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
RkJQdWJsaXNoZXIy MTQ3OTE1