Hükümlü veya Tutuklunun Hak Kullanımının ve Beslenmesinin Engellenmesi Suçları (TCK m. 298)

Abstract

Fundamental rights arise from being human, and the rights and freedoms of detainees and convicts cannot be interfered with, except to the extent that it is required for the restriction of freedom. Under most circumstances, detainees and convicts can access their rights only if such rights are directly provided by the state, and due to the limitation of their freedom, their legal status, their institutions and circumstances, such persons are open to the violation of their rights. Thus, first, their rights and freedoms must be provided, and then the existence of legal protection mechanisms must be ensured. The study focuses on the crimes of restricting use of rights and supply of food under Article 298 of Turkish Criminal Code, which will be examined first from the perspective of the rights of detainees and convicts protected by the relevant crimes, and then with respect to the elements of the relevant crime types. The hunger strike practice that relates to this crime type will be further considered in conjunction with the relevant crime type under a separate section, and evaluated within the scope of the legal aspects of the hunger strike practice of convicts and detainees and intervention with hunger strike, in comparison to the relevant rights and freedoms of free individuals. It is important to provide the rights of detainees and convicts both by law and in practice. Accordingly, the establishment of a type of crime for the protection of the rights of detainees and convicts under the Turkish Criminal Code is a result of this importance and necessity. As a result of the study, it is concluded that, detainees and convicts have been granted restricted rights and freedoms in relation to consent to treatment, in comparison to free individuals, in particular with respect to involuntary intervention in the case of hunger strike. In this regard, the fact that detainees and convicts are under the protection of the state, as well as the fact that their freedoms are restricted as per the power of the state, leads to a difference in legislation regarding the mandatory preservation of their lives.