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.
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