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TO THE ATTENTION OF ISTANBUL 37th CRIMINAL COURT
to be sent to
ISTANBUL 38th CRIMINAL COURT

CAREFUL EXAMINATION DEMANDED
DUE TO HIGH LEVEL OF VITAL RISK

FILE & DECISION : 2018/84 E – 2019/125 K

DEFENDANT            :  Ebru TİMTİK
Aytaç ÜNSAL

LAWYER                   :

SUBJECT                  : This letter states our objection to the rejection of the demand for release of our clients Ebru Timtik and Aytaç Ünsal, despite the report from Forensic Medicine Institution that they cannot stay in prison, upon our demand for transfer to forensic medicine and release due to the vital risks emerging from longterm hunger.

EXPLANATIONS    :

Our colleagues Aytaç Ünsal ve Ebru Timtik assert that in the lawsuit by your court has not involved a fair trial, the right to defense has been violated and the decision is unacceptable, and they have started hunger strike and turned their action to deathfasting as of 5 Nisan 2020.

The release of the clients is demanded from the 37th Criminal Court of Istanbul, the first order court, based on the article 15 of the legislation that was approved by the Parliament on 14/04/2020 and was announced on the Legal Gazette on 15/04/2020, regarding prison precautions and changes in some laws: “(4) If a suspect, as determined in article 16 paragraph 3 of law 5275 regarding Execution of Penalty or Security Precautions, does not have the conditions to survive alone in prison, due to a health problem or disability, or in the case of pregnancy or within 6 months of having given birth, the arrest can be replaced by a probation. In the case that a sentence has been issued and the sentence has been appealed, the probation can also be decided by the first order court that issued the sentence, after examining the national judicial database records.”.

The clients have been transfered by the court to the forensic medicine institution, to be examined for their possibility of remainig in the prison conditions. Upon the examinations of the forensic medicine institution, it has been reported that “the defendants cannot stay in prison due to their health conditions, it is required to install them in hospital and provide the medical attention”.

By the committee that is evidently assigned temporarily to the 37th Criminal Court of Istanbul, the report of the forensic medicine has been made subject to the evaluation that “at this stage the medical attention requested by the report can be provided by the prison administration”.

-1-

According to law, The Court of First Instance does not have the authority to make a ruling besides a judicial control decision based on the report of the institution of forensic medicine

Legal regulation states that: “In the case of a given conviction and an appeal to said conviction, The court of first instance that has ruled on the conviction may make a judicial control decision by reviewing the records of the national judiciary informatics system (UYAP).” On a case which is under the review of the Court of Cassation, the authority of the Court of First Instance is limited to making a judicial control decision. The decision by the Court of First Instance of taking the clients to the hospital is outside of the clearly defined limits of their authority.

-2-

The Court Making Two Different Decision In The Same Situations and Reports with the same content is completely against the law!

On a similar instance, because of health issues due to an extended period of hunger  37th Istanbul Criminal Court  had determined on the 21/02/2020 report of the Republic of Turkey Ministry of Justice Directorate of Institution of Forensic Medicine that due to health complications that has developed due to an extended period of hunger, further stay under prison conditions is not appropriate for his health. Therefore, the prisoner was set to be released for his case, numbered 2020/28 E. The Institution of Forensic Medicine´s report with the same content has been presented as attached.

-3-

Considering the Existing Pandemic, The Transfer of the Clients to a Hospital without Their Will Presents a Greater Risk

Transferring the Clients to a Hospital without their consent comes with a huge risk considering the fact that hospitals´ environment in these times is not suited for individuals with weak immune systems. It has been determined in the 16/03/2020 report of Ümraniye Training and Research Hospital that the stay of patients with severely weakened immune system due to a long period of hunger in hospitals is risky due to the SARS-CoV2 pandemic and other hospital infections. With the mandate numbered 14500235-403.99 by the Ministry of Health with the topic of “Pandemic Hospitals” private and public hospitals have been declared as Pandemic Hospitals. (Attached: Expert Health Report of Ümraniye Training and Research Hospital on a Similar Instance)

-4-

The clients are in a hunger strike, requesting fair trial and had no demands of treatment. Medical treatment without consent is not legally possible.

The clients´ hunger strike has very basic and legal demands and they have informed the public and authorities on many occasions via their petitions that they will not be accepting any treatment until their demands are met. Article 17 of the constitution and the ruling that “Outside of medical necessities and situations stated by the law, a person´s bodily integrity can not be violated, and they can not be subjected to medical or scientific trials without their consent.” clearly states that a person can´t be subjected to medical treatment against their will. Moreover, article 24 of the Regulation on Patient Rights also necessitates patient consent for medical treatment and established the situation where exceptions may apply as “When there exists an immediate danger to the patient´s life where the patient is unable to give their consent because they are unconscious or when a situation that can result in the loss of an organ or their irrevocable loss of function presents itself; a patient´s consent does not have to be received.” limiting the exception to situations where there exists a danger to the patient´s life or the patient is unconscious. The clients still maintain their consciousness and any intervention is both against the law and a criminal act. The court´s decision is against the constitution per Article 17 and means a breach of human rights. The execution of this ruling is not possible considering both the legislation and the principles of human rights.

The Ümraniye Training and Research Hospital report we presented that is on a similar instance underlines that “by national legislation and international treaties that our country is a signatory to, individuals that maintain their consciousness can not be subjected medical intervention without their consent or their will”.

CONCLUSION AND REQUEST

Upon our demand that prison conditions are not suitable for clients’ health, the Forensic Medicine Institution confirmed that “prison conditions are not suitable for clients’ health”. Despite this report, the temporary committee in Istanbul 37th Criminal Court decided, in contradiction with the precedent and out of its authority, to the rejection of our demand of release and decided on the installment of the clients in the hospital in a way that risks their lives. This decision is completely against the law, and we demand the withdrawal of this decision that causes vital risks in the conditions of the pandemic. We demand that the legal procedure is followed and the release of the clients is issued. 30.07.2020

Appendices

  1. A precedent case dated 21/02/2020 with expert report prepared by Forensic Medicine Institution, stating that the prison conditions are not suitable for the defendant due to the health effects of long term hunger, and as a result 37th Criminal Court decided the release of the defendant.
  2. Committee report dated 16/03/2020 for a similar case from Ümraniye Training and Research Hospital, mentioning the risks of the hospital environment due to SARS-CoV2 pandemic and other infections for patients with significantly weakened immunity systems resulting from long term hunger.

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