The presence of a person with a disability in a penal execution institution does not remove that person’s need for an accessible environment, suitable care and conditions that respect human dignity. The legal review should not focus only on the disability percentage. Which daily tasks the person cannot perform, what kinds of barriers the conditions of the institution create and which accommodations are required must be assessed together.
Is disability an obstacle to staying in prison in every case?
A disability report does not by itself give rise to an automatic release order. For a detained person, the continuation of the detention measure; for a convicted person, the deferral of execution on health grounds or other execution options, depend on their own conditions. On the other hand, the fact that a decision has been made for the person to remain in the institution does not remove the obligation to provide suitable conditions.
Detention, deferral of execution and institutional conditions
These three areas may call for different requests. A person seeking the lifting of detention argues the conditions in the relevant criminal proceedings. As regards the deferral of a convicted person’s execution on health grounds, the conditions in Article 16 of Law No. 5275 and the medical assessment procedure are examined. The remedying of a lack of access or care in the institution, on the other hand, is a current legal need even if the person is not released. [1]
If an application says only “I have a disability, I should be released”, one of these different areas may be left unassessed. The principal request and the workable protective requests must be clearly separated.
What do accessibility and reasonable accommodation mean?
The prohibition of discrimination, accessibility and reasonable accommodation approach in Law No. 5378 on Persons with Disabilities aim at enabling the person to benefit from rights on an equal basis. In assessing the appropriate modifications necessary for an individual need, the burden imposed on the person and the workability of the solution are addressed concretely. [2]
Physical access
Being able to reach the room, toilet, bathroom, dining area and health unit; being able to use an assistive device; and a suitable bed and safe mobility are the main areas of review. The statement “there is a ramp in the institution” does not by itself show that the person can reach all basic necessities. For example, if there are steps that must be overcome to reach the ramp, the arrangement may remain of no practical use.
Access to information and communication
Disability is not only limited mobility. Difficulties with sight, hearing, cognition or mental health may require adapting the method of information and application. What the decision is and which route the person may take must be conveyed in an understandable way. Depending on the concrete need, an accessible document, suitable communication support or an explanation may be requested. Dependence on another person to write petitions may also raise problems of confidentiality and free will.
How is the need for care documented?
The effect of the report on daily life must be explained
Besides the disability rate, the support the person needs with dressing, eating, personal care, mobility and treatment follow-up should be shown. If an old report does not reflect the current condition, a new assessment is requested. A lawyer does not make a medical diagnosis; the lawyer identifies which legal question the report does not answer and asks for the appropriate examination to be made.
The solution offered by the institution should also be recorded. If placement in another room, transfer to a suitable institution or a support service has been proposed, it should be explained why this is or is not suitable for the person’s need. Rather than merely rejecting the solution, concrete objections in terms of privacy, health, access or security should be stated.
Is the help of other prisoners considered sufficient?
Daily solidarity and a regular, reliable and suitable care service are not the same thing. The continuity of the need, privacy and whether the help is provided safely are assessed. The result is not the same in every file. The risks created by the person’s basic needs depending solely on voluntary help must be clearly described.
Why is the A.A. decision an important example of inadmissibility?
In the Constitutional Court (AYM) decision A.A., Application No. 2016/24235, June 9, 2020, the complaint of an applicant with a physical disability concerning the conditions of detention was examined. The Court assessed the medical reports, the different placement and assistance options offered by the institution, the applicant’s approach to them and the concreteness of the complaints. It found the allegation of ill-treatment clearly unfounded and declared it inadmissible. [3]
Application errors the decision shows
The decision does not mean that persons with disabilities cannot experience any rights violation in prison. The review was made on the basis of that applicant’s reports and the institution’s replies. The Court assessed the adaptation of institutional conditions to the disability and noted that some general complaints had not been made concrete. The reasoning also mentions that the applicant did not refer to a complaint to the enforcement judgeship (infaz hâkimliği) regarding the relevant institutional conditions.
An effective file should therefore include, besides the disability document, the date of the request, the reply, why the proposed arrangement remained inadequate and the routes applied to. The outcome of the decision shows that supporting all complaints with a single report is not sufficient. The reasons for inadmissibility of the other rights claims in the same decision also differ from one another; all of them cannot be attributed to a single ground.
Content of the application to the institution and to the enforcement judgeship
| Matter to be explained | Example approach to the request |
|---|---|
| Concrete daily difficulty | The area that cannot be used or the need that cannot be met |
| Link with health | Assessment of a current report and specialist recommendation |
| Suitable solution | Accessible placement, device or care support |
| Previous reply | Explanation of whether the solution offered was implemented |
| Risk of delay | Stating the current harm and the need for urgent arrangement |
How is the outcome of the application followed up?
Receiving a favorable reply is not enough; whether the arrangement is actually implemented must also be checked. If the person still cannot reach the toilet even though it is said that “a suitable room has been provided”, the new situation can be documented and a supplementary request made. Instead of repeating applications in the same general terms, the difference between the previous reply and the current practice should be shown.
If an institutional transfer is proposed, access to health services, accessibility and the effect on family ties should be assessed together. Just as the family’s distance is not the only criterion, a health ground does not leave every placement decision outside review.
Application time limits and follow-up of the file
Complaint to the enforcement judgeship and objection to the decision
A complaint against the decisions, acts or activities of an institution within the scope of Law No. 4675 is made within fifteen days of learning of them and, in any event, within thirty days of the date of the act. An objection route is provided against an enforcement judgeship decision within two weeks of notification. Jurisdiction, the persons who may apply and the nature of the specific act must be checked separately. In continuing situations or in decisions of a different nature, the start of the time limit is examined separately; these general time limits do not apply to every legal remedy. [4]
A complaint does not by itself stop the act. When the conditions in the law are met, a request for deferral or suspension must be explained separately on the grounds of consequences that are difficult to remedy and of unlawfulness. It should not be assumed that submitting a petition to other authorities preserves these time limits. The full decision, the notification document and the previous applications should be kept together.
Related articles: Rights of Children Staying with Their Mothers in Prison: Care, Day Care, Health and Application Routes; Rights of Child Detainees and Convicted Prisoners: Education, Security, Discipline and Application; Suicide Risk and the Protection of Mental Health in Prison: Application Routes for Families.
Frequently asked questions
Does a high disability percentage secure automatic release?
No. The relevant legal conditions, the functional condition and the necessary medical assessment are examined together. The request for suitable conditions in the institution is followed up separately.
Can a request for an assistive device be resolved only by the family buying it?
The need for the device, medical suitability, admission to the institution and procurement procedures are assessed together. The family’s lack of means to purchase it does not by itself remove the accessibility problem.
Must a solution proposed by the institution be accepted?
The suitability of the proposal to the person’s need is examined. If it is not found suitable, the concrete objections and possible alternatives must be explained. An unreasoned rejection may make the assessment of a later application more difficult.