38 Hunger Strike in the Pendulum of Ethics and Law In this context, in practice, there are some cases where the person on a death fast is released (if he is a detainee, through conditional bail123; and if he is a convict, through a decision suspending the execution of sentence) when his/her state of health deteriorates to a critical extent. In its relevant judgment, the Court of Cassation also ordered, pursuant to Article 16 § 2 of Law no. 5275, “the suspension of the execution of the sentence until recovery” regarding a prisoner on remand who refused medical treatment despite the high life-threatening risk.124 This 123 We are of the opinion that the law-maker, incorporating the opportunity of conditional bail in case of a fatal disease into Article 109 of the Code of Criminal Procedure through Law no. 7242 and dated 14.4.2020, needs to recall this procedural practice that has been already applicable. This provision in question reads as follows: “(4) it may be decided that the suspects who are found, pursuant to Article 16 § 3 of Law no. 5275 on the Execution of Sentences and Security Measures, dated 13.12.2004, to be unable to maintain his life alone under the conditions of the penitentiary institution on account of a fatal disease or a disability he suffers and the female suspects, who are pregnant or who have given birth in the last six months be granted conditional bail, instead of being detained on remand.” 124 “A report was issued on 02.09.2020 by the Chief Physician’s Office of the İstanbul Kanuni Sultan Süleyman Training and Research Hospital in reply to the letter of the same date, which sought information as to whether Aytaç Ünsal, a prisoner on remand pending appeal at the time when his case was under appeal examination, was still on a hunger strike, whether he consented to a medical treatment, whether he was in a life-threatening situation, and as well as about his current state of health. In this report, it is noted that the patient, who has been on a hunger strike for 212 days, refuses every kind of intervention for both medical diagnosis and treatment; that however, given the patient’s state of health and literature data, it is considered that his life is at risk and he is under the risk of a sudden cardiac arrest due to electrolyte imbalance resulting from hunger strike. The provision allowing for the suspension of the execution of sentence due to a life-threatening disease, which is laid down in Article 399 § 2 of Law no. 1412 on Criminal Procedure, is embodied in the same way in Article 16 of Law no. 5275. It has been observed that the prison administration has taken all necessary measures and thus referred the patient to a fully-equipped hospital for treatment so as to ensure the accused to suffer from hunger strike to a minimum extent, but as he refused medical treatment, his state of health deteriorated; and that the accused going on the hunger strike by refusing all recommendations for termination of hunger strike and for a medical treatment is still in a life-threatening situation. The law-maker, which does not make a distinction as to whether the life-threatening disease, which posed an obstacle to his continued placement in the prison, has been due to the own fault of the accused or due to natural causes, allows for the suspension of the execution of sentence until recovery. In the light of these explanations and previous judicial practices, it has been decided that as Aytaç Ünsal’s continued placement in the prison or the special ward in a hospital allocated for prisoners endangers his life, the execution of his sentence would be suspended under Articles 16 § 2 and 116 § 1 of Law no. 5275 and he would be granted conditional bail…” (Judgment no. E. 2020/1499 K. 2020/3679 and dated 03/09/2020, delivered by the 16th Criminal Chamber of the Court of Cassation).
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