On April 14, after a week of parliamentary debate, the Turkish government passed a new “criminal enforcement” law that is expected to see up to 90,000 inmates released in order to relieve overcrowded prisons during the COVID-19 pandemic. However, an International Press Institute (IPI) review of the law shows that it excludes prisoners sentenced for terrorist-related crimes, which are often used to silence critics of the government including many journalists.

IPI had earlier called for journalists to be included in the list of those eligible for early release and later repeated the call in a joint statement with 23 other international press freedom groups. But the new law passed last week will instead see dozens of journalists who were arrested and jailed in recent years for expressing their views and exposing uncomfortable truths remain behind bars.

Disturbingly, defendants held in pre-trial detention, and therefore not convicted of any crime, are also not being considered for release. The instrument of pre-trial detention has been repeatedly abused in the aftermath of the 2016 failed coup in Turkey to jail critical journalists indefinitely.

Turkey is among the world’s leading jailers of journalists. According to IPI research, over half of the 90 journalists currently in prison in the country are held for terrorism offenses. The local journalists’ rights group Press in Arrest announced a similar number.

While the new law proposed exceptional measures to release and protect convicts over 65 years old, journalists do not qualify if they are being tried on terrorism-related offences. For instance, lawyers of Ahmet Altan, a 70-year-old journalist convicted of aiding a terrorist organization after a retrial, have appealed to the Supreme Court of Cassation to request his emergency release due to his being in a high-risk group for the coronavirus.

“The health and safety of all journalists are being willfully put at risk on the basis of often clearly political and fabricated charges”, Oliver Money-Kyrle, IPI Head of Europe Advocacy, said. “Why are they not being released immediately?”

Following the passage of the bill through parliament, the main opposition Republican People’s Party (CHP) appealed to the Constitutional Court for an annulment.

Remission in execution and release on parole to exclude journalists

On Monday, April 13, Justice Minister Abdülhamit Gül stated that a total of 17 convicts in five prisons were infected with the virus and that three of them had died.

The new legislation proposed amendments to 11 articles of law regulating mainly “the remission in execution” as well as “the release on parole” but excluding those convicted of specific crimes such as terrorism offences, deliberate killing and domestic violence against women.

In addition to measures specifically directed at over 65, the law will cut by half sentences issued to all inmates, except those charged or convicted of terrorism-related offences, drugs trafficking, domestic violence, sexual assault and murder. Those convicted of the excluded offenses will remain under existing rules, which requires inmates to serve three-quarters of their sentence before applying for release on probation.

Additionally, the new law enables all those with less than three years to serve to be released on parole for crimes committed before March 30. (For crimes committed after this date the law reverts to its previous position of granting parole with one year left to serve.) However, terrorism-related offences are again excluded from this change, which means that political prisoners such as journalists, academics, lawyers and human rights activists will not benefit.

Moreover, an early draft of the bill would have removed the automatic eligibility for parole for those convicted of petty crimes. Had this passed, everyone convicted of “insulting the President” would have been forced to serve a proportion of their sentences in jail. Since 2016, there has been a record increase in criminal lawsuits for “insulting the President”. According to local reports, in 2017 alone, there were 20,539 separate investigations for insulting the President including against hundreds of journalists.

“Crimes against the Intelligence Services” included at midnight session

Late on Sunday evening, crimes against the National Intelligence Service (MIT) were added to the list of offences to be excluded from the package, thereby immediately excluding the six journalists held since early March for “violation of the law on Intelligence Services”.

The six journalists are accused of revealing the identity of an intelligence agent after they reported on the funeral of an agent killed in Libya. They remain held as investigations are completed into what are clearly fabricated charges since the name of the agent was already in the public domain following a report in the Turkish parliament.

The journalists are currently in pretrial detention without an indictment and therefore are not eligible for release. This addition to the bill will also prevent the journalists from benefitting from early release if eventually convicted for crimes against MIT.

Release on parole based on prosecutor’s opinion

Under the new bill, release on parole will be granted based on two main criteria: “good behaviour” and “serving in an open prison”. Convicts who have a certain amount of jail time left to serve before parole can apply for a transfer to an open prison if they have shown good behaviour. This decision can be issued by an administrative and monitoring council through interviews generally conducted every six months.

For those who have been charged with the crimes excluded from the new regulation, such as terrorism-related crimes, as well as those with a sentence of more than ten years, the chief public prosecutor or a prosecutor that has been advised by the chief prosecutor must chair the administrative council. Once again, the public prosecutors, who have played a central role government’s judicial harassment of journalists, will have to decide on the good will and behaviour of journalists who fall under the excluded crimes and who seek release on parole.

Limit on newspaper distribution to prisons based on BİK criteria

The new law also restricts the distribution of newspapers in prisons to those that receive advertisement from the State Advertising Agency (BİK). This is significant because BİK has been increasingly implementing indefinite ad bans on critical newspapers such as BirGün and Evrensel which threatens newspapers’ survival due to risk of losing the state ad revenue permanently.,

This move imposes an unjustified restriction on prisoners’ access to information. It also underscores concerns over the government’s use of media regulatory mechanisms such as BİK to impose sanctions on critical media.

Other measures to tighten controls on social media on the way

An early draft of a new package bill on economic measures to address COVID-19 had included an effort to tighten controls on digital media by empowering the government to reduce the bandwidth of social media platforms that fail to respond swiftly to instructions to take down material within three days.

Although the clauses in the draft law were put on hold for the moment after a public outcry, it is expected that the government would submit the new regulations on social media platforms such as Twitter and YouTube at the next opportunity found. The draft law suggested that all social media platforms with over one million users daily must appoint a local representative who is responsible for implementing and communicating court orders to block access to accounts or content. If the platform fails or refuses to comply with the court order within 72 hours, the law grants authorities to reduce its bandwidth first by 50 percent and later by 95 percent. This would mean an extremely slow service for the Turkey-based users of the platforms, which might end up in mass loss of subscription and usage.

Even more problematic is that Turkey has proposed a measure that would keep all information and data on its users in the country – meaning within the authorities’ reach. Failing to comply with this new regulation could result in fines up to five million Turkish Liras.