Conditions Of Probation And Failure To Comply With Probation
Conditions of Probation
In order to benefit from the probation law, certain conditions must be met. In other words, not every convict in prison can directly benefit from this law. The conditions for the application of probation differ according to the nature of the offense (in terms of transition to open prison), the amount of the sentence and the personality of the convict.
The convict must fulfill some conditions in order to benefit from probation. These conditions can be counted as follows;
The convict who wants to benefit from the Probation Law must spend the last 6 months in an open prison
The condition of spending the last 6 months in prison will not be applied until 31.12.2020 in accordance with the amendment of the provisional Article 4 of the Criminal Execution Law No. 5275, which entered into force on 01.01.2016. In other words, convicts who want to benefit from the probation law and be released after 31.12.2020 must have spent the last 6 months in open prison (Art.105/A-1). However, until 31.12.2020, there is no requirement to spend 6 months in open prison in order to benefit from the probation law. In other words, in the current practice, it is sufficient for the convict to have the right to transfer to open prison.
Conditions for Leaving to Open Prison; According to the new regulation, the person who spends 1/10 of his/her total sentence in closed prison and who has a certain period of time left for conditional release is entitled to leave to open prison. Since the conditions for leaving to open prison have been made easier, it has also become easier to benefit from the probation law.
However, it should be noted that even if the person is convicted after 31.12.2020 and has not spent the last 6 months in open prison, if he has met the conditions for leaving to open prison for the last 6 months, he can benefit from the probation law since he has earned this right. In other words, if the convict cannot be sent to an open prison against his/her will, for example due to lack of space, although he/she is in a closed prison, he/she can benefit from the probation law because he/she meets the conditions for leaving to an open prison.
Condition of Good Behavior of the Convict
In order to benefit from the probation law, the convict must be in “good behavior”. Whether the convict is in good behavior or not is decided by taking into account the evaluation report prepared by the prison administration. The convict also has the right to appeal against the report to the penal enforcement judge.
The convict’s petition requesting to benefit from the Probation Law
Probation can only be applied upon request. In other words, the probation law is not a law that can be applied spontaneously. If the convict makes a request by declaring that he/she wants to benefit from the probation law while in prison, the necessary procedures begin. When the convict notifies the Execution Judge to benefit from probation, the Execution Judge has to decide on this request as soon as possible.
The convict has to comply with the measures determined for him/her. For example, if he/she is ordered to work in a publicly useful job, he/she cannot violate this obligation. If it is decided that he/she will be under supervision in a region or residence, he/she cannot leave that region or residence.
How is the Law on Probation Applied to Juvenile Convicts?
Among the convicts who are sent to juvenile education center by gaining the status of convict in juvenile prison, those who do not continue their education are sent to open prison when they turn 18 years old, those who continue their education are sent to open prison when they turn 21 years old, regardless of the type of crime, and those who do not continue their education are sent to open prison when they turn eighteen years old, and those who continue their education are sent to open prison when they turn twenty-one years old, regardless of the type of crime and the duration of their stay in prison. The sentences of other crimes committed by children who are transferred to open prison before they turn 18 are also executed in open prison regardless of when they are finalized.
In order for juvenile convicts to benefit from the probation law, they must serve 1/5 of their total sentence in a juvenile education center and have 1 year left before their conditional release.
Failure to Comply with Probation
The convict is released because he/she undertakes to comply with the rules introduced by the probation law. Failure to comply with supervised release will result in the loss of the form of execution that the convict has benefited from. In case of violation of the probation application, the convict is taken back to prison.
Violation of the condition to apply within 3 days after release
The convict must apply to the Directorate of Probation within three days after his/her release and start participating in the program appropriate to the measure against him/her. If he fails to comply with this rule, he is deemed to have violated the probation law. When the probation law is violated, the convict loses the right to parole and is taken back to prison.
Persistence of the Convict in Not Complying with the Program of the Probation Directorate
The convict has to continue the program determined by the probation directorate. If the convict “insists on not complying with the program” determined by the directorate, the probation law is considered to be violated again. In practice, failure to comply with the program twice is considered as “persistence in not complying with the program”.
The Convict’s Refusal to Benefit from the Probation Law
The convict can also waive this right spontaneously after his/her release by benefiting from the probation law. If the convict makes a request without any justification, the application made due to the probation law is terminated and the sentence continues to be executed in prison.