37 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR posing a risk is legally allowed.117 Accordingly, within the extent of risk allowed by law, any liability resulting from a medical intervention performed with due diligence for treatment is not objectively imputed on the physician.118 At the time when the convict regains consciousness (and there is no life-threatening situation), Article 82 of Law no. 5275 must no longer be applied, and Articles 24 and 25 of the Regulation on Patients’ Rights must be fully applied. Therefore, if the convict refuses medical treatment, it will be necessary to discontinue the treatment pursuant to “patient’s” veto power in medicine.119 If the discontinuation of treatment results in death, the physician cannot be objectively held responsible on account thereof. Besides, it is not true to attribute any fault to the administration on the ground that there has been a violation of the right to life. It is necessary and sufficient for the State to take the necessary measures for saving the convict’s life.120 Medical intervention with respect to those who are on a death fast is an outcome of the relation between detainee/convict and the State that involves special care, protection and discipline.121 This relation will be at stake also for the convict/detainee receiving treatment in a hospital. However, if the detainee/convict is released under Article 16 § 2 of Law no. 5275122, Article 82 of the same Law will be no longer applicable to the striker, and the impugned act will not be different than a hunger strike or death fast embarked on by free persons. rity Measures Law), Ankara 2020, p. 234-238. 117 Centel & Zafer & Çakmut, p. 284. 118 Centel & Zafer & Çakmut, p. 284. 119 At this point, there is a probability for occurrence of vicious circle. That is to say, when the convict, being fully conscious, refuses medical treatment will then lose his consciousness, and therefore, he may once again undergo a medical treatment. Accordingly, the cycle of refusal -losing consciousness – medical treatment – regaining consciousness – refusal may be repeatedly at stake. The only way in the Turkish legal order to avoid such vicious circle is the suspension of execution of sentence or discontinuation of detention. 120 ECHR’s judgment Horoz v. Türkiye, (no. 1639/03, 31.03.2009). 121 Barış R. Erman, Tıbbi Müdahalelerin Hukuka Uygunluğu (Lawfulness of Medical Interventions), Ankara 2003, p. 199. 122 “In case of other diseases, the execution of the sentence is continued at the wards allocated for prisoners in the official health-care institutions. However, the execution of the imprisonment sentence constitutes, even under these circumstances, a certain risk to the prisoner’s life, the execution of his sentence shall be suspended until recovery.”
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