36 Hunger Strike in the Pendulum of Ethics and Law In the event where the hunger striker’s life is at risk or he losses his consciousness, the physician must initiate the medical treatment without the consent of the striker being sought, pursuant to Article 82 § 2 of the Law no. 5275.113 The failure to engage in medical intervention with the convict, who is in a critical state of health, even in line with his current or previous explicit will, may give rise to the offence of intentionally causing death by negligence. The non-intervention may be considered to constitute a direct and active involvement of the physician in cases where, as set forth in Article 83 of the TCC, “the physician has an obligation, deriving from law or a contract, to perform certain acts with his direct and active involvement and has previously endangered the life of another person due to his behaviour”. In this sense, a statutory regulation or a convention provision creates a form of guarantor relationship between patient and physician.114 The guarantor underlying the physician’s obligation to make medical intervention with respect to a hunger striker is Article 82 § 2 of Law no. 5275. In cases where the convict, who is unconscious, loses his life in spite of the medical intervention, the physician will incur no responsibility. Moreover, even if the death results from the risky medical intervention, no responsibility should be placed on the physician. That is because every health-care service involves, by its very nature, risks, and the obligation incumbent on the physician in this sense is confined to the prevention of any increase in the risk.115 This incident may be explained through the theory of “objective imputation”, which prevents the imputation of criminal liability on the offender despite the causal link, and the hypothesis of “permissible risk”, a standard inherent in the former theory.116 Permissible risk is the maximum extent to which 113 For an assessment to the effect that the right to self-determination should be enjoyed not merely by free persons but by everyone and that accordingly, the physician should not be obliged to make a medical intervention, see Ömer Çelen, “Ölüm Yardımı Açısından Hekimin Sorumluluğu (Physician’s Liability in terms of Assistance to Die)”, Erzincan Üniversitesi Hukuk Fakültesi Dergisi, Vol. II, Issue. 3- 4, 2007, p. 68. 114 Veli Özer Özbek & Koray Doğan & Pınar Bacaksız, Türk Ceza Hukuku Özel Hükümler (Special Provisions in the Turkish Criminal Law), Ankara 2020, p. 168. 115 Hakan Hakeri, Tıp Hukuku (Medical Jurisprudence), Ankara 2012, p. 191. 116 As regards the “permissible risk”, which prevents the attribution of any liability due to an act performed, see Bahri Öztürk & Mustafa Ruhan Erdem, Uygulamalı Ceza Hukuku ve Güvenlik Tedbirleri Hukuku (Applied Criminal Law and Secu-
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