UNION OF TURKISH BAR ASSOCIATIONS REVIEW
UNION OF TURKISH BAR ASSOCIATIONS REVIEW TÜRKİYE BAROLAR BİRLİĞİ DERGİSİ The Selected Articles
Sahibi / Owner Av. R. Erinç Sağkan Türkiye Barolar Birliği Başkanı Sorumlu Müdürü / Managing Director Av. Veli Küçük, TBB Genel Sekreteri Yayından Sorumlu Başkan Yardımcısı/ VicePresident Head of the Publishing Department Av. Gürkan Altun, TBB Başkan Yardımcısı Genel Yayın Yönetmeni / Executive Editor Av. Özlem Bilgilioğlu Eşgüdüm Kurulu / Board of Coordination Av. Gürkan Altun Av. Veli Küçük Av. Gökhan Bozkurt Av. Özlem Bilgilioğlu Yayın Kurulu Özlem Bilgilioğlu Türkiye Barolar Birliği Genel Yayın Yönetmeni Gizem Özkan Hacettepe Üniversitesi Hukuk Fakültesi Medeni Hukuk ABD Araştırma Görevlisi Mustafa Horuş Türkiye Barolar Birliği Yayın İşleri Sorumlusu Danışma Kurulu / Board of Advisors* Prof. Dr. Ahmet Kılıçoğlu Atılım Üniversitesi Hukuk Fakültesi Prof. Dr. Ayşe Havutçu Yaşar Üniversitesi Hukuk Fakültesi Prof. Dr. Ayşe Nuhoğlu Medipol Üniversitesi Hukuk Fakültesi Prof. Dr. Durmuş Tezcan İstanbul Kültür Üniversitesi Hukuk Fakültesi Prof. Dr. Korkut Kanadoğlu Okan Üniversitesi Hukuk Fakültesi Prof. Dr. Muhammet Özekes Dokuz Eylül Üniversitesi Hukuk Fakültesi Prof. Dr. Necmi Yüzbaşıoğlu Galatasaray Üniversitesi Hukuk Fakültesi Prof. Dr. Sibel Özel Marmara Üniversitesi Hukuk Fakültesi Prof. Dr. Sultan Üzeltürk Yeditepe Üniversitesi Hukuk Fakültesi Prof. Dr. Türkan Yalçın Ankara Üniversitesi Hukuk Fakültesi *(İsme göre alfabetik sıralanmıştır) Union of Turkish Bar Associations Review is a selection of the articles from Türkiye Barolar Birliği Dergisi. The original Türkiye Barolar Birliği Dergisi is a refereed review. The selected pieces are translated into English to be published in the Union of Turkish Bar Associations Review. Union of Turkish Bar Associations Review is issued yearly. Articles published in these series express solely the views of the authors. Articles published in these series can not be republished without citation. The original Türkiye Barolar Birliği Dergisi is being permanently indexed in TÜBİTAK - ULAKBİM law database. İletişim Adresi / Communication Address Türkiye Barolar Birliği Başkanlığı Yayın İşleri Mudürlüğü Oğuzlar Mah. Av. Özdemir Özok Sokak No: 8 06520 Balgat - ANKARA Tel: (0312) 292 59 00 (pbx) Faks: (0312) 286 55 65 web:www. barobirlik.org.tr e-posta: yayin@barobirlik.org.tr Abonelik / Subscription Yıllık abone bedeli: 300 TL. Sayfa Tasarımı ve Ofset Hazırlık / Page Design and Offset Preparation Türkiye Barolar Birliği Yayın İşleri Basım Yeri / Printed by ARCS Matbaa Zübeyde Hanım Mah. Aslanbey Cad. Tuna Han No: 101/2D İskitler / ANKARA 0 (312) 384 24 01 Sertifika No: 49427 Basım Tarihi / Printing Date : 23. 02. 2023
CONTENTS / İÇİNDEKİLER IV FROM THE PRESIDENT / BAŞKANDAN REFEREED ARTICLES / HAKEMLİ MAKALELER 1 Süleyman ÖZAR Hunger Strike in the Pendulum of Ethics and Law / Eti̇k İle Hukuk Sarkacında Açlık Grevi 47 Bahar TOPSAKAL Evaluation of Actual Aggregation and Conceptual Aggregation Rules in Terms of the Crime of Disturbing the Individuals’ Peace and Harmony / Kişilerin Huzur ve Sükununu Bozma Suçu Bakımından Gerçek İçtima ve Fikri İçtima Kurallarının Değerlendirilmesi 71 Özlem TÜZÜNER / Erkam Talat DUYMUŞ / Harun ALGÜL The Legal Responsibility of Nurses in the Light of the Turkish Court Of Cassation Jurisprudence / Yargıtay Kararları Işığında Hemşirenın Hukukî Sorumluluğu 113 Hacı KARA Physician's Compulsory Liability Insurance According to Judicial and Arbitral Decisions / Yargıtay ve Hakem Kararlarına Göre Hekimin Zorunlu Mali Sorumluluk Sigortası
IV From the President from the president Dear Colleagues As the Union of Turkish Bar Associations, we are happy to launch a new publication. We are presenting the Union of Turkish Bar Associations Review to our readers, for the first time. Union of Turkish Bar Associations Review is a project that we have initiated to bring our authors’ articles to a wider circle of readers. The Review, which is designed to be published once a year among the articles written in English in the previous year's issues, will be published in full text in pdf format on our website and will be scanned by search engines and will enable the articles to reach readers in English. We believe that the works reaching a wider network of readers in this way will contribute more to the literature and the articles will receive more citations. I would like to take this opportunity to invite our authors to submit their articles in English to the editors of the Review. Although we are publishing a selection of four articles in our first issue, I sincerely believe that we will have the opportunity to publish more articles in future issues. In the future, I hope that the Union of Turkish Bar Associations Review will become an international review that accepts articles on its own. I wish that the Union of Turkish Bar Associations Review, which is a product of the pioneering mission of the the Union of Turkish Bar Associations in the field of academic law publishing, will be beneficial to our legal world, and I congratulate our team for coming up with the idea of such a review and implementing this idea by pushing the possibilities. Best regards Attorney R. Erinç SAĞKAN President of the Union of Turkish Bar Associations
V Başkan’dan başkandan Değerli Meslektaşlarım, Türkiye Barolar Birliği olarak, yeni bir yayını hayata geçirmenin mutluluğunu yaşıyoruz. Union of Turkish Bar Associations Review ile ilk kez karşınıza çıkıyoruz. Union of Turkish Bar Associations Review yazarlarımızın makalelerini daha geniş bir okur çevresine ulaştırmak üzere hayata geçirdiğimiz bir projedir. Yılda bir kez, bir önceki yıl içerisinde yayınlanmış makaleler arasından bizlere makalelerinin tercümelerini ileten yazarlarımızın çalışmalarını İngilizce olarak da yayınlamak üzere tasarladığımız Review, internet sitemizde PDF formatında tam metin olarak yayınlanmak suretiyle arama motorlarınca taranacak ve çalışmaların İngilizce dilinde de okurlara ulaşmasını sağlayacaktır. Bu şekilde daha geniş okur ağına ulaşan eserlerin literatüre daha fazla katkı yapabileceğini, makalelelerin daha fazla atıf alacağını da düşünüyoruz. Bu vesileyle, yazarlarımızı, makalelerinin İngilizcelerini de dergi editörlerimize ulaştırmaya davet ediyorum. İlk sayımızda dört makalelik bir seçki yayınlıyorsak da bundan sonraki sayılarda daha fazla makale yayınlama imkanı bulacağımıza canı gönülden inanıyorum. Bir vadede, Union of Turkish Bar Associations Review, müstakil makale kabul eden bir uluslararası dergi olacaktır diye umut ediyorum. Türkiye Barolar Birliği Dergisi, akademik hukuk yayıncılığı alanındaki öncülük görevinin bir ürünü olan Union of Turkish Bar Associations Review’un hukuk dünyamız için hayırlı olmasını diliyor, böyle bir dergi fikrini ortaya koyan ve olanakları zorlayarak bu fikri hayata geçiren dergi ekibimizi kutluyorum. Saygılarımla Av. R. Erinç SAĞKAN Türkiye Barolar Birliği Başkanı
HUNGER STRIKE IN THE PENDULUM OF ETHICS AND LAW ETİK İLE HUKUK SARKACINDA AÇLIK GREVİ Süleyman ÖZAR* Abstract: Hunger which could occur in various contexts, but they result in important legal and ethical dilemmas for health-care professionals caring for hunger strikers who are imprisoned or detained. Hunger strikes in prisons present clinical, ethical, legal and human rights challenges to practitioners. Physical integrity of the person cannot be infringed without his or her consent. The consent of the person will justify the interventi- on. However, rules of hunger strike in prisons introduce certain exemptions with respect to this general rule. This study will try to provide an insight into the domestic law and international standards regarding the management of hunger strikes. In that sense, the study will make an analysis of the Law on the Execution of Penalties and Security Measures (Law no. 5275) and its conformity with the constitutional framework, ECHR’s jurisprudence and ethical principles. Keywords: Hunger Strike, Total Fasting, Force-Feeding, Indivi- dual Autonomy, Informed Consent, Medical Intervention, Consent Özet: Çok çeşitli bağlamlarda görülebilecek olan açlık grevleri, cezaevleri için çok daha önemli sonuçlara yol açar. Çünkü bu kurum- larda sağlık çalışanları etik ile hukuk arasında bir ikilemde kalabilirler. Cezaevlerindeki açlık grevleri, sahadaki uygulamacılar için etik, hu- kuk, tıp, insan hakları gibi pek çok açıdan türlü zorluklar taşımaktadır. Kişinin rızası olmadan vücut bütünlüğüne dokunulamaz. Kişinin rızası ise yapılan müdahaleyi hukuka uygun hale getirecektir. Fakat cezaevinde açlık grevine ilişkin kurallar, bu genel kaideye yönelik bazı istisnalara sahiptir. Bu çalışmada açlık grevinin yönetimi konusunda iç hukuk ve uluslararası standartlar bakımından bir inceleme yapılacaktır. Bu bağlamda 5275 sayılı Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun düzenlemesi ve bunun anayasal çerçeve, AİHM içtihatları ile etik ilkelere uyumu irdelenecektir. Anahtar Kelimeler: Açlık Grevi, Ölüm Orucu, Zorla Besleme, Bi- reysel Özerklik, Aydınlatılmış Onam, Tıbbi Müdahale, Rıza * Dr., Deputy Chief Public Prosecutor of Ankara Batı, suleyman.ozar@adalet.gov.tr, ORCID: 0000- 0003-0934-9594
2 Hunger Strike in the Pendulum of Ethics and Law Introduction Article 82 of Law no. 5275 on the Execution of Penalties and Security Measures (Law no. 5275) lays down the steps required to be taken in cases where a convict or detainee refuses nourishment voluntarily for any reason. Among the most frequent reasons is the protest activities that emerge as a hunger strike. Through this statutory provision, the Turkish legislation intends to make a distinction, in terms of forced intervention with physical integrity, between the hunger strike embarked on by a prisoner and the one embarked on by those who are not deprived of liberty. In this paper through which we will dwell on the causes and consequences of such distinction, hunger strike and/or death fast will be discussed in the light of this statutory regulation that allows for an intervention under certain circumstances. In this sense, we will firstly address the legal nature and ethical basis of hunger strike. We consider that this basis will offer an accurate and reasonable insight into this study on the basis of human dignity and freedom of will. The second section of this paper is intended to provide an explanation as to various issues such as the definition of medical intervention, the conditions of a valid consent and the consent process between patient and physician. In the third and last section, the legal and ethical aspects of medical intervention in case of a hunger strike will be addressed. In this paper, the question of an invention in case of a hunger strike will be examined separately in respect of individuals who are not deprived of liberty and are free and those who are imprisoned. The intervention in case of a hunger strike by prisoners will be discussed on the basis of the distinction between force-feeding and medical intervention. The underlying reason for handling force-feeding and medical intervention under seperate headings is not only our intend to follow the systematic established in the law but also our desire to put a special emphasis on the consideration that force-feeding amounts to an interference with human dignity which can in no way be infringed. This study will also touch upon the controversial position of the statutory arrangements concerning the force-feeding or forced treatment of a convict vis-à-vis medical ethics. Thereby, an answer will be sought to ascertain the lawful step required to be taken by the physician being stuck between the ethics or the law.
3 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR It is natural that hunger strike occurs mostly in the prisons. The aim of the prisoners involving in this modern way of protest, which is an inherent consequence of the major confinement/imprisonment understanding of the modern era, is to make themselves heard outside and to attract attention. The extent to which a hunger strike attracts public attention is dependent directly on the extent to which human life is regarded as a supra-political value in the relevant society. I- HUNGER STRIKE 1. Definition and Scope Hunger strike is a prolonged refusal to receive nourishment, engaged in by individuals so as to protest a certain event or ensure the fulfilment of their certain demands. As set forth in the World Medical Assembly’s Declaration of Malta, hunger strike is a way of protest adopted by persons who have no other opportunity to voice their demands. Hunger striker is the person who voluntarily refuses to eat for a considerable period of time in order to attain his aims by putting public pressure on the administration and who is eligible to form a judgment regarding his health.1 In Türkiye, the stage when hunger strike reaches an irreversible phase is called as “death fast”2, which is also the notion used in Law 1 The Declaration of Malta on Hunger Strikers adopted by the 43rd World Medical Assembly held in Malta in 1991 (“Malta Declaration”): https://www.wma.net/policies-post/wma-declaration-of-malta-on-hunger- strikers/ (date of last pageview: 09.04.2021) 2 As regards the criticism that death fast is an improper notion and used in this way only in the Turkish legislation across the world and a proposal for a more proper notion, “hunger strike to die”, see Ahmet Taşkın “Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun’da Beslenmenin Reddi (Refusal to eat under the Law on the Execution of Penalties and Security Measures)”, Türkiye Barolar Birliği Dergisi, Issue: 62, 2006, p. 239. We are of the opinion that the problem with respect to the “death fast” is not the notion fast but the death. The fact that fast is a religious term does not preclude its being used in other situations where a person refuses to eat. In the Anglo-Saxon literature where the notion hunger strike arose, this notion means the refusal to eat enough to sustain life, whereas the acts where the striker abstains completely from food and fluid intakes or accepts to drink only water are defined as “total fasting” (for an example and definition, see World Health Organisation “Health in Prisons” https:// www.euro. who.int/ data/assets/pdf_file/0009/99018/E90174.pdf). As could be inferred therefrom, death should not be used so as to refer to any type of strike. That is
4 Hunger Strike in the Pendulum of Ethics and Law no. 5275 (Article 82 § 2). An individual may either proceed to a death fast when his hunger strike is of no avail3 or embark on a death fast from the very beginning. There is no distinction between hunger strike and death fast in terms of subject-matter, motive and aim. However, the methods are different. In case of a hunger strike, hunger strikers continue feeding alternately, receiving certain vitamins and various liquids, even to a slight extent, whereas in case of a death fast, they refuse to eat anything or drink water merely to the extent sufficient for maintaining consciousness. Thus, death fast must be regarded as a form of hunger strike. As indicated in medical reports, death takes place within a period lasting 42 to 79 days.4 However, it is a known fact that even at the very beginning of a hunger strike, there may be a life-threatening situation or even death may occur due to insufficient nutrition and sudden complications.5 As inferred from these definitions, hunger strike comprises the following four elements:6 (1) Full or partial refusal to eat, (2) voluntary basis, (3) a specific motivation, and (4) a certain period of time to the extent that will have an adverse impact on health. The condition of having a voluntary basis plays a critical role notably in case of common and systematic protests. In such cases, the question whether the decision to embark on a hunger strike or death fast has been taken by the person concerned individually is, as a matter of course, a controversial issue. It should always be kept in mind because when death is used in naming a strike, this is not only contrary to the definition and motivation of strike but also reflects a language that would, from the very beginning, legitimise any probable intervention therewith. Despite our reservation in this sense, we prefer using “death fast” in this paper in order to be in keeping with the Law. Taking this occasion, we would like to express that in case of an amendment to the Law in question, the notion, death fast, should be replaced with a new notion such as complete/total/absolute hunger strike. 3 Taşkın, p. 239; Özge Sırma, “Açlık Grevi (Hunger Strike)”, Fasikül Hukuk Dergisi, Vol. 4, Issue 26, January 2012, p. 20. 4 Amanda Gordon, “The Constitutional Choices Afforded to a Prisoner on Hunger Strike: Guantanamo”, Santa Clara Journal of International Law, vol. 345, 2011, p. 350. 5 Taşkın, p. 238. 6 Cochav Elkayam Levy, “Facing the Human Rights Challenge of Prisoners’ and Detainees’ Hunger Strikes at the Domestic Level”, Harvard International Law Journal, Vol. 57, 2015, p. 9.
5 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR whether the convict has embarked on the protest on his own free will or against his will. In case of a hunger strike which is not based on free will, the hunger is real, whereas the strike is a pseudo-protest. Therefore, the State is liable to inquire whether the protest is based on the free will of the person concerned. The burden of proof is on the State. If it is found established that the protest is not based on the striker’s free will, it is the State’s duty to intervene with the situation and to protect the striker against the organisations putting pressure on his real will.7 2. History The first hunger strike in the history is shown as the protest of the exiled political convicts in the Czarist Russia at the end of the 19th century, which was of a modern-political nature. However, the time when hunger strikes set the world alight and attracted attention is the very beginning of the 20th century when the women seeking voting rights in England embarked on a strike.8 In London in 1909, a convicted woman named Marion Wallace Dunlop, who had been sentenced to one month’s imprisonment for her failure to pay the fine imposed on her as she had written a passage9 from the 1689 Bill of Rights on the wall of the House of Commons, was released in the 91st hour of her death fast.10 This event was the first sensational case which demonstrated that hunger strikes might be resorted as an effective protest against the administration. In the subsequent period, several hunger strikes drawing world-wide attraction and passing into history took place in Ireland, India, the USA, Spain and South Africa. The hunger strike em7 Şahin Akıncı, “İrade Muhtariyeti İlkesi ve Şahsiyet Hakları Açısından Ötenazi, Açlık Grevi ve Ölüm Orucu (Euthanasia, Hunger Strike and Death Fast in terms of Principle of Party Autonomy and Personal Rights”, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, Prof. Dr. Süleyman Arslan’a Armağan, Issue 6, 1998, p. 755. 8 For the history of hunger strike, see Murat Sevinç, “Bir İnsan Hakları Sorunu Olarak Açlık Grevleri (Hunger Strikes as a Human Rights Issue)”, Ankara Üniversitesi SBF Dergisi, 57-1, 2002, p. 114-116. 9 “It is the right of all citizens to submit a petition to the King, and all commitments and prosecutions for such petitioning are illegal.” https://www.exploringsurreyspast.org.uk/themes/subjects/womens-suffrage/ suffrage-biographies/marion-wallace-dunlop-1864-1942/ 10 https://www.museumoflondon.org.uk/discover/six-things-you-didn’t-knowabout-suffragette-hunger-strikes
6 Hunger Strike in the Pendulum of Ethics and Law barked on by Gandhi in India as a part of his passive resistance is one of the outstanding milestones of the history of hunger strike. 11 In Türkiye, the first known case of hunger strike is the protest of poet Nazım Hikmet in 1950 at the Bursa Prison.12 The common political protests in Türkiye were those taking place at the Metris Prison at the end of 1970s.13 During the death fast embarked on in 1982 for protesting the acts of torture inflicted at the Diyarbakır Prison, four detainees died at the end of the 43rd day of their death fast.14 Following these years, hunger strike has become a type of protest resorted every period, and even in increasing numbers sometimes. In 1996 during which the most systematic and comprehensive protest was organised, the hunger strikes embarked on by 1500 detainees and convicts at 41 prisons located in 38 cities resulted in the death of 12 strikers.15 3. Considerations as to the Legal Nature of Hunger Strike Hunger strike is a way of “expressing” an objection against the State or the Government or the administration. Therefore, the motivation is generally political; however, the striker seeks to take advantage of the society’s supra-political emotions by waiving his most fundamental right, namely the right to a healthy life. The striker also intends to ensure the fulfilment of his/her political demands by means of making the case as a matter of conscience for the State authorities who do not want to be just an onlooker to the death of a person.16 In this sense, the act of the hunger striker, as a form of expression of thought, may be considered to fall into the scope of the “freedom 11 Metin Feyzioğlu, “Açlık Grevi (Hunger Strike)”, Ankara Üniversitesi Hukuk Fakültesi Dergisi, Vol. 43, Issue 1-4, 1993, p. 160. 12 See İstanbul Bilgi Üniversitesi Yayınları, Nâzım Hikmet’in Açlık Grevi (Millete Verdiğim Açık İstidaya Canımı Pul Yerine Kullanıyorum) (Nâzım Hikmet’s Hunger Strike – I Use My Life as a Stamp on the Petition Submitted to the Nation), 2011. 13 Sırma, p. 21. 14 Nalan Ova, “Türkiye’de Köşe Yazılarında Açlık Grevi Tartışmaları (Discussions on Hunger Strike in the Columns in Türkiye)”, Mülkiye Dergisi, 37/3, 2013, p. 107. 15 Turkish Medical Assosiation website “Hunger Strike of May 1996, Clinical Evaluation on Death Fast” https://www.ttb.org.tr/eweb/aclik_grevleri/turkce4. html (last pageview: 10.02.2021) 16 Feyzioğlu, p. 157.
7 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR of expression and dissemination of thought” laid down in Article 26 of the Turkish Constitution.17 The limitations of the right as well as the enjoyment and abuse thereof must be determined according to the provisions of Article 26 and the framework set in Article 13 of the Constitution.18 This acknowledgement is also in accordance with the case-law of the European Court of Human Rights (“ECHR”), which sets forth that freedom of expression enshrined in Article 10 of the European Convention on Human Rights (“Convention”), which applies not only to the content of expression but also to the means of its dissemination.19 There is no controversial issue up to this point: the “problem” comes into play when the hunger strike leads to a life-threatening situation. Some of the jurists argue that in case of a life-threatening situation, it is the State’s duty to put an end to the hunger strike by way of medical intervention with recpect to the striker, whereas some others argue that such a medical intervention would constitute a violation of human rights. We will thoroughly discuss this issue in the subsequent parts of this paper within the scope of the distinction made in terms of prisoners and those who are not deprived of liberty. It should be also considered whether the hunger strikers intend to commit an act of suicide. It should be primarily noted that the right to life is undoubtedly the most basic right that the State is to protect. Moreover, the State must protect this right even against the person himself, when necessary. For this very reason, it is incumbent on the State to prevent persons from committing suicide, and assisting a person to commit suicide constitutes an offence. However, it should be ascertained whether death fast is a suicide and whether the person 17 Feyzioğlu, p. 162. 18 Article 13 of the Constitution reads as follows “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality”. 19 Oberschlick v. Austria, 23.5.1991 (Hasan Tahsin Gökcan, “Hasta Haklarının Bireysel Başvuru Yoluyla Korunması”, Sağlık ve Tıp Hukukunda Sorumluluk ve İnsan Hakları (“Protection of Patients’ Rights through Individual Application Mechanism”, Responsibilities and Human Rights in Health and Medical Jurisprudence), edited by Özge Yücel & Gürkan Sert, Ankara 2018, p. 171.
8 Hunger Strike in the Pendulum of Ethics and Law concerned refuses to eat for ending his life. The replies to these questions will reflect the ideational stance to be adopted in case of an intervention with a hunger strike. A person intending to commit suicide performs this act at a place and time he determines and in a way he chooses. In case of a hunger strike, the striker refuses to eat and receive treatment until he obtains a result regarding the issue that has triggered his protest.20 The motivation is not to end his life but to urge, through public pressure, the respondent to take a certain action, at the cost of his life.21 As hunger strike is not a form of suicide, instigating the commission of this act will not amount to the offence of inducement to suicide.22 Given the acknowledgement that hunger strike is a fundamental right that may be regarded to fall into the scope of merely Article 26 of the Constitution and that the underlying motivation is not “to die”, there will be no room for considerations regarding an abuse of the right to life.23 II- MEDICAL INTERVENTION 1. The Meaning of Medical Intervention Every intervention with physical integrity may not amount to a medical intervention. For instance, the acts such as doing a tattoo on someone else’s body or piercing the ears to wear earring are the forms of non-medical interventions. On the other hand, any medical inter20 Çağatay Üstün & G. Ayhan Aygörmez Uğurlubay, “Sağlık Hukukunda Bireyin Kendi Geleceğini Belirleme Hakkı ve Bu Hakkın Etik Açısından Değerlendirmesi (The Right to Self-Determination under the Health Law and Assessment of this Right in terms of Ethics)”, Fasikül Hukuk Dergisi, Vol. 6, Issue 53, April 2014, p. 32. 21 Hernan Reyes, “Force-Feeding and Coercion: No Physician Complicity”, American Medical Association Journal of Ethics, Volume 9, Number 10, October 2007, s. 703; Sondra S. Crosby & Caroline M. Apovian & Michael A. Grodin, “Hunger Strikes, Force-feeding, and Physicians’ Responsibilities”, The Journal of the American Medical Association, Vol. 298, No: 5, 2007, p. 563; Rıfat Murat Önok, “İnsan Hakları ve Türk Ceza Hukuku Açısından, İnfaz Kurumları ve Tutukevlerindeki Açlık Grevlerine Müdahale Etme Yükümlülüğü ve Bunun İhmalinden Doğan Sorumluluk (Liability to Intervene with Hunger Strikes at Prisons and Detention Centres and Responsbility Arising from Any Failure to do so, in terms of Human Rights and Turkish Criminal Law)”, İKÜ Hukuk Fakültesi Dergisi, Vol. 4, Issue. 1-2, İstanbul, 2005, p. 141. 22 Taşkın, p. 249. 23 Sevinç, p. 162.
9 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR vention is a type of act which is certainly directed against the physical integrity of the person concerned. Therefore, it should be reasonable to make a precise definition of medical intervention before dwelling on the issue of consent to medical intervention. As set forth in Article 4 (g) of the Patient Rights Regulation, medical intervention is “any kind of physical and mental attempt of the medical professionals, which is performed within the limits of medicine, for the protection of health as well as medical diagnosis and treatment of diseases, in accordance with the professional obligations and standards”. The Constitutional Court defines medical intervention as “the acts and activities performed by the medical professionals for the diagnosis, treatment or prevention of diseases”. 24 These definitions are patient- and disease-oriented and also accurate in their specific context. However, they are indeed incomplete in so far they relate to the notion of interference with the right to physical integrity. That is because the underlying aim of medical intervention may not at all times be medical treatment and recovery, and it may pursue various aims regarding inter alia the collection of criminal evidence, scientific research, population planning, plastic surgery, tradition and religion.25 Likewise, there is no hesitation to include the operations such as transfer of tissue and organ for transplantation based on the consent of the person concerned also within the scope of the notion of medical intervention.26 Accordingly, medical intervention should be considered, in the broadest sense, as “any kind of intervention with human body by medical professionals or through biological methods”.27 The professionals author24 Halime Sare Aysal, no. 2013/1789, 11/11/2015, § 52. For an assessment as to the judgment, see Eda Demirsoy Aşıkoğlu, “Kişi Dokunulmazlığı Hakkı Bağlamında Rıza Olmaksızın Yapılan Tıbbi Müdahaleler (Medical Interventions beyond Consent within the context of the Right to Physical Integrity)”, Türkiye Adalet Akademisi Dergisi, Year 9, Issue 35, July 2018, p. 326-328. 25 Özge Yücel, “Sağlık ve Tıp Hukukuna İlişkin Temel Kavramlar ve Özneler, (Basic Concepts and Subjects concerning the Health and Medical Jurisprudence)”, Sağlık ve Tıp Hukukunda Sorumluluk ve İnsan Hakları, edited by Özge Yücel & Gürkan Sert, Ankara 2018, p. 33. 26 İsmail Atak, “Tıbbi Müdahalelerin Hukuka Uygunluk Şartları (Legality Conditions of Medical Interventions)”, Türk Ortopedi ve Travmatoloji Birliği Derneği Dergisi, 19/4, 2020, p. 20. 27 Yücel, s. 33; Burcu G. Özcan & Çağlar Özel, “Kişilik Hakları-Hasta Hakları Bağlamında Tıbbi Müdahale Dolayısıyla Çıkan Hukuki İlişkide Hekimin Hastayı
10 Hunger Strike in the Pendulum of Ethics and Law ised to perform medical intervention are generally physicians; however, it is wrong to say that those who are solely authorised in this sense are the physicians. Any intervention by auxiliary health-care staff such as emergency care technician, health officer, midwife or nurse, sometimes under normal conditions and sometimes as required by the exigency of the situation, also constitute medical intervention.28 2. Elements of Consent to Medical Intervention Consent means the permission granted by a right-holder for the infringement of any of his rights.29 A valid consent that renders any medical intervention lawful shall consist of these four elements: capacity to give consent, subject-matter requiring consent, informed consent and declaration.30 a. Capacity to Give Consent An individual may give consent only when he is the holder of a given legal interest, which is under the protection of a norm, and he has the capacity to express his consent.31 The capacity to express consent shall be exercised by the individual whose right is affected by a given act.32 This capacity, which is an intrinsic value, can in no way be delegated by any other person.33 Everyone having mental capacity is eligible to give consent. An individual’s decision whether to make use of any of his right is a preference inherent in his personal right. That is because this issue is related to the individual’s right to protect and Aydınlatma Yükümlülüğü ve Aydınlatılmış Rızaya İlişkin Bazı Değerlendirmeler (The Physician’s Liability to Inform the Patient and Certain Assessments concerning Informed Consent within the meaning of the Legal Relationship arising from the Medical Intervention in terms of the Personal Rights and Patients’ Rights)’’, Hacettepe Sağlık İdaresi Dergisi, Vol. 10, Issue: 1, 2007, p. 55. 28 Aşıkoğlu, p. 320. 29 Yener Ünver, Ceza Hukukuyla Korunması Amaçlanan Hukuksal Değer (Legal Value Intended to be Protected through Criminal Law), Ankara 2003, p. 976. 30 Özlem Yenerer, Tıbbi Müdahaleye Rızanın Ceza Hukuku Açısından İncelenmesi (Assessment of Consent to Medical Intervention under Criminal Law), İstanbul 2002, p. 26 et seq. 31 Kayıhan İçel, Ceza Hukuku Genel Hükümler (General Provisions of the Criminal Law), İstanbul 2018, p. 394. 32 Nur Centel & Hamide Zafer & Özlem Yenerer Çakmut, Türk Ceza Hukukuna Giriş (Introduction to the Turkish Criminal Law), İstanbul 2020, p. 333. 33 İçel, p. 397; and Centel & Zafer & Çakmut, p. 337.
11 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR improve his own personality and identity, right to self-determination, in other words his right to respect for his/her personal autonomy.34 If the person concerned is a minor or an interdict, the capacity to give consent shall belong to the parent or guardian (Article 24 § 1 of the Regulation on Patients’ Rights).35 b. Subject-matter requiring consent In order for an act infringing a right to be considered lawful in terms of consent, there must be primarily a right that could be enjoyed.36 In other words, if a person is entitled to exercise any of his rights, it means that he shall have the capacity to give consent to the infringement of the given right. In that case, the act to which consent has been granted shall not constitute an unjust treatment.37 In Article 26 § 2 of the Turkish Criminal Code (“TCC”) titled “Exercise of a right and consent of the person concerned”, it is set forth: “No 34 Özge Yücel, “Medeni Hukuk Bakış Açısıyla Tıbbi Müdahalenin Hukuka Uygunluğunun Koşulları (Conditions of Lawfulness of Medical Intervention form the Perspective of Civil Law), Sağlık ve Tıp Hukukunda Sorumluluk ve İnsan Hakları, edited by Özge Yücel & Gürkan Sert Ankara 2018, s. 197. 35 The issue of parental consent comes into play in respect of the minor’s vaccination. Article 6 § 2 of the European Convention on Human Rights and Biomedicine, titled “Protection of persons not able to consent”, Article 70 § 1 of Law no. 1219 on the Performance of the Art of Medicine and Dentistry and Article 24 § 1 of the Regulation on Patients’ Rights explicitly necessitate the authorisation by his or her representative in case of any medical intervention with a minor. In its judgment, the Constitutional Court found a violation, recalling that the consent to the vaccination of babies could be granted merely by the parents (Halime Sare Aysal, 2013/1789, 11/11/2015). On the other hand, it must be discussed whether this situation is in keeping with the best interest of the child, the principle adopted by the 1959 UN Declaration of the Rights of the Child and the 1989 UN Convention on the Rights of the Child. Likewise, as set forth in Article 41 § 2 of the Constitution, the State is liable to protect “especially mother and children”. In that case, it is not always easy to certainly accept the child’s parents as the sole authority in this sense. 36 Centel & Zafer and Çakmut, p. 335; Nevzat Toroslu, Ceza Hukuku Genel Kısım (Criminal Law, General Section), Ankara 2019, p. 189; Mahmut Koca and İlhan Üzülmez, Türk Ceza Hukuku Genel Hükümler (General Provisions of the Turkish Criminal Law), Ankara 2017, p. 291; Doğan Soyaslan, Ceza Hukuku Genel Hükümler (General Provisions of the Criminal Law), Ankara 2016, p. 374. Timur Demirbaş, Ceza Hukuku Genel Hükümler (General Provisions of the Criminal Law), Ankara 2020, p. 339; İzzet Özgenç, Türk Ceza Hukuku Genel Hükümler (General Provisions of the Turkish Criminal Law), Ankara 2014, p. 347. 37 Centel & Zafer and Çakmut, p. 332.
12 Hunger Strike in the Pendulum of Ethics and Law punishment shall be imposed due to an act committed with the consent given by the person concerned with respect to any of his rights that he is able fully to exercise”. For instance, no one has the capacity to take an action with respect to his/her right to life. An unlimited exercise of this right or ending someone’s life by choice is not approved in legal and ethical terms.38 Therefore, the consent given by the person concerned shall be null and void. Assisting a patient, who is suffering an unrecoverable disease, in ending his/her life so as to cease sufferings or in cases where he/ she wants to die of own free will shall even amount to the criminal act of deliberate killing.39 This instance naturally brings to mind the act of euthanasia and the associated arguments.40 38 Koca, Mahmut, İntihara Yönlendirme Suçu (TCK m. 84) (Offence of Encouraging Suicide (Article 84 of the Turkish Criminal Code), Ceza Hukuku Dergisi, Vol. 5, Issue: 12, 2010, p. 20. 39 Demirbaş, p. 342; M. Emre Tulay, “Türk Ceza Hukukunda İntihara Yönlendirme Suçu (Offence of Encouraging Suicide in the Turkish Criminal Law)”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Vol. 26, Issue: 2, December 2020, p. 827. 40 In cases where the death of a patient is caused with the direct and active involvement of the physician but with the patient’s consent, it amounts to active euthanasia. When it is caused as the physician remains inactive, that is to say due to physician’s negligence, passive euthanasia comes into play (Muharrem Özen & Meral Ekici Şahin, Ötanazi (Euthanasia), Ankara Barosu Dergisi, Issue: 4, 2010, p. 17). There is no clarity in the European Convention on Human Rights as to whether euthanasia may be regarded as a right (Sibel İnceoğlu, İnsan Hakları Bakımından Ötanazi (Euthanasia in terms of Human Rights), Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. III, Issue: 2, Y. 2006, p. 292). It should be noted that as regards active euthanasia, the ECHR adopts an approach that predominates the right to life as well as sacred nature and inviolability of life over the party autonomy. In its judgments in the cases of Pretty v. United Kingdom, Nicklinson and Lamb v. United Kingdom and Haas v. Switzerland, the ECHR adopted an approach in line with the above-mentioned evaluation. Besides, it is always possible for the countries to legalise the active euthanasia in their domestic law, and such a regulation will comply with the human rights standards. As a matter of fact, it should have been separately considered whether the relative or health-care officer who unfortunately puts an end to the life of a person demanding to be killed due to his sufferings is faulty given the appeal and pain of the latter (Özgenç, p. 348, footnote 563). Indeed, Article 140 of the Ministerial Bill concerning the Turkish Criminal Code no. 5237, titled “To Cease Sufferings”, lays down such a regulation: “A person who has caused death of a patient suffering from an incurable and painful disease upon the latter’s insistent demands when he is fully conscious and reasonably controls his motions and solely for the purpose of ceasing the patient’s sufferings
13 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR shall be sentenced to imprisonment from one year to three years.” This provision, which was extracted from the text at the Parliamentary Commission on Justice, had been formulated in a way that would address both active and passive forms of euthanasia. Active euthanasia has been legalised in the Netherlands, Belgium, Luxembourg, Italy and Canada as being considered to fall into scope of the human dignity (Kutluhan Bozkurt, “Ötanazi ve Destekli İntihar-Uluslararası Düzenlemeler ve Farklı Ülkelerdeki Uygulamalar (Eeuthanasia and Assisted Suicide – International Regulations and Practices at Different Countries”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. 14, Issue: 2, December 2017, p. 241-270). It however appears that the countries adopt a more flexible approach regarding passive euthanasia that occurs through assistance by negligence. For instance, in Germany which bans active euthanasia (“killing upon request”) through a regulation, passive euthanasia is permitted (Tülay, p. 829). In its judgment dated 10.02.1993 in the case of Widmer v. Switzerland, the ECHR noted that Article 2 of the Convention cannot be construed in a way that necessitate the criminalisation of the acts amounting to passive euthanasia (Gökcan, p. 164). In Türkiye, passive euthanasia is also prohibited through Article 13 of the Regulation on Patients’ Rights. However, Article 5 of the European Convention on Biomedicine, to which Türkiye is a party, sets forth that a patient is entitled to withdraw, at any time, the consent he has given to his treatment and does not exclude passive euthanasia from the scope thereof. It is therefore argued that Article 13 of the Regulation shall not be applicable (Barış Atladı, “Tedaviyi Ret Hakkının Sınırları Açısından Ölme Hakkı (Right to Die in terms of the Boundaries of the Right to Refuse a Medical Treatment)”, Güncel Hukuk Dergisi, February 2008, p. 38). On the other hand, it is also argued that “the patient’s right to refuse a medical treatment”, which is already enshrined in the Turkish law, indeed amounts to passive euthanasia (Korkut Kanadoğlu, ‘‘Türk Anayasa Hukukunda Sağlık Alanında Temel Haklar (Basic Rights relating to Health in the Turkish Constitutional Law’’, Türkiye Barolar Birliği Dergisi, Vol. 119, 2015, p. 32). According to Ünver, the acts that are called as passive euthanasia and that indeed refer to the exercise by a patient of his right to refuse medical treatment may be considered to be lawful under Article 26 of the Turkish Criminal Code ((Ünver, “Türk Tıp Hukukunda Rıza (“Consent in the Turkish Medical Jurisprudence)”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. III, Issue: 2, 2006, p. 264). Ekici Şahin also considers that in case of passive euthanasia, the physician cannot be subject to a punishment as the patient is entitled to refuse medical treatment; and that according to Article 14 of the Medical Deontology Regulation, the physician’s act shall not constitute an offence. (Meral Ekici Şahin, Ceza Hukukunda Rıza (Consent in Criminal Law), Ankara Üni. Doktora Tezi, Ankara 2010, p. 258). Besides, the consideration to the effect that in case of passive euthanasia, a sentence should be imposed not for the act of deliberate killing but assisting someone in committing suicide (Tulay, p. 830) should be also taken into consideration. As set forth by Soyaslan, in case of euthanasia, the judge should apply the provisions regarding discretionary mitigation under Article 62 of the Turkish Criminal Code by taking into consideration the victim’s sufferings and consent (Soyaslan, Genel Hükümler (General Provisions), p. 160). However, all these opinions which are intended for defending the conscientious
14 Hunger Strike in the Pendulum of Ethics and Law c. Informed Consent The right to informed consent is the key difference between declarations giving consent to medical intervention and the expressions of consent specific to non-medical intervention. Due to the technical and sophisticated nature of medical intervention, the consent sought for medical interventions must also require sufficient elucidation. The person to declare his/her consent should be fully aware of the scope and content of the act or action to which he consents. Thus, as regards medical interventions, the notion “informed consent” comes into play in addition to the general conditions of a valid consent. In the very essence of volunatarily enduring the infringement of a right, there are the right to self-determination and the principle of human dignity.41 At this stage, informed consent enables a person to freely form his/her judgment about his own life, body, future and to determine his/her own destiny.42 Therefore, informed consent is a right that serves the purpose of protecting not only free will but also physical integrity.43 In this sense, it is set forth in Article 5 of the European Convention on Human Rights and Biomedicine44 that the consent to be given to a justification underlying the passive euthanasia remain insufficient vis-à-vis the applicable Turkish Criminal Code and cannot eliminate the need for a separate statutory arrangement that pay regard to the tortuous nature of this act, its arguable nature and anti-social degree. It is still uncertain whether the patient’s right to refuse medical treatment amounts to passive euthanasia. We consider that, within the framework of the patient’s right to medical treatment, there is a need, in Turkish Criminal Code, for a ground legalising merely passive (indirect) euthanasia. 41 Gülsün Ayhan Aygörmez, “Hukuki Kurum Rızanın, Tıp Ceza Hukukunda Geçerli Olarak Kurulması (Valid Functioning of Consent, as a Legal Institution, in the Medical Criminal Law”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. 6, Issue: 2, December 2009, p. 138. 42 Yücel, “Medeni Hukuk Bakış Açısıyla… (… from the perspective of Civil Law)”, p. 197. 43 Munise Gülen Kurt, “Tıbbi Müdahalelerde Aydınlatılmış Onam (Informed Consent in Medical Interventions)”, Türkiye Barolar Birliği Dergisi, Issue: 146, 2020, p. 199. 44 “The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine”, which was open for signature by the Council of Europe on 4 April 1997, was ratified by the Turkish Parliament on 3 December 2003 and took effect upon being promulgated in the Official Gazette dated 20 April 2004. This Convention comprehensively dealing with human rights issues in the health-care services, has a direct bearing on the Turkish domestic law pursuant to Article 90 of the Constitution.
15 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR medical intervention must be genuinely free and informed. According to the Convention, such enlightenment must be made “in advance” and provide “necessary information about the purpose and nature of the intervention as well as its probable outcomes and risks”.45 Informed consent, a highly important procedure also under the Codes of Ethics of Medical Science issued by the Turkish Medical Association,46 means that the person concerned be fully and properly informed of all facts concerning his/her situation in order to enable him/her to form a judgment about the initiation, continuation, suspension or refusal of any medical intervention.47 45 The provisions regarding informed consent in the Turkish legislation include but are not limited to: Article 7 of Law no. 2238 on the Removing, Storage, Grafting, and. Transplantation of Organs and Tissues; Article 31 § 1 of the Regulation on Patients’ Rights; Article 14 § 2 of the Medical Deontology. Article 70 of Law No 1219 on the Method of Execution of the Medicine and Medical Sciences also make an implicit reference to the physician’s liability to inform the patient (Özcan & Özel, p. 59). 46 Article 26 of the Codes of Ethics of Medical Profession, titled “Informed Consent”, reads as follows: “The physician shall inform the patient about the latter’s state of health and the diagnosis in question, the method of the recommended treatment, prospect of success and duration of this treatment, the risks involved in the recommended treatment, the administration of the prescribed drugs and their probable side effects, the probable outcomes if the patient refuses the recommended treatment, as well as about any alternative treatment options and risks. The informing process should be in accordance with the cultural, social and mental circumstances of the patient. The information should be provided in a way that will be easily comprehended by the patient. The patient himself shall designate any other persons who will be informed of his disease. Any health-related action may be taken only upon the free and informed consent of the person concerned. If the consent is obtained under pressure, threat, through misinformation or deception, it shall be deemed null and void. In emergencies or in cases where the patient is under age or he is unconscious or he is not able to form a judgment, the authority to give consent shall be his legal representative. If the physician considers that the legal representative refuses to consent with malicious intent and such refusal endangers the patient’s life, the situation must be notified to the judicial authorities so as to obtain consent. If it is not possible to notify the situation to the judicial authorities, the physician shall consult with another physician, or shall take an action merely for the purpose of saving the patient’s life. In case of an emergency, it is at the physician’s discretion to make the necessary interventions. As the diseases, the treatment of which is necessitated by laws, poses a risk to public health, the necessary treatment shall be performed even in the absence of the consent of the patient or his legal representative. The patient may at any time withdraw his informed consent he has already given.” (https:// www.ttb.org.tr/mevzuat/index.php?option=com_content&id=65& Itemid=31) (date of last pageview: 11.04.2021). 47 Sibel İnceoğlu, Ölme Hakkı (Right to Die), İstanbul 1999, p. 160.
16 Hunger Strike in the Pendulum of Ethics and Law The person informed about the given medical intervention is entitled “to refuse, or request the suspension of, the medical treatment which he will intend to undergo or are undergoing”, save for the circumstances prescribed by law (Article 25 of the Regulation on Patients’ Rights). Accordingly, through this provision, the Regulation on Patients’ Rights has gained a position that secures respect for the patient’s personality in terms of his right to refuse medical treatment and is in keeping with the contemporary developments.48 d. Expression of consent The person concerned must express his will in any way, either explicitly or implicitly, or either in writing or orally.49 Unless required by a special arrangement, the form in which consent is expressed does not matter.50 All in all, the given act must have been committed upon the expression of consent. The consent expressed following the performance of an act does not legalise the act. The consent must be expressed, at the latest, during the performance of the given act.51 3. Medical Interventions of Lawful Nature even without Consent In principle, any intervention with physical integrity requires consent. Article 17 § 2 of the Constitution, which sets forth “The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law”, lays down both the rule and the exemptions thereto. Accordingly, there are two exceptions to the necessity of consent in case of a medical intervention: Medical necessity and any case prescribed by law. If there is a medical necessity and/or a case prescribed by law, medical intervention may be performed without seeking consent. Article 75 § 1 of the Code of Criminal Procedure no. 5271 (“CCP”), which allows for performing internal body examination and collect48 Sevinç, p. 121. 49 Koca & Üzülmez, p. 293. 50 Toroslu, p. 190. For instance, the validity of the consent sought for organ transplantation is dependent on its compliance with the conditions laid down in Law no. 2238 on the Removing, Storage, Grafting, and. Transplantation of Organs and Tissues, which is dated 29.05.1979. 51 Centel & Zafer & Çakmut, p. 335.
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