The basic rights of foreigners held in a penal execution institution in Türkiye do not disappear merely because of their nationality. Contact with the consulate, understandable information, legal assistance and correspondence with family make it possible for the legal position to be followed effectively. For each need, an application must be made to the right authority, with the right document and a concrete request.
Consular notification and a planned visit by a consular officer are not the same procedure. A relative’s entry into the prison, the registration of a telephone line and the transfer of a convicted person to another country are also subject to separate procedures. This article focuses on the communication and application problems of foreign detainees and convicted prisoners in particular; it explains what help a consulate can give and the limits of that help.
What does being a foreigner change in the law of execution of sentences?
Article 2 of Law No. 5275 provides that the rules of execution are applied without discrimination on the grounds specified, including language and nationality. However, for a foreign person to actually exercise rights, needs such as language, family abroad, obtaining documents and a consular connection must be addressed separately. Equality is not achieved merely by treating a notice that the person does not understand as delivered. [1]
The legal position of a detainee and a convicted prisoner
Detention is a protective measure ordered within criminal proceedings. In the case of a convicted prisoner, the execution of a final sentence is involved. A request for release, a legal remedy against the conviction and a complaint about correspondence within the institution may be examined by different authorities. Confusing these routes in the same petition in a foreign person’s file may cause delay.
First, the reason for custody, the case file in which the decision was made, nationality details and the language in which communication is possible must be established. If there is more than one nationality, statelessness or international protection, the scope of contact with a consulate should be assessed separately. The person’s express will and security concerns must not be overlooked.
Does the consulate take the place of a lawyer?
A consulate can communicate with its national and can help arrange legal representation. However, it is not an authority that takes over all the duties of defense counsel in Turkish criminal proceedings. For the defense before the court, an objection to detention or a complaint concerning execution, the relevant procedure must be followed. Informing the consulate does not mean that the time limit for a legal remedy stops running or that a release decision will be made.
Consular notification and the person’s will
Article 36 of the Vienna Convention on Consular Relations provides that a foreign person may communicate with his or her consulate and must be informed without delay of consular rights. The notification system in the Convention is linked to the person’s request; consular officers have powers to visit, converse, correspond and help arrange legal representation. There is also a safeguard that no action is taken on a person’s behalf where he or she expressly objects. [2]
Notification provisions in Turkish law
Article 22(2) of Law No. 5275 provides for notification of the diplomatic mission or consulate of the state of nationality on admission to an institution, transfer to another institution and admission to hospital, on condition that the foreign convicted person does not object in writing. At the stages of apprehension, police custody and detention, the relevant notification provisions of the Code of Criminal Procedure apply separately. These stages should not be treated as the same procedure. [1, 3]
The request-based framework in the Vienna Convention and the written no-objection provisions of Turkish law should be assessed together, in a way that protects the person’s will. The date of notification, the receiving mission and the transmission record may be requested. If the person objects, it is important that the objection be taken in an understandable way and recorded.
Why must notification of the consulate be made without delay?
Contact with the consulate is important at an early stage for informing relatives, meeting language and document needs and arranging legal assistance. The preparation time for a later visit cannot be used as a reason to postpone the initial notification. It should be stated in particular that notification and a planned visit are different procedures.
How is a consular visit prepared?
The explanations of the General Directorate of Prisons and Detention Houses (Ceza ve Tevkifevleri Genel Müdürlüğü) set out the procedure for meetings between consular officers and their own nationals or the persons they represent under an agreement. For ordinary offenses, a distinction has been explained under which a planned application is made one week in advance to the Chief Public Prosecutor’s Office at the relevant high criminal court center; for terrorism and organized offenses, it is made fifteen days in advance to the Ministry. These periods are not periods during which the initial consular notification may be withheld. [4]
What information should a visit request contain?
The request must clearly state the person’s name, nationality, the institution where he or she is held, the identity of the officer who will visit, the proposed date and the purpose of the meeting. If a transfer has taken place, the previous institution’s information must not be relied on. The status of a consular employee and the participation of a religious official, interpreter or other specialist should not be assumed to be covered by the same permission.
Where the meeting does not take place, not only the date of the visit but also the reason for refusal or postponement should be recorded. A visit postponed because of missing documents and a meeting refused on grounds of content or security call for different assessments. Completing the missing document does not of its own accord stop the time limit for applying against a separately issued legal refusal decision.
How does the family of a foreign convicted prisoner visit the prison?
Relatives coming from abroad should find out about the document and permission process with the institution and the Chief Public Prosecutor’s Office before their travel plans. The CTE explanations set out an application to the Chief Public Prosecutor’s Office with a proof of kinship and a copy of the passport and, if approved, the practice of a visitor card with a photograph. How subsequent visits are made should be confirmed with the relevant institution. [4]
How are document discrepancies handled?
The spelling of names and the date format may differ in foreign civil registry, birth or marriage documents. It is useful to explain the differences between the passport and the proof of kinship. The need for translation, verification or certification must be determined by the nature of the document; the same procedure should not be assumed to be required for every document.
A plane ticket or hotel reservation does not replace a visit permission. The visitor’s registration status and the current visiting schedule must be checked in advance. The conditions for a family member’s entry into Türkiye and the conditions for admission to a penal execution institution are also different. Satisfying one does not automatically satisfy the other.
Dual nationality and the relationship of representation
For persons who also hold Turkish nationality, a consular visit and an assessment of reciprocity may arise. Nationality details must be submitted in full. Which state’s mission the person wishes to contact is assessed on the basis of the available documents and the applicable international rules. A general statement of holding a foreign passport does not solve every problem.
Language problems and understandable information
Article 22 of Law No. 5275 regulates information on rights, responsibilities, discipline and complaint routes at admission to an institution. For foreigners who do not know Turkish, there is a provision for information in their own language and, where that is not possible, in English, French or German. The purpose of this rule is to enable the person to understand life in the institution and the routes of application. [1]
Does signing a notification document prove understanding?
A signature may be a record of the delivery of the document; however, it does not of its own accord resolve every aspect of a dispute about language. Which language the person knows, how the explanation was given and whether an interpreter or written translation was used must be made concrete. Instead of merely saying in the application that the person does not know Turkish, it should be shown which part of which decision could not be understood and how this affected the exercise of the right.
The scope of the right to an interpreter
In criminal proceedings, interpreter assistance is assessed under the relevant provisions of the Code of Criminal Procedure. This safeguard does not mean that an interpreter will be provided without limit and in the same way for all everyday procedures within the institution. A language barrier affecting the defense, a need for medical communication and a general information problem call for separate assessment. The effective exercise of the right of access to treatment in health matters must also be taken into account.
Telephone and correspondence with persons abroad
For a telephone number abroad, proof of line ownership and proof of kinship may be required. Recording the number correctly with its country code, explaining the language of communication and stating the difficulty in obtaining documents makes the application concrete. The institution’s registration request and notification of the consulate must not be confused; the consulate’s knowledge of the person’s existence does not cause the family’s line to be entered into the system automatically.
For conversations in a language other than Turkish, the language and recording provisions of Article 74 of the Regulation are taken into account. The need to communicate with a relative who does not know Turkish must be expressly notified. The claim that the call time, because of the time difference between countries, in practice prevents family communication can be supported by the time zone and suitable alternatives. Not every request concerning the time difference must be accepted; an applicable solution should be requested. [5]
What does the Jadhav decision show about consular access?
In its judgment of International Court of Justice, Jadhav (India/Pakistan), 17.07.2019, the Court examined the obligations of information and consular access under Article 36 of the Vienna Convention. The Court ordered an obligation of effective review and reconsideration that takes account of the effect of the violations. The judgment shows the importance of consular safeguards in criminal proceedings. [6]
This judgment is not a decision of a Turkish enforcement judgeship or of the Constitutional Court (AYM); it was given in a dispute between states. It does not produce an automatic release result in every file in Türkiye. Nor does it mean that individuals can apply directly to the Court on an individual basis. In a concrete file, the effect of a failure of notification on the defense and the domestic remedy to be used must be determined separately.
How is an application file prepared?
The file should be built around the person’s custody status and the main need. Notification of the consulate, securing a family visit, an understandable notification or correcting a telephone record are different requests. The document and competent addressee for each must be shown separately.
| Need | Basic document | Matter to be explained |
|---|---|---|
| Consular notification | Nationality and custody information | Request or will to object |
| Family visit | Passport and proof of kinship | Visitor registration and permission |
| Language support | Decision and information record | The procedure not understood and its effect |
| Telephone abroad | Number and line information | Registration, language and time difference |
Time limits and the correct authority
For a complaint within the scope of Law No. 4675 concerning institutional acts, fifteen days from learning of the act and in any event thirty days from the act are taken into account; for an objection to an enforcement judgeship decision, the current general rule of two weeks from notification applies. Detention in a criminal case or legal remedies against a judgment are not pursued with the same time limits. Correspondence with the consulate does not of its own accord stop these time limits either. [7]
The delivery of the first petition, the notification of the decision and the request for translation should be recorded. Unknown dates should not be written as though they were certain; the records at hand and the matters requested to be investigated should be shown. The explanations on applying to the enforcement judgeship and the right to petition complete this preparation.
Transfer to another country and deportation
Consular assistance does not automatically lead to the sentence being executed in another country. The transfer of a convicted person is assessed separately under the applicable international and national conditions. Deportation is also an administrative process different from the execution of a sentence and a consular visit. Requests in these areas must be prepared separately on the basis of the relevant decision and time limits.
Preparation before applying, for foreign relatives
Collecting shared documents in a single file arrangement
The passport, proof of kinship, institution details and earlier applications may be held by different people. The person preparing the file should first determine which document is needed for which request. Sending contradictory translations of the same document to different authorities may make the identity and kinship review more difficult. The current spelling of the name, former names and, if any, the basis of the change should be explained together.
It is often unnecessary to send all personal data at the first contact. The legal problem and a list of the documents at hand can be notified first; detailed documents can be shared as needed. It is especially important that another person’s health or passport data not be shared with unauthorized persons. In communication among the consulate, the family and the lawyer, the person’s will and authority of representation must be respected.
Following three different calendars at the same time
The family’s travel calendar, the preparation calendar for the consular visit and the time limit for the judicial application are independent of one another. The approach of the flight date does not extend the application deadline; nor does the fact that an application has been made show that the visit has been approved. In a tracking chart, the decision date, the date of learning or notification, missing documents and the expected reply can be kept in separate fields.
Hypothetical example: communication with a child abroad
If the child of a foreign convicted prisoner attends school in another country and cannot talk at the telephone time set, the application should not state only the name of the country. The local time equivalent, the school schedule, the other parent’s availability and alternative times should be explained. This information is needed so that the administration’s means and the family’s need can be assessed together. The Yeliz Erten decision in the article on telephone and video calls shows the approach to assessment relevant to effective communication with a child; it does not determine in advance the result of a different file.
Conclusion
Effective legal protection for foreign detainees and convicted prisoners requires the custody status to be correctly determined, understandable information, contact with the consulate and family connections to be followed together. Separating the processes of notification, visit, defense and transfer ensures that each request is supported by concrete documents and the right application route.
Frequently Asked Questions
Can a foreign person speak with his or her consulate?
Consular communication and visits are possible within the framework of the Vienna Convention and national provisions. Notification, the person’s will and the procedure for the visit are assessed together.
Does the waiting period for a consular visit also postpone the initial notification?
No. The advance application period for a planned visit and the obligation of initial notification are different. Preparation for a visit cannot be made a reason for delaying the initial notification.
Will I be released if I apply to the consulate?
The consulate is not an authority that gives release decisions. Requests for release and legal remedies must be submitted to the competent judicial authorities under the relevant procedure.
If my family has bought a plane ticket, is the visit confirmed?
No. Proof of kinship, visitor registration, the necessary permission and the current institutional schedule must be checked separately.
Does not knowing Turkish stop all time limits?
An automatic stop should not be assumed. The understandability of the notification, the language barrier and its effect on the application must be documented and raised in the relevant legal route.
Sources
- Law No. 5275, especially Arts. 2 and 22.
- Vienna Convention on Consular Relations, Art. 36, official UN text.
- Law No. 5271 on Criminal Procedure, notification and interpreter provisions.
- CTE, explanations on visits to foreign convicted prisoners and detainees.
- Regulation on Penal Execution Institutions, Art. 74, telephone calls.
- International Court of Justice, Jadhav (India/Pakistan), 17.07.2019, case page. An interstate judgment; not an individual application authority.
- Law No. 4675 on Enforcement Judgeships, Arts. 5 and 6.