The escort of a detainee or convict to hospital by security officers does not change the nature of the health service: the person has patient rights during examination, diagnosis and treatment. The automatic continuation of a security measure taken during transfer, unchanged, in the examination room requires a separate legal review. Although the problems of handcuffs, examination privacy and access to treatment may be linked in the same file, each must be explained with concrete facts.
Is the use of handcuffs in hospital lawful in every case?
Article 50 of Law No. 5275 makes handcuffs and instruments restricting bodily movement subject to certain conditions; it does not grant unlimited authority permitting their use as punishment. Use for medical reasons and security measures relating to the risk of escape or causing harm are not the same legal assessment. [1]
Transfer security and the conditions of the medical procedure must be distinguished
The security need that exists during the journey from the prison to the hospital may not continue in the same way at every stage in the hospital. The waiting area, the examination room, the test carried out and the number of officers are different. For this reason, an application should not be content with the information that “he was taken to hospital in handcuffs”; it should state to which part of the journey, the waiting, the examination or the treatment the actual complaint relates.
How long the handcuffs were used, whether their removal was requested, the answer given, the opinion of the health personnel and whether the examination was completed are of importance. Generalizations to the effect that every practice is automatically a violation, or that none will ever constitute a violation, weaken the legal assessment.
Why does the physician’s assessment matter?
The physician assesses the medical requirements of the examination or treatment to be carried out. The security officer, in turn, must explain the risks within his or her own field of duty. The effect of handcuffs on the examination, on a test requiring movement or on the use of equipment requires a medical assessment. This effect should not be presumed solely from an administrative record.
The relevant provisions of the Execution Regulation (İnfaz Yönetmeliği) and the guarantees of patient rights should be addressed together. [2] The concrete request is not that the security officer abandon all measures; it is that the necessary security be ensured by an appropriate method that protects the patient’s dignity and the medical service. Whether a lighter measure is possible is also part of the assessment.
How is examination privacy protected?
The presence of an officer in the examination room
The protection of health information and bodily privacy is important also for persons referred from a penal execution institution. Who is present in the room during the examination, why they are present and to what extent the conversation can be heard are examined separately. If a security reason is put forward, the concreteness of that reason and the possibility of a less intrusive arrangement must be assessed.
One should not act as though there were a general rule requiring that everything the patient tells the physician be disclosed directly to the security officers. Likewise, it cannot be said that the safety of health workers is unimportant. The legal review should be directed at how health service and security can be ensured together in the concrete setting.
How is health information passed to the family?
The patient file and diagnosis and treatment information are personal data. Although a family’s concern for their relative is understandable, this does not automatically give authority for the unlimited sharing of all health records. The patient’s consent, the state of representation and the relevant legal requirements must be assessed. The limits of authority and confidentiality are also preserved when documents are examined through a lawyer.
The family may report a problem of access to health services without disclosing medical details to the public. For example, that a planned test was not carried out, that no new appointment was given or that a request for examination went unanswered may be the subject of an application. In sharing documents, one should stay limited to the necessary information.
Is a record of refusal of treatment sufficient on its own?
A person’s refusing treatment altogether and objecting to a particular security practice are different facts. A short entry such as “he did not want to be examined” may not explain the dispute as a whole. Which condition the person objected to, which alternatives were offered and what assessment the health personnel made must be established.
Legal objection without risking health
A legal application should not lead the patient to discontinue treatment. The priority is the continuation of the necessary health service. Having the objected practice entered in the record, asking the health personnel to explain the medical necessity and then using the appropriate application routes may be considered. In an urgent health need, waiting for the ordinary reply to a petition is not appropriate.
If a record contains an incorrect or incomplete account, it should be clearly written in respect of which point it is objected to. No firm conclusion should be drawn about a signature or statement without having seen the document at all. If there is a difference between the record and the patient file, this contradiction must be investigated separately.
The Deniz Şah (5) decision: the majority opinion and the dissent
In the Constitutional Court’s (AYM) Deniz Şah (5), Application No. 2020/13465, November 21, 2023 decision, the applicant’s objection to handcuffs during a Holter procedure, after being referred to hospital because of a heart condition, was examined. The majority held that the prohibition of ill-treatment had not been violated. The security assessment and the absence of information showing the effect of the practice on the test, the treatment or the mental state were important in the reasoning. [3]
Dissents should not be reported as though they were the outcome
Two members did not join the majority, emphasizing that the physician’s opinion should have been obtained and the adequacy of the investigation. These opinions are valuable for legal discussion; however, they do not turn the outcome of the file into a decision of violation. The majority found no violation in the substantive limb; because of this result, it saw no need to assess the procedural limb separately.
The practical conclusion that can be drawn from the decision is to read the assessment in both directions and to document the concrete security risk and the medical effect. This decision does not approve all handcuffed examinations, nor do the dissents alone guarantee a finding of violation in every case.
Which documents are needed for an application?
| Document | Function in the legal assessment |
|---|---|
| Referral and duty record | Establishing place, time and the security reason |
| Patient file and test request | Showing the medical procedure that needed to be carried out |
| Physician or health personnel record | Explaining the effect of the restriction on the medical procedure |
| Record of refusal of examination or treatment | Examining the real scope of the refusal statement |
| Later appointments and health records | Assessing the delay and its consequences |
How is the “medical effect” made concrete?
The name of the test that could not be performed, the date it was scheduled, whether it was carried out afterwards and the situation that arose because of the delay should be shown. The person or the lawyer should not take the place of an expert on medical causation. If necessary, an expert opinion or an explanation from the relevant health institution should be requested. A photograph of the handcuffs alone does not establish all the effects on treatment.
How are the authorities to which application may be made distinguished?
An ongoing health service problem can be pursued before the institution’s health unit and the hospital concerned. As regards the institution’s act, the duty of the enforcement judgeship (infaz hâkimliği) is assessed according to the nature of the event. Conduct of an officer alleged to constitute a crime may be made the subject of a prosecutor’s examination. An application to the hospital’s patient rights unit may be useful in respect of medical service and privacy; it does not by itself suspend other statutory time limits.
Frequently asked questions
Is a handcuffed examination necessarily a violation of rights?
In each file the reason for the practice, its duration, its method, its medical effect and the person’s situation are assessed together. No automatic conclusion can be drawn.
Why does the absence of a physician’s opinion matter?
It shows whether the effect of the restriction on diagnosis or treatment was assessed medically. It should be examined together with the other records in the file.
Can the family apply only by telephone?
Urgent information can be conveyed by telephone; however, a dated written record makes it easier to follow up the application. What was reported to which official should be kept.
How are application routes and time limits preserved?
Complaint to the enforcement judgeship for an institutional act
If the unlawfulness of a decision, act or activity within the scope of Law No. 4675 is alleged, the route of complaint to the competent enforcement judgeship is considered. The general time limit is fifteen days from learning of it and in any case thirty days from the date of the act. An objection against a decision of the enforcement judgeship is provided for within two weeks of notification. Competence, the persons who may apply and the start of the time limit must be checked against the concrete act. [4]
A complaint does not suspend the act by itself. If the conditions in the law exist, a request for postponement or stay is separately substantiated. Continuing situations, renewed decisions and one-off events must not be treated with the same time-limit calculation. While waiting for an earlier application to be answered, it should not be assumed that the time limits of other applications are suspended.
Application to the prosecutor’s office for an allegation of crime
An application to the Chief Public Prosecutor’s Office (Cumhuriyet başsavcılığı) may be considered in respect of conduct of officers alleged to constitute a crime. This route is not the same as a request for the removal of an institutional act. The event, the evidence, the request for investigation and the applicant’s legal position must be clearly stated. The two-week time limit for objection by the person harmed by the crime against a decision not to prosecute (kovuşturmaya yer olmadığı kararı) under Article 173 of the Code of Criminal Procedure (CMK), running from notification, is also separately observed. [5]
An application to the AYM is not a first application replacing the ordinary routes. Depending on the nature of the complaint, the exhaustion of effective remedies and the admissibility conditions are examined. It cannot be said that every event can be taken directly to the Constitutional Court, or that exhausting the same route is sufficient in every application. It should also not be assumed that extraordinary applications renew time limits by themselves.
Related articles: Frisk, Cell and Detailed Searches in Prison: Legal Limits and Complaint Routes; Ill-Treatment in Prison Transfer and Transport Vehicles: Conditions, Evidence and Application; Holding in a Single-Occupancy Cell in Prison: Isolation, Solitary Confinement Penalty and Remedies; Health and Treatment Rights in Prison: Hospital Referral, Medication Supply and Legal Application Routes.
Sources
- Law No. 5275, Article 50 and health provisions.
- Execution Regulation (İnfaz Yönetmeliği); CTE official access to regulations.
- AYM, Deniz Şah (5), Application No. 2020/13465, November 21, 2023; with the distinction between majority and dissent.
- Law No. 4675 on Enforcement Judgeships (İnfaz Hâkimliği Kanunu), Articles 4–6.
- Code of Criminal Procedure No. 5271 (Ceza Muhakemesi Kanunu), Article 173.