According to Article 17 of the Constitution, the physical integrity of a person cannot be violated, except for medical necessities and cases written in the law; He cannot be subjected to scientific and medical experiments without his consent. One of the exceptions to this right defined in the Constitution; It is the physical examination of the suspect or the accused and the taking of samples such as blood or similar biological samples, hair, saliva and nails from the body for medical examination. These procedures may be mandatory in order to obtain evidence of a crime and reveal the material truth, but this obligation brings with it some problems in terms of medical ethics and human rights.
In the Code of Criminal Procedure No. 5271, physical examination and Relevant special provisions are envisaged. In addition, an administrative regulation has been issued by the Ministry of Justice on the subject under the name "Regulation on Physical Examination, Genetic Examinations and Physical Identification in Criminal Procedure".
In this Regulation, physical examination and body examinations are included. Provisions regarding the procedures and principles of sample taking are also included. For example, Article 4 of the Regulation specifies the conditions for performing an internal body examination on the suspect or defendant. Accordingly, the internal body examination can be decided by the public prosecutor, upon the request of the victim, or by the judge or the court ex officio, or by the public prosecutor in cases where delay is dangerous. Likewise, according to the same article, the internal body examination of the suspect or defendant can only be performed by a physician and in order to perform the examination; The intervention must not pose a clear and foreseeable danger of harm to the person's health.
Indeed, even though all the conditions sought in the Regulation and the Law have come together and the suspect or defendant has been informed on this issue, these persons are still subject to examination or may not consent to sample being taken. It is important for physicians to know what the procedures to be done in this case are.
At this point, healthcare professionals need to know that they do not have the authority to use force to examine people who do not consent or to take biological samples from these people. In cases where the person concerned does not consent, the judge, court or prosecutor may not allow examination or taking samples. The duty of ensuring the execution of the decision regarding the execution has been given to the Office of the Chief Public Prosecutor. For this reason, in similar cases, the absence of a defendant or suspect must be reported to the relevant Chief Public Prosecutor's Office.
However, the problem may not be solved by this notification process. Despite the warning of the prosecutor or the decision to use force by law enforcement officers, the defendant or suspect may not consent to examination or physical intervention. In this case, the path the physician should follow is legally controversial. Should the physician implement the decision of the prosecutor, judge or court at this stage, or should he refuse forced examination and procedure within the framework of human rights law?
At this point, the decision of the European Court of Human Rights (ECHR) Jalloh v. We believe that the German decision will be a guide. The incident that is the subject of this decision developed as follows: A person named Abu Bakah Jalloh, a Sierra Leonean national, was monitored by the German police and it was observed that this person took a small plastic bag from his mouth twice, took it in his hand and then gave it to another person. Later, when the same person was wanted to be taken into custody, he was seen by the police to have swallowed an object in his mouth.
This case was considered by the German prosecutor as a situation in which delay could be harmful, and Abu Bakah Jalloh was sent to the hospital under the supervision of the relevant police and his anamnesis was taken by the doctor (Jalloh does not accept this). ) and using police force, he was given salt water and ipecac syrup through a nasogastric tube, and then apomorphine injection was administered. Jalloh then vomited the plastic bag he had swallowed. Upon analysis of the contents of the bag, it was determined that it contained cocaine.
Abu Bakah Jalloh. He was arrested, he had a nosebleed for two weeks at the beginning of his detention, and during the gastroscopy performed while he was in prison, irritation in the lower part of the esophagus due to acid reflux was observed, but in the physician's report, this situation was not clearly associated with the use of a nasogastric tube, and a causal link was not established.
Later, Abu Bakah Jalloh claimed that this transaction was unlawful. According to Article 81a of the German Code of Criminal Procedure, as long as it does not pose a risk to health, Even if the suspect or defendant is not weak, physical attempts can be made on the suspect or defendant. Although there are differences of opinion as to whether this law will be applied in the concrete case, the German Courts have accepted the practice as lawful. Different opinions were expressed, and ultimately the issue came before the ECHR. As a result of its evaluation, the grand chamber of the court decided by ten votes to seven that there was a violation of Article 3 of the European Convention on Human Rights. Article 3 of the Convention regulates the prohibition of torture. According to the relevant article, no one can be subjected to torture or inhuman, degrading treatment or punishment.
Coming back to the subject in the light of this decision: First of all, it is useful to underline one issue. Physicians must be asked whether the person consents, especially when a judicial decision is made to perform a physical intervention on the suspect or defendant for the purpose of obtaining evidence. In cases where there is no consent, no attempt should be made by force. What needs to be done at this stage is to notify the Chief Public Prosecutor's Office of the situation in writing. However, if the Prosecutor's Office still decides to use force despite the person's lack of consent, there is no clear provision in the law (as in the German Code of Criminal Procedure) regarding the course the physician should follow. It is worth reminding once again that the application of nasogastric tube and emetic medication is contrary to the article of the European Convention on Human Rights regarding torture.
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