The right to visitation in prison is one of the basic guarantees that allow convicted prisoners and pretrial detainees to maintain their bond with their family and the outside world. Whether the visit is held as a closed or an open visit, who will be admitted as visitors, the replacement of a person on the list and the restriction of a visit are subject to different rules. For an effective application, it must first be determined why the visit did not take place and which authority’s decision this result stems from.
A relative’s not being admitted to a visit does not always raise the same legal problem. A missing identity document, a failure to change the visitor list, a restriction on grounds of institutional security and a judicial decision given for the integrity of the investigation are distinct from one another. This article explains the general visiting regime and the preparation of an application; aggravated life imprisonment and provisions specific to children are assessed separately.
Legal basis of the right to visitation in prison
Article 83 of Law No. 5275 regulates the right to visitation; Article 116 regulates the application of the relevant provisions to pretrial detainees. The Regulation on Visits to Convicted Prisoners and Pretrial Detainees (Hükümlü ve Tutukluların Ziyaret Edilmeleri Hakkında Yönetmelik), in turn, contains the details on determining visitors and conducting visits. Article 20 of the Constitution and Article 8 of the European Convention on Human Rights form the framework of assessment for the protection of family and private life. [1, 2]
Why does the distinction between a convicted prisoner and a pretrial detainee matter?
For a convicted prisoner, the execution of a final sentence is at issue; for a pretrial detainee, criminal proceedings that are still ongoing. A restriction connected with the investigation or prosecution may exist on a pretrial detainee’s visits. It is therefore not enough to look only at the institution’s visiting schedule. By whom, in which file and on what legal basis the decision was given must be examined.
The route to follow against judicial restrictions under Article 114 of Law No. 5275 and a complaint about the institution administration’s visiting action should not be treated as the same. If the date, number and authority of the decision are clearly shown in the petition, determining the competent authority becomes easier. A lawyer’s visit, on the other hand, is not a type of family visit; it is subject to separate guarantees relating to the right of defense. The explanations on meetings with a lawyer and confidentiality complement this distinction.
Is the right to visitation entirely unlimited?
Measures in accordance with the law may be taken for institutional security and order. Nevertheless, the purpose, basis and scope of the measure must be understandable. The effect on other family members of a decision taken because of one visitor’s conduct, its duration and whether the aim could be achieved with a lighter measure require separate assessment. Abstract security statements do not replace an explanation of the specific case.
The difference between open visits and closed visits
A closed visit (kapalı görüş) takes place in a special section where physical contact is prevented. In an open visit (açık görüş), physical contact is allowed under the conditions set by the legislation. An open visit is not a meeting in which private life is free of all restrictions or in which the officers’ supervision disappears. The nature of the visit should also not be confused with whether the penal institution is open or closed. [2]
| Subject | Closed visit | Open visit |
|---|---|---|
| Physical contact | Prevented | Possible within the permitted framework |
| Practice | The schedule announced by the institution | The relevant open visit schedule |
| Admission of visitors | Identity, kinship or list conditions | Separately applicable conditions for open visits |
| Security | Entry and visit rules apply | Security rules continue |
How long does a visit last?
The general framework in Article 83 of Law No. 5275 is a visit of not less than half an hour and not more than one and a half hours. For child convicts, the duration is set at not less than one hour and not more than three hours. This provision does not mean that an adult convicted prisoner’s visit is automatically extended to three hours because of each child who is a visitor. Special provisions, such as the aggravated life imprisonment regime, apply separately. [1]
On the websites of some institutions, an hourly upper limit reflecting the old regulation can still be seen. The current statutory provision must be separated from the old website announcement. On the other hand, the statutory upper limit does not, on its own, require every specific visit to be held up to that limit. The actual start and end of the visit and the reason for any shortening should be recorded.
How is the visiting day learned?
The relevant institution’s current announcement should be taken as the basis for the visiting day and time. The schedules of different institutions on the same campus may differ from each other. Which dates and which relatives a holiday or special-day announcement covers must also be checked separately. Setting out on a long journey relying on an old social media post increases the risk that the visit cannot take place.
Who can be a visitor in prison?
Under the general regime, the spouse, blood relatives and relatives by marriage up to the third degree, and the guardian or curator benefit from the right to visitation, subject to documentation requirements. In addition to these, there is a separate list system for up to three notified visitors. The degrees of kinship are not the same for visits and for telephone calls; the wider degree regulated for telephone calls cannot be carried directly over to the right to visitation. [1, 2]
When is the three-person visitor list notified?
Article 9 of the Regulation provides that the names and surnames of these persons and, if known, their addresses be notified within sixty days from the date of admission to the institution and notification of this matter. In a dispute, the date of admission matters as much as when and how the obligation to notify the list was served. A copy of the notification document should be requested; whether the person understood the information because of language or literacy should be explained where necessary. [2]
Being written on the list does not mean that no identity and security check will be carried out. An inquiry may be made about a new visitor, or completion of missing identity information may be requested. A person who could visit with a kinship certificate being mistakenly counted as part of the three-person list is also a record problem that requires separate examination.
Can permission be obtained for a person who is not on the list?
The law and the Regulation contain a provision on the written permission of the Office of the Chief Public Prosecutor (Cumhuriyet başsavcılığı) where there is a reasonable ground. This route is not a general exception that removes all list and schedule conditions. The request should explain the person’s relationship with the convicted prisoner, the purpose of the visit and why it cannot be met by the ordinary schedule. Special restrictions for aggravated life imprisonment are reserved. [1, 2]
Change of visitor and the Mehmet Zahit Şahin decision
Changing the visitor list is one of the areas that frequently gives rise to disputes in practice. The Regulation lists compelling circumstances such as death, serious illness, natural disaster, transfer and a change of place of residence that eliminates the possibility of visiting. The rationale here requires distinguishing a mere change of preference from a right to visitation that cannot actually be exercised.
What deficiency did the Constitutional Court (AYM) identify?
In the decision Mehmet Zahit Şahin, App. No: 2013/4708, 20.04.2016, the Constitutional Court examined a request to replace a person who had not come to visit for a long time. A narrow and mechanical interpretation of the compelling circumstances, without sufficient assessment of the specific conditions notified by the applicant, led to a violation of the right to respect for private life. The Court pointed out that the examples in the Regulation do not exclude an examination of the particulars of the case. [3]
The decision does not lead to the conclusion that a convicted prisoner can change visitors whenever they wish. The essential issue is that the reason for the change be investigated and the refusal decision be individualized. The effect of the new visitor on security and the old person’s actual inability to visit are different questions. It is useful to give a separate explanation for each in the petition.
How is a change request made specific?
The date of the last visit, the reason for being unable to visit, information on a move or illness and the identity of the alternative person should be submitted together. An address change that is not known for certain should not be written as an established fact. The applicant may explain the limit of their knowledge and ask for the institution’s records or the relevant information to be investigated. The allegation that no visit has been made for a long time can be supported with visit records.
Protecting personal contact with a child
The visiting schedule should be assessed within a broader family relationship than correspondence between adults. The child’s age, school calendar, health and travel conditions matter. The child’s best interests should be raised not as an abstract expression that requires every request to be accepted, but as a concrete criterion that helps determine a workable solution.
What information is needed in cases of distance or illness?
Stating the distance in kilometers may not be sufficient on its own. Travel time, public transport options, the need for an accompanying person and a conflict between the visiting hour and the school schedule should be explained. If there is a health ground, not only the name of the diagnosis but its effect on the journey or on waiting should be shown. Child health data in more detail than necessary should not be shared.
If the difficulty of visiting is permanent, a prison transfer request may be considered separately. However, a transfer application does not stop the time limit for complaining about the existing visit refusal decision. The legal purpose and the application timetable of each request should be kept separate.
Application against obstruction of a visit
A written document or a copy of the record should first be obtained. For a refusal communicated orally at the door, the date, time, the unit on duty, the document presented and the reason given should be noted. The subject of the application should be as specific as possible: for example, correction of the visitor record, reassessment of a list change or lifting of a particular restriction.
Complaint to the enforcement judgeship and time limits for objection
Under Article 5 of Law No. 4675, a complaint route is provided against acts and activities within its scope within fifteen days of learning of them and in any case within thirty days of the date of the act. The current general time limit for objection to an enforcement judgeship decision (infaz hâkimliği kararı) is two weeks from notification. The seven-day period seen in old decisions should not be applied directly to today’s applications. [4]
A complaint does not stop the act on its own. If the conditions of consequences that are difficult or impossible to remedy and manifest unlawfulness exist, a request for suspension or stay can be made specific. Why an upcoming one-time visit cannot be compensated should be shown separately in the petition. For the detailed procedure, see the article on applying to the enforcement judgeship and objection.
Which documents should be in the application file?
| Allegation | Supporting record | Result sought |
|---|---|---|
| The visitor information is incorrect | The list, identity and the earlier petition | Correction of the record |
| The change is compelling | Visit records and a document of excuse | Individual reassessment |
| The visit was shortened without reason | A record of the actual start and end | Review of the lawfulness of the act |
| Contact with the child was obstructed | School, transport and family information | A workable visiting arrangement |
If, after ordinary remedies have been exhausted, an allegation of a constitutional violation continues, the conditions of an individual application are examined separately. The Constitutional Court is not an administrative authority that determines the visiting schedule in the first instance. It matters that the fundamental-rights allegation and the decisive events were set out in the earlier petitions.
Common mistakes in a visitation file
Misidentifying the type of refusal decision
When a visitor is turned away at the door, looking only at the convicted prisoner’s disciplinary record is not enough. There may be an identity problem at entry, a measure relating to the visitor’s own conduct or a ban in an investigation file. A petition prepared without identifying the addressee, duration and scope of the decision may end without discussing the actual act. When requesting a written explanation from the institution, it should be stated for which day and which visitor information is requested.
Turning every visitation problem into a transfer request
A transfer to an institution close to the family can be a meaningful solution in some files. However, for a temporary list error or a visiting-day problem, the relevant act should be corrected first. In the assessment of a transfer, the institution’s capacity and other conditions also come into play. Giving separate reasons for the request to lift the current visiting obstacle and for the long-term transfer request makes for a clearer application.
Preparing an application through an example case
Let us imagine that a visitor has been unable to come for two years because of moving to another city and that a friend is requested to be notified in their place. In this hypothetical case, the subject of the application is not an unlimited visiting permission for the new friend but the change of the existing list for a compelling reason. The date of the last visit, the effect of the move on transport, information that the person can no longer come and the identity of the new visitor should be in the file. The administration’s decision is examined by comparing it with this information; an outcome of acceptance cannot be guaranteed in advance.
If telephone communication has been proposed in place of a visit, to what extent this meets the family relationship can also be explained. In particular for the needs of a child or a relative with a disability, the same means of communication does not have the same effect for everyone. The article on telephone and video calls explains the conditions of alternative communication.
Conclusion
Protecting the right to visitation requires work broader than learning the degree of kinship and the visiting calendar. The source of the refusal decision, the person’s special circumstances and the workable alternative must be examined together. Particularly in a change of visitor, a file prepared on the basis of past records and concrete necessities, rather than an abstract request, helps make judicial review effective.
Frequently Asked Questions
Can I visit my friend in prison?
If you are not within the scope of kinship, the three-person visitor list or, if the conditions exist, the route of written exceptional permission is examined. Being a friend alone does not give a right to visit without registration or permission.
Can the visitor list never be changed?
No. Compelling circumstances and the particulars of the specific case must be assessed. The Mehmet Zahit Şahin decision shows that grounds cannot be rejected mechanically; it does not grant an unlimited right of change.
When my child comes to the visit, can I meet for three hours?
The duration provided for a child convict and the situation of a child visitor are different. The child’s needs can be raised separately; the visiting time of an adult convicted prisoner does not automatically extend to three hours.
Does a visiting ban also cover a lawyer’s visit?
A family visit and a lawyer’s visit for defense purposes are subject to different guarantees. The scope of the relevant decision and the special provisions on lawyer visits must be examined separately.
Does filing a new petition with the institution stop the time limit for complaint?
It should not be assumed that the time limit stops. Asking for the same act to be reassessed does not automatically renew the judicial application period running for the first act.
Sources
- Law No. 5275, in particular Arts. 25, 83, 114 and 116. The periods in the current Art. 83 have been taken as the basis.
- Regulation on Visits to Convicted Prisoners and Pretrial Detainees, in particular Arts. 7, 9, 10 and 13. The old duration statements on the institution’s page should be read together with the current law.
- AYM, Mehmet Zahit Şahin, App. No: 2013/4708, 20.04.2016. The events, reasoning and result of the decision have been assessed together.
- Law No. 4675 on Enforcement Judgeship, Arts. 5 and 6.