22 Hunger Strike in the Pendulum of Ethics and Law encouraging, convincing or directing a prisoner or person under arrest to embark on a hunger strike or death fast shall constitute the criminal act of preventing feeding. Paragraph 3 thereof also lays down that in cases where the prevention of feeding causes an aggravated intentional injury or death, an additional liability shall be incurred pursuant to the provisions regarding intentional injury or intentional killing. As is inferred, hunger strike has been criminalised, like the act of suicide, not in terms of the very conduct of the striker himself, but due to the inducement of others to engage in such a strike. In this sense, it appears that the law-maker regards the hunger strike as one of the forms whereby the striker makes full use of his right to life. b. Article 40 of the Law on the Execution of Penalties and Security Measures The most distinct indication that the hunger strike is not considered to fall into the scope of any rights and freedoms is Article 40 § 2 (g) of Law no. 5275 on the Execution of Penalties and Security Measures (Law no. 5275).76 Pursuant to this provision, a hunger strike embarked on by a convict or detainee is an unlawful conduct that entails the disciplinary sanction of “preventing the convict or detainee from participating in certain activities”. At the very moment when the prisoner embarks on a hunger strike, he shall be deemed to have committed this disciplinary offence. In individual applications lodged with the Constitutional Court due to the disciplinary sanctions imposed pursuant to this provision, the Constitutional Court found no violation of the freedom of expression.77 Stressing the State’s obligations to maintain security and order at penitentiary institutions as well as to protect the health of prisoners, who are to be incarcerated at these institutions that are under the absolute control of the State, the Constitutional Court has also noted that his incarceration imposes certain responsibilities on the convict.78 Accordingly, Article 40 of Law no. 5275 is regarded as a ground justifying restriction within the framework of Article 26 § 2 of the Constitution. 76 Çelik, p. 45. 77 Kahraman Güvenç, no. 2016/15659, 23/6/2020, Mehmet Ayata, no. 2013/2920, 7/7/2015. 78 Kahraman Güvenç, § 37-39.
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