Concrete information that a person held in a penal institution has a serious deterioration in mental health or a risk of self-harm is a need for protection that must be assessed without delay. The family’s task is not to make a diagnosis but to convey the facts it knows to the competent units clearly and on time. Legal follow-up does not replace a health assessment; it aims to secure access to that assessment and the application of the necessary protection.
How should a family act when it notices a serious risk?
When a situation pointing to an imminent and serious danger is learned of, notice must be given immediately to the institution’s administration and its health unit, and an effort should be made to confirm that the information has reached the relevant officer. Merely waiting for the ordinary response time to a petition is not appropriate. Creating a written record after an oral notice makes it possible to track who was informed and when.
What information should the notice contain?
The person’s name, the institution where he or she is held, the relationship to the family, when and how the information was learned and the changes observed should be stated. The words reported should be written without distortion, separating interpretation from direct observation. Known earlier health assessments and treatment information may be conveyed to the relevant health personnel to the extent necessary. The family should not suggest medication on its own or change the existing treatment.
The concrete request may be a health assessment without delay, an examination of the risk by specialists and the implementation of protective measures suited to the person. A notice from the family is not a definitive medical diagnosis; it can nonetheless be important information that calls for an assessment.
What does the State’s obligation to protect life cover?
Article 17 of the Constitution protects life and a person’s physical and spiritual integrity. The responsibility of public authorities is especially important for protecting the life of a person deprived of liberty. In the face of a real and imminent risk that is known or ought to be known, reasonable and effective measures must be taken. This does not mean that every adverse outcome is automatically regarded as a violation of rights; the foreseeability of the risk and the measures taken are examined. [1]
Why may the initial admission assessment not be sufficient on its own?
A person’s condition may change over time. A new judicial decision, a change in family relationships, a return to the institution or an observed change in behavior may call for a current assessment. That no risk was identified earlier does not justify disregarding symptoms that appear later. The legal application should show in particular on what date the new information reached the institution.
A health referral and protective monitoring are not the same thing
Having been referred for an examination or an appointment does not by itself show that the necessary monitoring was carried out in the meantime. Suitable accommodation, monitoring and the transfer of information between units must be planned according to the concrete risk and the medical assessment. Rather than imposing a particular medical method, the lawyer must request the necessary assessment and effective implementation.
The result of the Aysel Tuncel and Yusuf Ayaz decision
In the Constitutional Court (AYM) decision of Aysel Tuncel and Yusuf Ayaz, Application No. 2020/20856, May 15, 2024, the known symptoms and the measures not taken before a death in a penal institution were examined. The Court assessed that adequate observation and checks had not been carried out despite indications that the person’s condition required current monitoring. It held that the obligation to protect life had been violated. [2]
A violation was also found as regards the investigation
The Constitutional Court separately addressed the deficiencies in investigating the responsibility of public officials. It held that the procedural limb of the right to life had also been violated and ordered that the decision be sent to the relevant chief public prosecutor’s office for a new investigation. These two results are distinct: one concerns protection before the death, the other the effective investigation after the event.
The decision matters in that the mere existence of a health referral document does not show that all protective obligations were fulfilled. In the application, the information held by the institution, the assessment that this information required and the measures actually taken should be shown together. The details of the event in the decision do not give rise to automatic fault or compensation in another file.
What requests can be made before the institution’s administration, the prosecutor’s office and the enforcement judgeship?
| Purpose | Area to which the application is directed | Prominent request |
|---|---|---|
| Assessment of the current risk | Institution administration and health unit | Urgent health assessment and protection |
| Follow-up of measures in the enforcement process | The relevant chief public prosecutor’s office | Examination of the notice and action within its authority |
| Unlawful institutional act | The competent enforcement judgeship (infaz hâkimliği) | Review of the act and, if the conditions exist, interim protection |
| Suspicion of an offense or negligence | Chief public prosecutor’s office | Effective investigation and preservation of records |
Separate urgent protection from the application time limit
An urgent risk notice is made immediately. That there are time limits provided for a complaint to the enforcement judgeship or an objection to a decision issued afterwards does not mean that a health intervention can be postponed until the end of those periods. Likewise, a notice to the institution does not by itself stop the time limits for judicial applications.
The family should examine whether the reply to its application states merely that it was recorded or that a concrete assessment was made. It may not be possible to give the family every piece of medical information; even so, it is possible to follow up that the notice has been passed to the relevant unit and that an appropriate protection review has been carried out.
Privacy and sharing information with the family
Information on mental health is sensitive. Being a close relative does not automatically justify sharing all of an adult’s health records. Consent, representation, professional secrecy and the legal requirements for the person’s protection are considered together. Passing information to the competent health and institutional officials for the necessary protection and sharing it publicly are different acts.
A documented application instead of public sharing
Identifying a person by name on social media or sharing private correspondence may adversely affect the person’s privacy and close relationships. For a legal application to be strengthened, it is not necessary to make the event visible. Concrete, dated records delivered to the competent authorities carry more direct weight.
How can the family apply after a death or serious harm?
Depending on its legal position, the family may request follow-up of the prosecutor’s investigation, the gathering of the necessary records and expert examinations. Internal notices in the institution, health referrals, duty and monitoring records and the statements of the persons concerned are important to assess. Limiting the event only to the moment of the outcome may prevent investigation of the lack of information and measures beforehand.
Objection to a decision of non-prosecution
Within the conditions of Article 173 of the Code of Criminal Procedure (CMK), a person harmed by the offense has the right to object within two weeks from the notification of a decision of non-prosecution (kovuşturmaya yer olmadığı kararı). The objection is directed to the criminal judgeship of peace (sulh ceza hâkimliği) at the seat of the high criminal court (Ağır Ceza Mahkemesi) in whose area the prosecutor who issued the decision serves. The fifteen-day wording in older texts should not be confused with the current period. [3]
An individual application to the Constitutional Court is assessed after the necessary application routes and the admissibility conditions have been examined. It cannot be said that one may go directly to the Constitutional Court in all events or that the same route is sufficient in every file. The calculation of the time limit must be made together with the learning of the relevant decision and the nature of the application.
Application time limits and follow-up of the file
Complaint to the enforcement judgeship and objection to the decision
A complaint against institutional decisions, acts or activities under Law No. 4675 is made within fifteen days from learning of them and in any case within thirty days from the date of the act. An objection route is provided against a decision of the enforcement judgeship within two weeks from notification. The jurisdiction, the persons who may apply and the nature of the concrete act must be checked separately. In continuing situations or decisions of a different nature, the start of the period is examined separately; these general periods do not apply to every legal route. [4]
A complaint does not by itself stop the act. When the conditions in the law are met, a request for postponement or suspension must be explained separately on the grounds of consequences that are difficult to remedy and unlawfulness. It should not be assumed that submitting a petition to other authorities preserves these periods. The whole decision, the notification document and the earlier applications should be kept together.
Related articles: Rights of Children Staying with Their Mothers in Prison: Care, Nursery, Health and Application Routes; Rights of Detained and Convicted Child Prisoners: Education, Security, Discipline and Application; Detained and Convicted Prisoners with Disabilities in Prison: Accessibility, Care and Legal Protection.
Frequently asked questions
Can a family give notice without a definitive diagnosis?
Yes. Known facts and new observations may be conveyed. Diagnosis and risk assessment are the task of health specialists. Information that is not certain should not be presented as certain in the notice.
Does the granting of an appointment show that the risk has been removed?
Not by itself. The protective measures needed until the appointment and afterwards should be assessed according to the person’s current condition.
Does the lawyer determine psychiatric treatment?
No. The lawyer follows access to a health assessment, lawful protection, the obtaining of records and the application routes. The authority to make medical decisions belongs to the relevant health professionals.
Sources
- Constitution of the Republic of Türkiye (Türkiye Cumhuriyeti Anayasası), Art. 17.
- Constitutional Court (AYM), Aysel Tuncel and Yusuf Ayaz, Application No. 2020/20856, 15.05.2024.
- Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), Art. 173.
- Law No. 4675 on Enforcement Judgeships (İnfaz Hâkimliği Kanunu), Arts. 4–6, the official UYAP legislation source.