A transfer from prison to a hospital, a courthouse or another institution is not merely a transport operation. Throughout the journey and the waiting, the person’s state of health, basic needs and human dignity must be protected. The requirement that a transfer be carried out securely does not justify keeping a person waiting unnecessarily in an unsuitable vehicle or disregarding his or her basic needs. In a legal application, the conditions inside the vehicle, the duration and the personal effects should be shown together.
What legal safeguards exist in transfer and transport?
Article 58 of Law No. 5275 regulates the measures to be taken in transfers. Not carrying out a transfer in vehicles with inadequate ventilation and light, or in a manner that is tormenting or degrading; and, in a transfer under the supervision of an officer, meeting food and bodily needs, are the core elements of this provision. [1]
The transfer decision itself and the conditions of the journey are different
Even where the decision to send a convict to another prison is lawful, the manner in which the journey is carried out may separately be unlawful. Conversely, although the vehicle conditions are appropriate, the reason for the transfer or its effect on family relations may give rise to a separate dispute. An application must state clearly which act it targets.
The focus of this article is the conditions inside the vehicle and the waiting. An objection to a decision to change institutions, or an international transfer of convicts, requires different conditions and documents. If there is more than one problem in the same file, the competent authority and the request for each must be set out separately.
How is waiting in a shuttle vehicle (ring aracı) assessed?
Journey time and the total time spent in the vehicle
The distance between two institutions alone is not sufficient information. Being taken out of the institution, being put on the vehicle, arrival at the hospital, waiting for one’s turn at the examination, the completion of other persons’ procedures and the return to the institution are separate periods of time. Despite a short journey, waiting for hours in the vehicle may be at issue.
In the application, the start and end times should be stated as far as possible. If the exact time is not known, it should be clearly written that it is approximate; corroborating documents such as the hospital entry and examination record should be requested. Writing exact durations without documents may lead to contradictions with records later.
Ventilation, temperature and vehicle capacity
That a vehicle has air conditioning is not the same as the air conditioning working at the time of the event. The ventilation of the compartment, the number of persons, the seating arrangement, the weather conditions and the manner of waiting are assessed together. If the technical specifications are not known, estimated measurements should not be presented as firm data; the vehicle’s records and, where necessary, a technical examination should be requested.
Moreover, not every discomfort automatically reaches the constitutional threshold of ill-treatment. The duration, intensity, health effect and the person’s particular situation are of importance. The strength of an application comes not from exaggerated adjectives but from the documentation of these elements.
Water, food and toilet needs
Meeting basic needs is part of the transfer plan. Although how security is to be ensured is the responsibility of the officers, a general explanation such as “we are in a hurry” does not justify disregarding all of the person’s bodily needs. When the request was made, what answer was given and when the need was met must be made concrete.
Special needs depending on state of health
Regular use of medication, the need to eat at certain intervals or to have access to a toilet, limited mobility and similar situations should be reported to the relevant health unit before the transfer. Which transport vehicle or arrangement is medically suitable is assessed by an expert. Instead of merely stating the name of the diagnosis, the family or the lawyer may ask for the functional need in the report to be assessed.
Even if health information has been reported to the institution, whether it was passed on to the unit carrying out the transfer is a separate question. The date on which the information was passed on and the document should be examined in the application. A lack of communication between units may be an explanation for the necessary measures not having been provided to the person; it cannot be assumed to remove legal responsibility on its own.
The Muhsin Gün decision: the obligation of an effective investigation
In the Constitutional Court’s (AYM) Muhsin Gün, Application No. 2020/23318, October 5, 2023 decision, allegations of being kept waiting for a long time in a transport vehicle in hot weather and of water and toilet needs not being met were examined. The Court assessed shortcomings such as the failure to hear witnesses, the failure to investigate camera footage and the failure to examine the physical characteristics of the vehicle. It held that the procedural limb of the prohibition of ill-treatment had been violated. [2]
Why must a substantive violation be distinguished from a procedural violation?
Because of the shortcomings in the investigation, the Court was unable at that stage to make an assessment of the substantive limb of the ill-treatment. For this reason, the decision should not be presented as though the applicant’s entire account of events had been conclusively proven. The re-investigation and the decision on non-pecuniary compensation are parts of the consequence relating to the failure to carry out an effective examination.
The decision shows that, in the concrete case, being content with the explanation of the unit complained about was not regarded as sufficient. It is important in the application to state the records that need to be investigated and which allegation they would clarify.
How is the event documented?
Building a chronology
The sequence of leaving the institution, waiting inside the vehicle, reporting the need, the examination and the return should be written down. The events the person remembers and the times shown by the documents should be kept apart; if there is a contradiction, it should be explained rather than concealed. Information known by the persons in the same vehicle may help in searching for witnesses.
| Record | Point it may clarify |
|---|---|
| Transfer list and duty record | Identifying the vehicle, the officers and the persons transferred |
| Hospital admission and examination record | Comparing arrival and procedure times |
| Available vehicle or hospital footage | Examining the waiting, the reporting of needs and movements |
| Health report | Needs before the event and findings after the event |
| Vehicle technical information | Ventilation, capacity and characteristics of the compartment |
Request for preservation of records
An assumption of indefinite retention should not be made for camera or duty records. By stating the place and time interval of the event, preservation of the relevant records and their inclusion in the investigation should be requested. The applicant may not be able to obtain all records personally; this does not remove the obligation to explain which record is needed and why.
If a health complaint has arisen, applying for health care without delay is important both for the protection of the person and for the correct assessment of the findings. The connection of a report obtained later with the event must be examined medically; the applicant’s own assessment does not take the place of a determination of causation.
What protective requests can be made for a future transfer?
If the same problem may recur, one should not be content with a request merely to punish the past event. A transfer plan suited to the state of health, the passing on of needs to the relevant unit, the assessment of waiting conditions and obtaining the necessary medical opinion may be requested. The measure proposed should suit the person’s needs and the duties of the institution.
Urgent need and the ordinary complaint process
A serious health problem arising on the day of the transfer must be reported immediately to the relevant officers and the health unit. The continuation of the administrative or judicial complaint process does not mean that a current health need is to be left waiting. In the later legal application, this notification and the answer given should also be shown.
As regards an ongoing institutional practice, the competent judicial route and a criminal complaint about the conduct of a law enforcement officer are not the same application. The competence and the request must be determined according to the type of act. It should not be assumed that every transfer dispute is directed to a single authority only.
Frequently asked questions
Is waiting in the vehicle in front of the hospital a violation on its own?
The duration of the wait, the conditions, the state of health and the meeting of needs are assessed together. Just as not every wait is an automatic violation, the lack of space in the hospital does not justify every condition.
If I do not know the vehicle’s license plate, can I still complain?
A search of the records may be requested using information such as the date of the event, the institution, the hospital and the transfer time. An unknown plate number or officer’s name must not be invented.
Does compensation arise in every transfer complaint?
No. The violation, the damage, the appropriate route of application and the other conditions are examined according to the concrete case. An amount in a precedent is not a tariff for all files.
How are application routes and time limits preserved?
Complaint to the enforcement judgeship for an institutional act
If the unlawfulness of a decision, act or activity within the scope of Law No. 4675 is alleged, the route of complaint to the competent enforcement judgeship (infaz hâkimliği) is considered. The general time limit is fifteen days from learning of it and in any case thirty days from the date of the act. An objection against a decision of the enforcement judgeship is provided for within two weeks of notification. Competence, the persons who may apply and the start of the time limit must be checked against the concrete act. [3]
A complaint does not suspend the act by itself. If the conditions in the law exist, a request for postponement or stay is separately substantiated. Continuing situations, renewed decisions and one-off events must not be treated with the same time-limit calculation. While waiting for an earlier application to be answered, it should not be assumed that the time limits of other applications are suspended.
Application to the prosecutor’s office for an allegation of crime
An application to the Chief Public Prosecutor’s Office (Cumhuriyet başsavcılığı) may be considered in respect of conduct of officers alleged to constitute a crime. This route is not the same as a request for the removal of an institutional act. The event, the evidence, the request for investigation and the applicant’s legal position must be clearly stated. The two-week time limit for objection by the person harmed by the crime against a decision not to prosecute (kovuşturmaya yer olmadığı kararı) under Article 173 of the Code of Criminal Procedure (CMK), running from notification, is also separately observed. [4]
An application to the AYM is not a first application replacing the ordinary routes. Depending on the nature of the complaint, the exhaustion of effective remedies and the admissibility conditions are examined. It cannot be said that every event can be taken directly to the Constitutional Court, or that exhausting the same route is sufficient in every application. It should also not be assumed that extraordinary applications renew time limits by themselves.
Related articles: Frisk, Cell and Detailed Searches in Prison: Legal Limits and Complaint Routes; Handcuffed Examination in Hospital and Patient Privacy: Rights of Detainees and Convicts; Holding in a Single-Occupancy Cell in Prison: Isolation, Solitary Confinement Penalty and Remedies; Transfer from Prison to Another Penal Execution Institution: Conditions, Proximity to Family and Application Routes.