23 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR We are of the opinion that this statutory arrangement, which completely excludes hunger strike from the scope of a form of the freedom of expression for prisoners, is contrary to the requirements of a democratic society and the proportionality principle. Rendering such a decision, the Constitutional Court has also contradicted with its own acknowledgement that the hunger strikes at penitentiary institutions may be a form of freedom of expression.79 Undoubtedly, freedom of expression is not an absolute right. Besides, as regards the prisoners, the pertaining restrictions may be more different and excessive. However, the statutory arrangement in question goes beyond a restriction, denying the freedom of expression from the very beginning.80 If the reintegration of the prisoner into the society is one of the underlying aim of the execution of imprisonment sentences, the question to which extent the democratic activities, which are an aspect of the freedom of expression, will be restricted should be subject to a rights-oriented assessment.81 c. Article 82 of Law no. 5275 Article 82, titled “Refusal of food and drinks by the convict”, of Law no. 5275, which sets the basic regime with respect to convicts’ hunger strike, is formulated in line with the approach that does not classify this act as a right. This provision to be comprehensively discussed below is an example of the exception, “prescribed by law”, which is laid down in the Constitution with respect to the principle of inviolability 79 Mehmet Ayata, § 24; Kahraman Güvenç § 31. 80 The ECHR’s judgment in the case of Kara v. Türkiye (no. 22766/04, 30 June 2009) should be noted in this context. In the impugned incident taking place on November 2000, the Anatolian Association for Solidarity with Families of Prisoners (Anadolu Tutuklu ve Hükümlü Aileleri Yardımlaşma Derneği) called its members to embark on a hunger strike for an indefinite period of time in order to support the prisoners on a hunger strike. By its decision of 27 December 2002, the domestic court convicted the applicant for organising a hunger strike and distributing brochures, which constituted the offence of performing an act not included in the Association’s Charter. The applicant’s imprisonment for a term of six months was converted to a fine. Finding the sentence imposed on the applicant not necessary in a democratic society, the ECHR found a violation of Article 10 of the Convention. 81 For a study providing a comprehensive assessment as to the issue, see Çiğdem D. Sever, “Hapishane İdarelerinin Yetkileri ve Hapsedilen Haklarının Sınırı (Powers of the Prison Administrations and Limits of the Rights of the Prisoners)”, Türkiye Barolar Birliği Dergisi, Issue: 122, 2016, p. 141-192.
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