Press Release No: Individual Application 16/16
31.03.2016

PRESS RELEASE CONCERNING JUDGMENT OF MURAT KARABULUT ON THE PROHIBITION OF TREATMENT INCOMPATIBLE WITH HUMAN DIGNITY

On 18/2/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Murat Karabulut (application no. 2013/2754) that there had been a breach of the prohibition of treatment incompatible with human dignity guaranteed in Article 17 of the Constitution.

The Facts

A.K., who was the applicant’s father and 74 years old at the date when he was placed in the prison, informed during his medical examination performed on the first day he was placed in the prison that he was suffering from lung cancer. In accordance with the report drawn up by the doctor of the institution, it was considered appropriate to accommodate him in the infirmary. On the same day, A.K. requested to avail himself of personal pardon.  In the report drawn up in respect of A.K. by the hospital where he was referred, he was diagnosed with the lung cancer, and it was specified that respiratory function test result was 53%. The Forensic Medicine Institute to which the applicant’s father had been referred together with the above-mentioned report sent him to the Kartal Training Research Hospital (“Kartal Hospital”), which was the health institution where the tests for diagnosis of lung cancer were performed, for receiving a report indicating his final health status and performance of all tests. On 11/8/2011, within the framework of the information obtained, the Forensic Medicine Institute also issued a report in which it was specified that A.K. was not considered to be suffering from a continuous illness, disability and his old age; and that a new report would be issued following the additional tests to be performed and the submission of the report to be prepared concerning the stage of the illness. During the period he was placed in the prison, A.K. was referred to various hospitals for a total of 14 times between 22/3/2011 and 17/10/2011 for treatment of his illness except for the referrals made for the acts performed within the scope of the personal pardon. The applicant’s father, A.K., died on 19/10/2011 when he was in the prison. The report of the Kartal Hospital concerning the stage of the illness was received by the prison administration by post on 5/12/2011. The applicant filed a criminal complaint against the officers of the Forensic Medicine Institute issuing the report with the allegation that they had committed the offence of neglect of duty. Thereupon, a decision of non-prosecution was rendered. The objection to this decision was dismissed.

The Applicant’s Allegations

The applicant maintained that his father who had been in the prison as a convict requested suspension of his sentence for suffering from a lung cancer; that this request had been rejected in line with the report issued by the Forensic Medicine Institute; however, his father had died approximately two months after the issuance of this report; that he had filed a criminal complaint against the officers of the Forensic Medicine Institute issuing the report with the allegation that they had committed the offence of neglect of duty; however, a decision of non-prosecution had been rendered at the end of the investigation; and that he was experiencing grief as his father had died under severe conditions. He accordingly alleged that there had been a breach of the right to life and the prohibition of torture and claimed compensation.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of the application.   

It has been understood that before A.K. was placed in the prison, he had been diagnosed with lung cancer; that he started to undergo chemotherapy and radiotherapy; and that the prison administration was informed of this situation on 20/3/2011 when he was placed in the prison. It is obvious that A.K.’s illness was of severe nature; and that his health deteriorated much more as time passed by. Therefore, the issue that must be resolved is to which degree A.K.’s state of health until his death was suitable for his accommodation in the prison. In other words, the basic issue likely to be examined with respect to the present incident is whether this situation caused distress and grief much more than the level of sorrow which is a natural consequence of being deprived of liberty.

When the existing arrangements on this matter are examined, it has been observed that Article 16 § 2 of the Law no. 5275 prescribes that execution of the sentence of a convict may be suspended for health-related grounds. Moreover, Article 104 § 2 (b) of the Constitution provides the opportunity for making a request for obtaining pardon from the President of the Republic. 

It is undoubted that such arrangements are, in theory, capable of ensuring the material and spiritual entities of the convicts who have been suffering from especially a very severe illness or who are not fit for being accommodated under the prison conditions for any other reason. Therefore, the issue which must be emphasized is to which degree the state of health of the convicts and detainees in the prisons is suitable for ensuring them to avail themselves of the above-cited legal opportunities and whether the acts performed with respect to the state of health of such persons have been appropriate or not.

In this scope, the issue to be dealt with by the Constitutional Court with respect to the impugned incident is to determine as to whether the acts necessary for the official establishment of the relevant person’s state of health by a health institution, a legal institution authorized by subsidiary arrangements, with a view to forming a basis for the decision to be taken by the authorities with respect to the suspension of the execution of the sentence or being subject to pardon have been performed with a reasonable speed and in a diligent manner. At this stage, the proper implementation of the determined procedure may depend on the acts to be performed by the prison administration, a fully-equipped state hospital and the Forensic Medicine Institute. Deficiencies and delays in the actions to be performed might be in question in respect of all persons on behalf of whom an application has been lodged and would mean, in the present incident, leaving A.K. alone in the prison in a manner which would not enable him to protect his own dignity and which would deprive him of the support of his family while coming to the inevitable end caused by his illness progressing. 

A.K.’s relatives requested re-formation of the execution of the sentence imposed on A.K. by taking into consideration his state of health. It has been observed that, for receiving a final decision on such a request, A.K. and information and documents issued for the establishment of the state of health of A.K. had to shuttle between “a fully equipped state hospital” and the Forensic Medicine Institute on account of the referrals and the deficiencies and delays in the reports and request letters drawn up; and that the process initiated on 21/3/2011 could not be ended within the elapsing period of approximately seven months until the death of A.K.. The determination of which institution/institutions taking place in the process caused this delay is of no importance. The important issue is the failure of taking a decision which is very critical in respect of A.K. as bureaucratic actions were not properly and timely performed.

It must be accepted that the facts that A.K. was examined and his disease was diagnosed by the specialized health institutions at the times when he was placed in the prison and when his request likely to be classified as a request for the suspension of the execution of his sentence was submitted to the prison administration and the Forensic Medicine Institute; that he was already established to suffer from the lung cancer which was continued to be treated and was likely to endanger his life; and that he was 74 years old increase the significance of the rapid conduction of this process much more.

Although A.K. had been suffering from a fatal disease and his state of health had become unfit for the conditions of the prison before his death, he died in the prison while being away from his family. The urgent referral of A.K. to the hospital two days before his death may be taken into consideration as an indication that health problems he had been suffering during his last days increased further. Nevertheless, it has been also observed that the applicant was not provided with the opportunity to receive inpatient treatment at the hospital where he had been referred. Within the framework, it must be accepted that A.K. was exposed to distress much more than the one which is an inevitable and natural consequence of lung cancer and of being deprived of his liberty and thereby to a treatment which was incompatible with human dignity.

For the above-mentioned reasons, the Constitutional Court has consequently held that there was a breach of the prohibition of treatment incompatible with human dignity guaranteed in Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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