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Although not classified as a criminal penalty or sanction under Turkish legal system, various medical interventions exist that interfere with an individual’s physical integrity through the exercise of public power. In Turkish law, these applications are generally performed to establish material truth or on grounds of public health or public safety. This article examines the grounds for the legality of such applications. Furthermore, instances where a physician treats a patient against their express consent absent such statutory grounds will also be evaluated.
As detailed below, medical interventions of this nature are lawful when specific prerequisite conditions are met.
Consent is fundamentally an applicable condition for legality regarding all interventions made upon bodily integrity, which forms the subject of personal rights (kinlik hakları) under Article 24 of the Turkish Civil Code (TMK), Article 63 of the Turkish Code of Obligations (TBK), Article 26 of the Turkish Penal Code (TCK), and related provisions.
However, consent given for a medical intervention is a qualified consent (nitelikli rıza) that diverges from general provisions. (Where medical necessity—termed "indication"—the requirement that the intervention be performed by an authorized person, and compliance with medical science are prescribed as legality conditions for a medical intervention, an individual's consent alone ceases to hold independent legal significance.)
The primary norms stipulating that a physician must obtain patient consent prior to performing a medical intervention include:
Article 70 of Law No. 1219 on the Practice of Medicine and Medical Arts:
"Physicians, dentists, and dental practitioners shall obtain the consent of the patient—or the custodian or guardian if the patient is a minor or under guardianship—prior to performing any surgical procedure. Written consent is required for major surgical procedures. ..."
In our view, the most explicit provisions on this matter—though containing norms whose binding force against statutory law remains debated—are set forth in the Patient Rights Regulation (PRR, Arts. 5, 15, 22, 24, 26, 27–36).
Additionally, Article 14 of the Medical Deontology Regulation and Article 26 of the Code of Medical Ethics concern informed consent (aydınlatılmış onam).
While detailed definitions of informed consent exist, the essence of disclosure in informed consent (bilgilendirilmiş rıza) is that a patient lacking medical expertise understands what they are consenting to. Its distinction from simple consent lies in complete patient information. Because medical interventions—whether therapeutic or non-therapeutic—are complicated procedures in most instances, the patient must be informed regarding the nature, purpose, alternatives, and potential consequences of the intervention. Otherwise, the consent of a patient seeking medical care who remains unaware of what they are consenting to will be legally defective (irade fesadı). For major surgeries, medical interventions on minors or wards under guardianship, or specialized applications such as termination of pregnancy (abortion), stricter or distinct consent procedures are prescribed in domestic legislation.
Article 17 of the Constitution of the Republic of Türkiye:
"... Except in cases of medical necessity and under conditions specified by law, the physical integrity of the individual shall not be touched ..."
The phrase "medical necessity" in this constitutional norm relates to the requirement of indication (endikasyon), whereas "conditions specified by law" relates to statutory rules. Beyond this norm—the boundaries of which vary significantly depending on the construction given to the conjunction "and"—the supreme norms governing consent to medical intervention under Article 90 of the Constitution are contained in the Convention on Human Rights and Biomedicine (Biomedicine Convention):
Article 5 of the Biomedicine Convention:
"An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time."
Article 8 of the Biomedicine Convention:
"When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned."
(The Convention provides distinct exceptions regarding persons suffering from mental disorders and incapacitated individuals.)
Under Article 90 of the Constitution, duly ratified international agreements carry the force of law, and no appeal to the Constitutional Court can be made against them regarding unconstitutionality. In conflicts between statutory laws and duly ratified international agreements concerning fundamental rights and freedoms, international agreement provisions prevail.
Consequently, norms residing at the apex of the legal hierarchy concerning consent to medical intervention are the provisions of the Biomedicine Convention. Performing a medical intervention upon an individual against their consent (subject to recognized exceptions) directly violates these norms. Furthermore, Article 3 of the European Convention on Human Rights (ECHR)—prohibiting torture, inhuman, or degrading treatment or punishment—constitutes a foundational norm to be evaluated.
Turkish legislation contains specific provisions permitting medical interventions carried out both without consent and coercively.
For example, under Public Health Law No. 1593 (Umumi Hıfzıssıha Kanunu), numerous provisions mandate compulsory quarantine and coercive treatment for serious infectious diseases.
Article 4 of Law No. 2827 on Population Planning:
"Where castration is required during the course of an operation due to medical necessity for the treatment of a disease, castration may be performed without seeking the consent of the individual."
Article 432 of the Turkish Civil Code (TMK):
"Any adult who poses a danger to society due to mental illness, mental weakness, alcohol or drug addiction, severe contagious disease, or vagrancy may be placed or retained in an appropriate institution for treatment, education, or rehabilitation, provided their personal protection cannot be ensured through other means. Public officials who learn of these conditions while performing their duties must immediately notify the competent guardianship authority. The burden brought upon the individual's environment is also taken into consideration."
Article 7 of Law No. 7402 on the Eradication of Malaria:
"Everyone is obligated to attend general or partial examinations conducted locally by the organization, and to allow the taking of blood samples and administration of medications upon request for bacteriological examinations aimed at diagnosing the disease or determining the malaria parasite index. Custodians or guardians of minors or incapacitated individuals are responsible for compliance with this article."
Article 44 of the Regulation on Brothels and Prostitution Rules and Fighting Venereal Diseases Transmitted Through Prostitution:
"All registered prostitutes examined by an official physician or receiving treatment from an official or private physician must present themselves for examination on designated days and hours. Women who fail to attend examination and treatment, or who fail to undergo private treatment as reported by their attending physician under Article 38, shall be brought coercively and subjected to examination and treatment by an official physician. Women repeating this conduct shall be attached to an existing brothel." [1]
Under the principle of legality in crime and punishment (nullum crimen, nulla poena sine lege), penalties serve as the primary sanction of criminal legal order against intentional acts prohibited by law. The objective of these penalties, possessing both preventive and deterrent functions, is not to inflict suffering upon an offender, but to rehabilitate them. Under the principle of penal humanism, the ultimate purpose is the reintegration of an individual subjected to criminal sanctions back into society [2].
A critical principle here is that although an individual may be deprived of personal liberty through severe custodial sentences, a penalty infringing upon physical integrity cannot be inflicted upon a convict. Under modern criminal jurisprudence, no suspect, accused, or convict may be subjected to physical or mental torture, coercion, threat, or medical interventions such as drug injections during interrogation or execution of sentence. This immunity applies even where public interest, public order, or the lives of others are at stake.
Although debated in international case law (e.g., Gäfgen v. Germany, ECtHR App. No. 22978/05) [3], even where an individual known to have abducted persons and left them to die is apprehended, that person cannot be tortured or injected with drugs to extract the location of hostages. Human rights doctrine dictates this absolute prohibition. The more permissive a legal system becomes regarding coercive medical interventions violating physical integrity, the further it departs from fundamental human rights standards.
The public interest and danger involved in preventing potential harm from certain crimes is higher than the public interest derived from treating a mentally ill person coercively or the danger posed by leaving them untreated. Yet while an individual lacking mental capacity or suffering from a dangerous contagious disease can be involuntarily detained and treated coercively, why cannot a person suspected of a crime be injected with substances for public interest purposes?
In our view, conduct reaching the threshold of torture violates human dignity; moreover, creating exceptional deviations from the general prohibition against torture and ill-treatment generates negative systemic effects that disrupt public order to a far greater extent.
Specific norms permitting coercive medical interventions on suspects/offenders to elucidate crime, prevent harm, uncover perpetrators, or rehabilitate convicts exist in Turkish law:
Article 57/7 of the Turkish Penal Code (TCK):
"Offenders addicted to alcohol, drugs, or stimulant substances shall be ordered as a security measure to undergo treatment in health institutions specialized in alcohol or drug addiction. Treatment shall continue until they are cured of their addiction. These individuals may be released by court order based on a report issued by the medical board of the institution."
Articles 75 and 76 of the Turkish Code of Criminal Procedure (CMK):
Under a judge's order, physical examinations of suspects, accused persons, victims, or third parties may be conducted, bodily samples taken, and internal body examinations performed. Third parties other than the accused may decline physical examination or sample collection on statutory grounds of privilege (tanıklıktan çekinme).
Regarding whether methods such as truth serums (narco-analysis) can be conducted to elucidate crime by taking bodily samples:
It has been argued in classic doctrine that narco-analysis methods have no place in criminal law because an interrogated individual must possess full consciousness. Furthermore, whether such applications yield reliable results remains unproven. However, were such methods to yield near-certain results, their application in criminal law might be contemplated, as it could prevent perjury without constituting torture. Thus, rather than serving as an interrogation method, such an application could be regulated under the legal regime governing searches and bodily sample collection [4].
However, the official legislative rationale of Article 217 of the CMK—which prohibits the evaluation of unlawfully obtained evidence in criminal proceedings—explicitly provides:
"... The principle aims to ensure the accuracy, fairness, and equity of evidence. Thus, whether at the investigation or prosecution stage, evidence obtained unlawfully—such as through torture, narco-analysis, deceptive acts, coercive interrogations, or attacks upon an individual's physical and moral integrity—cannot form the basis of a judgment."
The legislature's stance against coercive medical interrogation methods is clear, and academic doctrine classifies such methods as modern torture [5].
Because the Biomedicine Convention takes precedence over domestic statutory laws under Article 90 of the Constitution, Article 26(1) of the Convention governing permissible restrictions on rights must be evaluated:
"No restrictions shall be placed on the exercise of the rights and protective provisions contained in this Convention other than such as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health or for the protection of the rights and freedoms of others."
Statutory enactment alone does not render a practice lawful; the underlying statute must also satisfy the necessity criteria prescribed in the Convention.
Subordinate regulations (such as executive regulations or decrees) that exceed or expand the scope of their enabling statutes regarding involuntary treatment lack legal validity.
Evaluating legitimate grounds for restriction reveals that norms authorizing medical interventions to gather evidence, manage mentally ill individuals posing a danger to society, enforce quarantine, mandate treatment for venereal diseases, or perform castration for patient benefit in emergency situations align with international standards. (It should be noted that doctrine criticizes Article 4 of Law No. 2827 on Population Planning as contrary to constitutional principles and universal legal tenets [6].)
However, performing involuntary medical treatment absent these strict conditions violates the Biomedicine Convention, even if appearing compliant with Article 17 of the Constitution.
An individual not suffering from a contagious disease cannot be treated coercively outside statutory exceptions. Regarding these exceptions, the state bears a positive obligation to prevent suicide, as self-destruction is not recognized as a legal right. In hunger strikes, because dying does not constitute a legal right, medical intervention to preserve life is legally justified [7].
The ECtHR has ruled that no right to die exists under the ECHR and that states bear a positive obligation to protect life against an individual's contrary intent [8]. Likewise, the Constitutional Court of Türkiye (AYM) has affirmed that while the state does not bear a general obligation to prevent all suicides, it bears a strict positive obligation regarding individuals held under official custody [9].
Article 82/3 of the Law on the Execution of Sentences and Security Measures (Law No. 5275):
"... Outside the cases specified above, where a convict suffering from a health issue refuses examination and treatment, and their health or life is in serious danger, or where a situation exists that threatens the health or life of others in the penal execution institution, the provisions of the second paragraph shall apply..."
Involuntary medical intervention performed when a prisoner reaches a life-threatening state rests upon the state's positive duty to protect the life of individuals under its custody.
However, even assuming this paragraph relates specifically to hunger strikes, the provision implies that convicts engaging in hunger strikes can be subjected to coercive medical intervention against their consent for any serious illness. The boundary of a "serious threat to health" remains imprecise. An individual refusing treatment over an extended period may experience irreversible health issues or organ damage without facing immediate mortality. While a non-incarcerated cancer patient retains the right to refuse treatment, this execution norm deprives convicts of that right.
Article 82/1 of Law No. 5275 also prescribes coercive measures:
"Where convicts continuously refuse food and drink provided to them for any reason ... the psychosocial service unit shall conduct efforts to dissuade them; if no result is obtained, forced feeding shall be initiated in an appropriate environment according to a regimen determined by the institutional physician."
This provision explicitly authorizes compulsory feeding (zorla besleme).
As established in ECtHR jurisprudence, the state is obligated to prevent suicide and safeguard the health of individuals under its custody. From a human perspective, preventing permanent organ damage or disability in prisoners—who may alter their outlook following potential amnesties—serves a protective purpose. However, evaluating these provisions strictly through legal norms reveals compatibility issues with international standards. While the second sentence of Article 82/3 satisfies international criteria by protecting the health of other prisoners, Article 82/1 and the remainder of Article 82/3 conflict with the Biomedicine Convention and Article 90 of the Constitution, despite satisfying the statutory requirement of Article 17 [10].
Where a physician performs a coercive medical application pursuant to a specific statutory mandate, the intervention is lawful as the execution of a statutory duty.
However, where a physician treats a patient against their express consent without a specific statutory authorization, the legality of the act remains debated in penal doctrine:
Permissive View: Certain scholars argue that consent is unnecessary in cases of medical necessity (tıbbi zorunluluk), and that consent is required only for non-necessary procedures such as cosmetic surgeries [11].
Strict Protective View: Other scholars contend that medical necessity or state of necessity cannot override explicit patient refusal or render an unauthorized intervention lawful. Administering treatment against an individual's explicit consent violates human dignity [12].
