34 Hunger Strike in the Pendulum of Ethics and Law it is suggested that if the hunger striker still intends to continue his/her strike after his/her life is saved and he/she regains his/her competence to form a judgment, his/her will must be respected.106 As is seen, the approach adopted by the Turkish Medical Association regarding the force-feeding of prisoners are in keeping with the international instruments (notably the Tokyo and Malta Declarations).107 c. May the pertaining statutory provision be disregarded? Given the statutory provision which necessitates medical intervention with respect to the convicts and detainees who are on a hunger strike and who are currently in a life-threatening situation, the requirements of medical ethics run counter to the provisions of domestic law. In that case, the physician may disregard an applicable statutory provision only when the State is a party to a Convention that directly refutes this provision. At this very moment, there is no superior normative provision that would set aside the application of the relevant law. In this framework, we should also note that we disagree with the argument that the provisions in Law no. 5275 have become unlawful as the European Convention on Biomedicine, a part of Turkish domestic law, embody different provisions108. The provisions of this Convention have no direct bearing on the medical intervention with respect to the convicts and detainees on hunger strike. The Law no. 5275 may be found to fall foul of ethical standards and criticised as it in its current form sets aside the will of the person concerned.109 However, these criticisms cannot undoubtedly have the capacity to change a statutory rule within the legal order that is to be 106 Turkish Medical Association, “Açlık Grevleri ve Hekimler Klinik, Etik Yaklaşım ve Hukuksal Boyut (Hunger Strikes and Physicians: Clinical and Ethical Approach and Legal Aspect)” Manual, Ankara 2012, p. 19. 107 Serkan Cengiz, “Mahpusların Açlık Grevi ve Zorla Besleme Parodoksu Işığında Hekim Sorumluluğu (Physician’s Responsibility in the light of the Paradox of the Prisoners’ Hunger Strike and Force-Feeding)”, Türkiye Barolar Birliği Dergisi, Issue 88, 2010, p. 431. 108 Cengiz, p. 437; Yücel, “Medeni Hukuk Bakış Açısıyla… (… from the perspective of Civil Law)”, p. 200. 109 For certain criticisms in this sense, see Yener Ünver, “Hekim ve Hasta Haklarının Ulusal ve Uluslararası Hukuk Açısından Konumlandırılması (Assessment of Physicians’ and Patients’ Rights in terms of National and International Law)”, Ceza Hukuku Dergisi, Y. 2, Issue: 1, April 2007, p. 208 et seq.
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