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Demet Gümüş holds a master’s degree in Human Rights and Multi-level Governance from the University of Padova. This article is an excerpt from her master’s thesis discussed in March 2020 under the supervision of Prof. Sara Pennicino.
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Incarceration by its very nature causes distress to a considerable degree. While the extent of suffering may vary across different country settings, depending mostly upon the prison culture, particular groups of prisoners need special protection distinct from what is granted for the larger prison population. As expounded in the UN Handbook on Prisoners with Special Needs, transgender persons suffer particular vulnerabilities in the prison setting. Differently from lesbian, gay, bisexual (LGB) persons, transgender prisoners could be easily recognisable due to their hyper-visibility, which is why particular measures ought to be employed in order to eliminate discriminatory circumstances on the grounds of gender identity. More precisely, the exigence for a differential protective regime derives from the fact that this group of prisoners is subject to marginalisation accompanied by daily humiliation, sexual abuses, solitary confinement, denial of trans-concerning health services, and deprivation of educational and vocational activities. In particular, solitary confinement goes beyond the usual suffering inherent to incarceration and emerges as an additional punishment giving rise to increased psychological stress as a consequence of lengthy isolation. Not only do such practices in question depict the transgender community as problematic rather than victim but also effectively incentivise transphobia in the prison setting.
Similar concerns, often even graver, have been voiced by transgender inmates in Turkey where genitalia-based placement is applied. Many prisoners who self-identify as female are housed in “protective” custody in all-male prisons and are not allowed to benefit from rehabilitative activities. Many have complained about daily humiliation, strip searches and sexual abuses by law enforcement officials. Moreover, some prisoners have been denied access to hormonal treatment. Likewise, their demands for gender-affirming surgery have faced bureaucratic obstacles, frustrating their transfer to an all-female penitentiary centre. These obstacles, besides debarring them from services enjoyed by their cisgender fellow inmates, reached an alarming point when trans woman Buse resorted to self-castration last year. A number of trans inmates have gone on hunger strike to make their voices heard beyond the prison walls. Civil society organisations have expressed their concern about administrative barriers for continuous monitoring activities such as regular visits to facilities where trans inmates are imprisoned. In a similar vein, in his report, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pronounced an evident decrease of respect for the exercise of fundamental human rights and freedoms in Turkey’s prisons notably in the aftermath of the attempted military coup in 2016.
The fundamental human rights of persons deprived of liberty have long been codified in several international conventions, which constitute binding obligations for the States that have signed and ratified them. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the absolute prohibition of torture and other forms of ill-treatment. It is noteworthy that the definition of torture as pronounced in the Convention is not limited to pain or suffering physically inflicted. Rather, mental suffering has also been emphasised. Thus, states are obliged to prevent any case of torture in places of imprisonment and maintain humane treatment of prisoners and/or detainees. Article 1 of the Convention also makes a particular reference to the employment of a discriminatory cause leading to torture and other forms of ill-treatment. Besides reminding national authorities of their obligations to adopt legislative and judicial measures to fully prevent torture in detention, the Convention allows no exception for persons acting in an official capacity, which is a common practice in Turkey’s prison culture. Likewise, the International Covenant on Civil and Political Rights (ICCPR) sets forth provisions regarding the prohibition of torture or cruel, inhuman or degrading treatment or punishment as well as humane treatment of persons deprived of liberty in line with respect and inherent dignity of human beings. The Convention guarantees equality before the law by prohibiting discrimination “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Furthermore, the International Covenant on Economic, Social and Cultural Rights (ICESCR) prohibits disproportionate differential treatment in access to health services by referring to discriminatory grounds such as sexual orientation, singling out gender identity. Besides international treaties, the UN Mandela Rules encourages States to adopt minimum common standards for correctional facilities since varying factors based on geographical, social, economic and legal aspects may hinder the realisation of a unified prison regime. Authorities are invited to address the individual needs of prisoners in vulnerability when employing standards consonant to the scope of fundamental human rights. Similarly, the Yogyakarta Principles pays particular attention to the universal enjoyment of rights by persons of all sexual orientations and gender identities. This instrument invites national authorities to take the necessary protective measures for transgender offenders and abandon discriminatory in-prison practices against them.
At the regional level, the European Convention on Human Rights (ECHR), to which Turkey is party, prohibits torture and other forms of ill-treatment by Article 3. The European Court of Human Rights (ECtHR) has delivered several judgments regarding the violation of Article 3. To exemplify, the Court established in X v. Turkey that lengthy isolation of a homosexual detainee breached Article 3 as it was disproportionate, arbitrary and targeting the applicant’s sexual orientation. Article 8, on the other hand, safeguards the right to respect for private and family life. In Y.Y. v. Turkey, The Court, for instance, found that the refusal to authorise the gender reassignment surgery constitutes an interference with the applicant’s right to private life, which needs to be seen in connection with the individual’s right to personal development and autonomy, including the ability to make decisions concerning one’s body. Article 14 of the ECHR prohibits discrimination on any ground such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Court examines it in conjunction with a substantive right pronounced in the Convention. In Belyayev and Others v. Ukraine, the Court found a violation by stating that the difference in treatment must seek a legitimate and proportionate aim.
Domestically, the fundamental rights of trans inmates are safeguarded by the Constitution of Turkey. Article 17 of the Constitution protects corporeal integrity against torture or maltreatment, while Article 10 ensures equality before the law. Respect for private and family life is secured by Article 20. Furthermore, access to gender reassignment surgery is regulated under Article 40 of the Turkish Civil Code. As for persons deprived of liberty, the Law on the Execution of Penalties and Security Measures sets forth provisions to ensure security and discipline in prisons in line with human rights standards with specific reference to human dignity.
The normative framework has been gradually evolving to safeguard the fundamental human rights of persons deprived of liberty. However, the growing body of violations reported by transgender prisoners in Turkey proves, once again, the utmost urgency for trans-specific standards and norms in prisons. The absence of particular mention of gender identity as a discriminatory ground and the scarcity of relevant ECtHR case-law clearly is a barrier to seeking redress for victims in Turkey. Nevertheless, one might inevitably ask: Are gaps in international law and lack of precedent cases the sole obstacle to human rights litigation? Human rights litigation once executed strategically reaches way beyond individual compensation and leads to more significant outcomes, including but not limited to revised national legislation, policies and even social change. However, an in-depth analysis of domestic circumstances conducted by this study reveals alarming facts. Firstly, Turkey’s record of implementing ECtHR judgments inescapably deters individual victims and civil society organisations from bringing new cases before the Court. As of January 2020, Turkey is yet to fully address 63% of leading judgments from the last 10 years, which require large-scale changes such as amending existing laws and revising policies. Secondly, emerging political developments following the coup attempt in 2016 resulted in a nation-wide dismissal of a sheer number of judges and prosecutors allegedly affiliating with coup plotters. The Constitutional Court barely ruled out a finding of violation emphasising the indispensability of ‘order and security in prisons’ in its judgments for applications dating back to the aftermath of the attempted coup. Moreover, monitoring visits to detention centres were made unavailable to NGOs, thus rendering evidence-gathering a remote possibility.
In a similar vein, the constitutional referendum in 2017 brought along drastic changes in the composition of the Council of Judges and Prosecutors (HSK) and the Constitutional Court, the highest legal authority of the state. Seven out of thirteen HSK members are currently presidential appointees whereas all 15 members of the Constitutional Court members are appointed by President Erdogan and the Parliament where the ruling party and their political allies constitute a majority. Therefore, the intertwinement of the executive branch and judiciary seems to be jeopardising judicial independence based on the radical switch to a single-man regime.
Additionally, bureaucratic barriers concerning info-gathering NGO operations harm litigation processes, particularly when most prisoners do not access lawyers on a regular basis, and the mere communication is held via letters or prison visits by such organisations. NGO/CSOs receive either zero or late responses to their information acquirement applications regarding statistical data on trans inmates. Likewise, monitoring visits face bureaucratic obstacles imposed by authorities. The correspondence project initiated by a CSO, though yielding positive outcomes, faces challenges such as late submissions, lost letters or letters being overly censored by prison authorities who consider some letters too revealing about prison conditions or threatening for the correctional officers. Besides infringing the right to communication, such practice clearly jeopardises the means of bridging transgender inmates and CSOs, which mostly are their mere recipients.
Furthermore, advocacy-related operations often face unpleasant situations. When transferred, the inmate may no longer access a lawyer in the destination city as there are only a few lawyers who are predominantly familiar with LGBTI+ concerns arising in detention facilities and mostly based in metropolitan cities in Turkey. Also, the presence of inmates with financial difficulties and weak family bonds renders CSOs the sole burden bearers, which adversely affects the efficiency and readiness of legal assistance provided. Lastly, the Ombudsperson Institution and the Institute of Equality and Human Rights (IHRE) are not adequately responsive to on-going violations. The Ombudsperson Institution does not seem to constitute persuasive value due to potentially partial appointment, lack of power of sanction, and very little focus on places of imprisonment facilities. IHRE, the national preventive mechanism, has also proved not to be the best alternative to courts in view of legal deficiencies imperilling proper functioning of the institution and its political ties causing a biased approach.
International human rights law has undoubtedly made remarkable progress in both the adoption of a sheer number of instruments to bring human rights into the criminal justice system and in pushing for practical changes through positive judgments. Nevertheless, challenges faced by prisoners with special needs, such as trans inmates, await to be addressed thoroughly in many countries, including Turkey. Therefore, this research has sought to delve into the avenues for protecting the fundamental human rights of transgender persons in the Turkish criminal justice system. Despite the presence of applicable legal frameworks protecting prisoners in general, findings show that the failure to employ the long-needed diligence to gender identity as a discriminatory clause in most international human rights instruments is a source of many primal difficulties and struggles. Also, the current case-law of the European Court of Human Rights (ECtHR) has yet to set the pace for individual applications to be lodged by victims or trans-NGOs in Turkey. In addition to supranational challenges, Turkey has an unsatisfactory record of respecting the rule of law, which intensified in the aftermath of the coup attempt in 2016, which negatively affected any info-gathering channels in the criminal justice system such as detention monitoring visits performed by NGOs. Likewise, the constitutional referendum of 2017 caused a judicial shift which eventually led to a reluctance to guarantee impartial proceedings concerning persons in detention. Lastly, national human rights institutions such as the Ombudsperson Institution and the Institute of Equality and Human Rights (IHRE) display impartiality and inadequacy in their attempts to address human rights violations in correctional facilities.
In conclusion, domestic-level challenges, as well as those at the supranational level, targetting Turkey’s transgender prisoners do not only interrupt long-existing attempts of interested organisations and individuals to eradicate practices discriminating on the grounds of gender identity, but they also limit these individuals’ access to justice.
28/9/2020
