Our Opinion on Prisoners with Terminal Illnesses
OPINION PREPARED BY OUR CENTER AT THE REQUEST OF THE ISTANBUL GOVERNORATE PROVINCIAL HUMAN RIGHTS COMMITTEE:
Maltepe University
Human Rights Research and Application Center
Opinion on Prisoners with Terminal Illnesses
It is deemed necessary to enact legal regulations that would allow prisoners suffering from a terminal illness or who are absolutely dependent on the care of others to spend the remainder of their sentences with their relatives without the need for them or their attorneys to file an application, and for the prison administration to carry out the necessary procedures ex officio and mandatorily after obtaining their consent, is deemed necessary from the perspective of human rights and the dignity of the individual, which makes their protection possible.
The ethical, legal, and pragmatic justifications for this necessity are outlined below.
* The following statements are included in relevant international documents:
− According to Article 25.1 of the Universal Declaration of Human Rights:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care. Everyone has the right to social security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.”
− The International Covenant on Economic, Social and Cultural Rights, Article 12(d):
“The creation of conditions necessary to ensure access to all health services and care in the event of illness.”
− The World Medical Association’s Declaration on the Rights of the Patient (1981):
“Every patient has the right to die with dignity.”
− The Declaration on the Development of Patients’ Rights in Europe (Amsterdam, 1994) also expresses the same demand as follows:
“Patients have the right to be treated with dignity during the final stages of their lives and to die with dignity.”
* Current situation and resulting issues
Legal situation:
− Article 104, Paragraph 2, Subparagraph (b) of the Constitution, which defines the President’s duties and authorities, includes among the President’s “executive powers” the authority to “mitigate or remit the sentences of certain individuals due to chronic illness, disability, or old age.”
− The Law Amending the Law on the Enforcement of Criminal Penalties and Security Measures (No. 5485, adopted on April 6, 2006) states the following:
“(2) Without prejudice to legal liabilities regarding the full compensation of damages arising from the crime in question through restitution, restoration to the pre-crime state, or indemnification;
For women or persons who have reached the age of sixty-five, the six-month prison sentence to which they are sentenced,
For persons who have reached the age of seventy, the one-year prison sentence to which they are sentenced,
Three years for persons who have reached the age of seventy-five,
or a prison sentence of shorter duration, may be served at the convict’s residence, as determined by the court that issued the sentence or, if the convict is located elsewhere, by a court of the same level in that location.”
− The Third Forensic Medicine Expert Board issues scientific and technical opinions regarding “procedures for the mitigation or remission of sentences for certain individuals due to chronic illness, disability, or old age.” (Forensic Medicine Institution Law, Article 16, II c)
Current procedure:
− This procedure is outlined in the annex (Annex 1), “Circular on Procedures to Be Followed in Special Pardon Requests” dated January 1, 2008, and numbered B.03.0.CİG.0.00.00.05/010.06.02/19, issued by the General Directorate of Criminal Affairs of the Ministry of Justice of the Republic of Turkey.
* Problems in Practice
Although the State is obligated under national and international legal regulations to provide health services to detainees and inmates and to assume responsibility for the treatment of illnesses arising from the point of arrest until the completion of the sentence, violations of the right to health in practice are turning into violations of the right to life. The primary causes of this include the absence of a staff physician in most penal institutions, prolonged bureaucratic procedures, significant delays in reports from the Forensic Medicine Institution—sometimes resulting in the death of the prisoner or detainee—and the presence of relevant personnel acting under the mindset that “public opinion must also be taken into account,” among other factors.
* Conclusion
In addition to the ethical grounds outlined above, which necessitate amendments to the Law on the Enforcement of Criminal Penalties and Security Measures to minimize problems as much as possible, there is also a pragmatic justification: the principles of specific and general deterrence—which are among the fundamental objectives of punishment—do not apply to a terminally ill patient.
It would be appropriate to extend the regulation regarding the execution of sentences at home—which is based on the criterion of advanced age—to inmates suffering from a terminal illness, allowing these individuals to spend their remaining time with their loved ones.
To address current issues, it appears important to reduce bureaucratic procedures and impose time limits on such processes.
The following points should be considered in any proposed changes:
Upon the request of the prison physician—or a physician designated under the “Protocol on the Regulation of Health Services in Penal Institutions Between the Ministry of Health and the Ministry of Justice”—and with the consent of the ill prisoner, the Prison Administration should be able to refer the patient to a fully equipped public hospital—or a hospital designated in advance in each province—on its own initiative and notify the Ministry of Justice. The relevant procedure should be carried out as soon as possible, depending on the nature of the illness.
The processing of this hospital report at the Forensic Medicine Institution must be completed within a maximum of one week; if the Institution does not issue an opinion within one week, the hospital report shall be deemed valid.
It is appropriate that such patients not be handcuffed during their transfer.
It appears necessary to clarify the currently used concept of “chronic illness” and to make it clearer exactly what situations it encompasses.
Fulfilling the requirements of human rights for prisoners suffering from a terminal illness and ensuring they are not subjected to a situation that violates human dignity is a necessity stemming from the awareness of humanity among those who carry out these duties; and it is also likely a requirement of the awareness that the most fundamental reason for the existence of the state—as a human-legal institution—is to protect the human rights of its citizens even before they demand them.
I respectfully submit this.
Prof. Dr. Ioanna Kuçuradi
Director