prison clothing, on the other hand, will never serve anything to this cause and it seems like an unseen punishment that is beyond the punishment decreed by the court. In other words, the person is actually subjected to an extra punishment of humiliation by staining his honour and stripping him off from distinctive personal qualities. From this respect, forcing the detainees to wear prison uniform is actually one type of torture. (5)

Former ECHR judge Rıza Türmen stated the following about this question:

The compulsory one-style clothing in prisons is a violation of the right to a fair trial. If they are talking about fair trials, they must know that both the offender and the not guilty equally benefit from fair trial. In this case, there is a violation of both the prohibition of derogatory treatment and the presumption of innocence. This is not right, this is against the international agreements.” (6)

As an important remark, in her book titled, “Dress Behind Bars: Prison Clothing as Criminality”, academic Juliet Ash, who has carried out significant studies on compulsory prison uniforms, asserts that regimes use clothing as punishment and by compelling prisoners to wear prison uniforms, they aim to eradicate the incarcerated one’s personality and self-confidence. Another striking aspect of the matter is introduced by John T. Molloy, who is known by his book written in 1974, in his research he conducted in 2014. He has scientifically proved that the detainees appear in court wearing prison uniforms are more likely found guilty by the jury. (7)

Turkey had witnessed similar treatments during the September 12 military coup, which is recalled today with shame and grief, and ineffaceable bitter memories have been frozen in the mind of the society. The following statements of Atilla Kaya, a Turkish MP from MHP (Nationalist Movement Party), who gave a press conference after the legislation of the compulsory one-style prison clothing had passed, shows the dimensions of this sore point and the real meaning of this practice: “When we first wore the prison uniforms, the psychological effect it created was immense. We were displaying a resistance, a rebellion in our own way. We had gained a certain level of resistance against the harsh procedures of prisons and the tortures during interrogations. But, whenever I wore that clothe, I had a feeling that as if the whole of my body has been kowtowed. This compulsory clothing re-introduced today is a return to the mal-treatments of September 12. What they really want to do by this is to bring all of the people who are detained in prisons and the whole of the society into submission. They have already put the people outside into straightjackets. Now, by applying the harshest examples of this one-style clothing in prisons, they aim to dehumanise the people and to alienate them to their own body, own thought, own faith. As a torturing method, they want to estrange you to yourself and to kneel you down. From over the prisons, they want to teach the society a lesson. This is a message saying, ‘Look at these people and draw a lesson from them. Buck up your ideas!’” (8)

Opinion of İbrahim Aydın, one of the socialist politicians who had opposed this practice after the September 12 military coup, is not much different than that of nationalist Atilla Kaya: “One-style clothing was enforced by Hitler’s Germany on political detainees and Jews in concentration camps. As the detainees of the case about Artvin Devrimci-Yol (a Turkish Marxist-Leninist activist group) tried in Erzurum –in which I was also tried– we have been combatting against this humiliating, depersonalising treatment for many years. In those days, they tormented the prisoners to wear the one-style prison clothing, which was made to a torturing device. They tried to break the resistance of those who did not wear those clothes by exposing them to heavy tortures and incarcerating them for months in very cold cells. We had been obliged to appear even in court, wearing only an undervest and underpants in a place like Erzurum where winter temperatures fall low below zero, until this treatment has ended a few years later. One-style prison clothing is a kind of punishment as all the criminal jurists would know. Especially, if this is applied on the detainees who are not convicted for any crime, it is complete unlawfulness. Again, as one-style prison clothing is a punishment, it is also a treatment that never complies with human honour and dignity.” (9)

Thirty years have elapsed over the days when the defendants had been forced to appear before court in their underwear as one of the shameful scenes of the September 12. At the point we arrived today, however, we very sadly witness that some feelings and thoughts have never changed; the periods of “state of emergency”, during which punishments and executing with extreme prejudice are seen as legitimate right, have/are never finished; and these periods are even seen as “a blessing” by some people. Does this piece of land have to really remain as a place where lives that are regarded as materially valueless by some, are easily sacrificed for the “personal interests” of some people, where honours and dignities are easily tarnished and unashamedly stomped over? Is it the fate of this land to have people, who were themselves once victims of human rights violations, start competing with the most brutal despots as soon as they gain power? Or, is this something to do with “being or not being a human”? I do not know… The only thing I certainly know is that if the parts of the society who have a common sense, will not raise their voice and express their opposition to this treatment in unison, I am afraid that this treatment will one day be imposed on everyone, including those who introduced it, and its grievous similarities to the September 12 will not stay limited to only this treatment…

 

(1) http://t24.com.tr/haber/iki-yeni-khk-yayimlandi-tutuklular-icin-tek-tip-kiyafet-uygulamasi-getirildi-2-bin-756-kisi-ihrac-edildi,519501

(2)http://www.cumhuriyet.com.tr/m/haber/siyaset/894171/Mehmet_Barlas_tan__Guantanamo_Hukuku__uyarisi__Savunanlar_artiyor_ama….html

(3)https://www.gazeteduvar.com.tr/yazarlar/2017/08/15/cezaevinde-tek-tip-elbise-uygulamasina-nicin-karsiyiz/

(4) http://m.bianet.org/bianet/insan-haklari/190672-mahpuslara-tek-tip-giysinin-amaci-psikolojik-cezalandirma

(5)https://www.gazeteduvar.com.tr/yazarlar/2017/08/15/cezaevinde-tek-tip-elbise-uygulamasina-nicin-karsiyiz/

(6)https://www.birgun.net/haber-detay/feto-bahanesiyle-tek-tiplestirecekler-173914.html

(7) http://www.bbc.com/turkce/haberler-dunya-40653666

(8) https://www.cnnturk.com/ajanda/tek-tip-kiyafet-uygulamasi-hangi-ulkelerde-uygulaniyor

(9)https://www.birgun.net/haber-detay/feto-bahanesiyle-tek-tiplestirecekler-173914.html

 

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