29 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR with use of disproportionate force, the impugned act will amount to torture and ill-treatment. According to the report, force-feeding not only infringes the right to health of the person concerned but also amounts to the violation of the ethical principles in respect of the physician taking a role in the force-feeding process.92 In fact, it should be questioned whether force-feeding would, by its very nature, infringe human dignity in that human dignity is at the core of the law. Is it possible to conduct the force-feeding process without infringing the human dignity, when the person concerned is conscious, by disregarding his preference that is strictly based on his own will? In consideration of the minimum standards set by the ECHR, it may be concluded that Article 82 § 1 of Law no. 5275 does not fall foul of the Convention. However, when human dignity comes into play in this context, it should be acknowledged that it is not so easy to properly apply this statutory provision and similar ones. We therefore consider that it is partly this difficulty that makes the tendency -whereby, in practice, the striker who cannot be persuaded is taken to the hospital (as a subsequent stage) instead of being force-fed at the prison- predominant. We argue that this tendency in practice must be incorporated into the legislation as a provision and that the force-feeding of a prisoner, who is fully conscious, must be completely abandoned. In cases where it is found established that the prisoner is fully conscious and insists on his decision to refuse nourishment with his/her free will, the desire and will of that person should be respected. Therefore, Article 82 § 1 of Law no. 5275 should be amended accordingly.93 3. Forced Medical Treatment (Article 82 § 2 of Law no. 5275) a. Legal Framework Article 82 § 2 of Law no. 5275 sets forth “Regarding any convicts who refuse nourishment and carry on a hunger strike or “death fast” and who are diagnosed, by the institution physician, to be in a life-threatening situation or 92 Pages 88 and 94 of the Report. The report, titled “Situation of detainees at Guantánamo Bay”, is available at https://undocs.org/E/CN.4/2006/120 (08.02.2021). 93 In the same vein, Ünver, ‘‘Türk Tıp Hukukunda Rıza (Consent in the Turkish Medical Jurisprudence)’’, p. 284.
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