SECOND SECTION

DECISION

Application no. 36331/20 Aytaç ÜNSAL and Ebru TİMTİK against Turkey

The European Court of Human Rights (Second Section), sitting on 8 June 2021 as a Chamber composed of:

Jon Fridrik Kjølbro, President, Aleš Pejchal, Valeriu Griţco, Egidijus Kūris, Branko Lubarda, Pauliine Koskelo, Saadet Yüksel, judges, and Stanley Naismith, Section Registrar,

Having regard to the above application lodged on 20 August 2020,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the invitation of the Court to the applicants to stop their hunger strike,

Having regard to the information provided by the Government in application of Rule 54 § 2 a) of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Aytaç Ünsal and Ms Ebru Timtik, are Turkish nationals, who were born in 1989 and 1978, respectively. Mr Ünsal lives in Istanbul. Ms Timtik died on 27 August 2020. Her brother, M. Barkın Timtik, expressed his wish to pursue the proceedings on her behalf.

2. The applicants were represented before the Court by Ms C. Akbulut, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicants are lawyers who were detained on suspicion of being members of a terrorist organisation, namely the DHKP/C (Revolutionary People’s Liberation Party-Front). On the basis of a multitude of written and computerised evidence and testimonies, the actions of the applicants as messengers between detainees arrested for terrorist activities and the organisation’s hierarchy, their participation in the recruitment and training of members of the organisation, their links to the assassination of a prosecutor in his office and the propaganda material relating to the latter act were considered to be elements establishing their membership of the organisation. On 20 March 2019 the Assize Court found the applicants guilty as charged and sentenced them respectively to ten years and six months’ and thirteen years and six months’ imprisonment. The criminal proceedings in respect of the first applicant are still pending before the Court of Cassation.

5. On 3 January and 2 February 2020 respectively, the applicants started a hunger strike to protest against, among other things, the criminal proceedings initiated against them. On 5 April 2020 they announced that they had turned their hunger strike into a “death fast”.

6. On 23 July 2020 the applicants requested their release under Article 16 of Law no. 5275, which provides for the stay of execution of prison sentences.

7. According to the medical reports issued by the Forensic Medicine Institute on 29 and 30 July 2020, both applicants were declared to be in poor health due to nutritional deficiency. The reports concluded that the applicants’ state of health was incompatible with being held in detention and that their medical treatment should be pursued in a hospital. According to these reports, the applicants had been taking sugar, liquids and vitamin B1.

8. Subsequently, on 30 July 2020, the Assize Court dismissed the applicants’ request for release and ruling on the basis of the above-mentioned reports, it ordered that the applicants’ medical follow-up and treatment should be provided urgently in a hospital.

9. The applicants filed an objection against that decision, arguing that the Assize Court was only competent to decide on their release and it did not have authority to transfer them to a hospital against their will. They have further argued that their health condition deteriorated during their time in the hospital, as they were being held in worse conditions than those in the prison. Their objections were dismissed on 4 and 6 August 2020 respectively.

10. On 10 August 2020 the applicants lodged an application with the Constitutional Court, requesting an interim measure for their release. Relying on a medical assessment delivered by Turkish Medical Association, they pointed out that they might get infected by the Covid-19 virus in the hospital and risked dying because of their poor health condition.

11. On 11 August 2020 the Constitutional Court dismissed the interim measure request, holding that the applicants had been hospitalised on the basis of the Forensic Medicine Institute’s reports and that they had been provided with the necessary medical treatment. The Constitutional Court stated that the applicants had not claimed any specific inadequate conditions in the hospital, either regarding Covid-19 or other medical reasons. The Constitutional Court concluded accordingly that the fact that they had not been released, in itself, did not constitute a risk to the applicants’ lives or their physical integrity. According to the information in the case-file, the examination on the merits of the case is still pending before the Constitutional Court.

(a) Mr Aytaç Ünsal

12. On 30 July 2020, Mr Aytaç Ünsal was transferred from prison to the Kanuni Sultan Süleyman Training and Research Hospital. A committee composed of seven specialists was set up in order to carry out his medical follow-up and treatment. The committee included doctors specialised in internal medicine, endocrinology and metabolic diseases, neurology, cardiology, psychiatry, infectious diseases and clinical microbiology, as well as a nutritionist. According to the applicant’s medical file, he was checked daily, but he categorically refused medical treatment.

13. On 31 July 2020 a relative of the applicant was given permission to stay with him in the hospital as a care-giver.

14. On 5 August 2020 the committee issued a report, stating that the applicant was continuously informed about the damage caused to his body because of the hunger strike, about the types of medication that would be used if he accepted treatment, about life-style suggestions which could be of critical importance to his health and about how he could obtain medical assistance if needed. However, the applicant refused examination or treatment. The report noted that during his stay in the hospital, the applicant had been conscious and that he showed no symptoms of a psychotic anomaly. It was also noted that in view of the applicant’s severely weakened immune system caused by his current health condition, his long-term hospitalisation posed a risk due to the Covid-19 pandemic and other hospital infections. Lastly, it was concluded that in view of the relevant national and international agreements which provided that no medical intervention could be made for a conscious patient who refused treatment, it was considered that the applicant’s hospitalisation and his being kept outside of the hospital would make no medical difference and that he could be discharged from the hospital if he so wished.

15. On the same day the applicant drafted a statement noting that he had been informed about the risks associated with a hunger strike and the refusal of treatment. He maintained, however, that he refused all examination and treatment even when he lost consciousness. He concluded that he wanted a fair trial and asked to be discharged from the hospital.

16. On 14 August 2020 the same committee issued another medical report similar to the previous one, but it indicated that the applicant’s life was at risk as he was on the 190 th day of his hunger strike.

17 . According to the information provided by the Government, the hospital where the applicant had been kept was a fully-fledged establishment with surgery and internal medicine units. The hospital had a capacity of 695 beds and 139 intensive care beds in five buildings, and one of these buildings was dedicated to Covid-19 treatment. The hospital employed 294 doctors and 291 auxiliary staff. The applicant was accommodated in a room of 30 square metres, equipped with a bathroom, a toilet, two beds and two seats. The fixed double-glazed window in the room could not be opened and there were iron grills between the panes. The room received natural light from the window all day. The ventilation of the room was provided by the central system of the hospital. There was a common area outside of the room, where the gendarmerie and prison officers stayed on duty. A window in that area overlooked the applicant’s room for security purposes. The part of the hospital consisting of the applicant’s room and the common area was separated from the rest of the hospital by an iron door. The Government maintained that there was no physical contact between the applicant and the personnel on duty or visitors from the outside. Moreover, any material brought from the outside was kept in an isolated room for 24 hours before it was handed over to the applicant.

18 . The Government also indicated that persons who requested to stay with the applicant as accompanying care-givers were subject to prior approval of the Bakırköy Public Prosecutor’s Office and the physician responsible for the applicant’s hospital department. Upon receipt of such approval, the relative concerned would be allowed to stay with the applicant on the condition that his or her Covid-19 test result was negative and that he or she did not have any other disease. The assisting relative could enter the room after going through the required disinfection procedure and had to maintain social distancing, make no physical contact and wear a mask and gloves. The applicant could also meet with his lawyers based on a similar procedure. During the period between 3 and 26 August 2020, the applicant had 25 meetings with his lawyers in compliance with the requirements of social distancing, disinfection and wearing a mask.

19. The Government maintained that although the scientific advisory board’s report of 5 August 2020 had found that there had been no difference between the applicant’s staying in the hospital or outside, as the applicant had refused treatment, he could not be placed in a penitentiary institution, because the previous medical report of the Forensic Medicine Institute dated 29 July 2020 had concluded that his medical treatment should be provided in a hospital.

20. A report dated 27 August 2020 indicated that the applicant, who was on the 206 th day of his hunger strike, had been informed again of the medical complications related to the hunger strike, however he had refused all examination and treatment. It further noted that the applicant was conscious and well-orientated and that he was provided with vitamin B1, lemon, sugar and water in line with his request.

21. On 3 September 2020, during its review of the appeal against the applicant’s conviction, the Court of Cassation ordered that the execution of the applicant’s sentence be suspended until his recovery pursuant to Article 16 § 2 of the Law no. 5275 on Execution of Penalties and Security Measures. The applicant was released on the same day from the hospital.

(b) Ms Ebru Timtik

22. On 30 July 2020 Ms Ebru Timtik was transferred to the Bakırköy Dr Sadi Konuk Training and Research Hospital. A similar scientific committee comprising specialists from seven medical branches was also composed in that hospital (see paragraph 12 above).

23. On the same day the applicant stated in writing that she had been brought to the hospital against her will and that she would accept treatment only when she was released. She requested to have a meeting with her lawyers and to be provided with solely vitamin B1, water, sugar and salt. She noted that she had been informed of all the risks and that she accepted them all, including death. Subsequently, she filled in and signed an official form provided by the hospital wherein she refused examination and treatment.

24. The medical committee’s report of 31 July 2020 noted that the applicant did not accept examination or treatment. The committee found that the applicant was conscious and well orientated, that her skin appeared pale and dry and that she had extensive muscular atrophy. The report also noted that the applicant had difficulty standing up, walking and performing her personal needs. On 1 August 2020 a relative of the applicant started staying with her in the hospital.

25. In the meantime, the applicant wrote another statement noting that she had been brought to the hospital against her will and was deprived of the opportunity to be treated by doctors of her own choosing. She also noted that she had been informed about the consequences of her acts but maintained that she would refuse all examination and treatment until released.

26. On 4 August 2020 the committee issued another report indicating that the internal medicine clinic doctors examined the applicant daily.

27. The report of 14 August 2020, issued by the committee noted that on 31 July, 4 and 14 August 2020 respectively the applicant had been once again provided with detailed information as to the damage that had been caused due to the hunger strike and about possible treatments. The report stated that the applicant was conscious and well-orientated and concluded that as she did not accept treatment, and she only needed medical supervision.

28 . According to the information provided by the Government, there were hospitals dedicated to the treatment of Covid-19 patients and Bakırköy medical campus in which the applicant was being accommodated was not one of them. This hospital comprised fourteen buildings in two separate campuses and had a capacity of 1,612 beds and 107 intensive care beds. It employed 342 doctors and 372 auxiliary staff. The applicant remained in the A-Block hosting the Internal Medicine, Medical Oncology and Endocrinology services. This building had eleven floors and the applicant’s room was situated on the 2nd floor, at the end of the corridor organised for detainees. On the first floor of the A-Block there was an operating room and there were adult intensive care units. This building also contained medical units such as radiology, nephrology, endoscopy, ultrasonography, and intensive care units for cardiovascular illnesses. The hospital room where the applicant stayed had a surface area of 29 square metres and included a bathroom, a toilet, two beds and two sofas. The window allowed natural light but could not be opened and had external security bars. The room had central air conditioning and ventilation. There was a 12 square metre duty area for police officers, which was separated from the detainee’s room by a metal door with a window. Only the doctors and other health service officers were allowed to enter the room. The applicant’s accompanying person could also enter the room, on the condition of complying with the requirements of a negative Covid-19 test, disinfection, wearing a mask and keeping the distance. The representatives of the applicant were also requested to comply with disinfection, mask and distancing requirements.

29. On 27 August 2020 the applicant died as a result of her hunger strike.

COMPLAINTS

30. Relying on Articles 2, 3, 5, and 18 of the Convention, the applicants complained of being held in detention, alleging that the hospitals they had been held in were dedicated to Covid-19 pandemic treatments. They considered themselves at risk due to their fragile state of health caused by their hunger strike. They also complained that the conditions of their hospital room were worse than those in the prison, as they did not receive sufficient natural light, that the constant artificial light of the corridors constituted a particular nuisance and that there was no fresh air as the windows could not be opened. They also complained about the disturbing noise made by the air conditioning and the officers outside the room

THE LAW

31. The Court finds that the application falls to be examined under Articles 2 and 3 of the Convention, which read as follows, respectively:

Article 2

“1. Everyone’s right to life shall be protected by law. (...)”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

32. The Government indicated that contrary to the allegations of the applicants, the hospital buildings in which the applicants had been kept were not among those dedicated to the treatment of the pandemic. They also argued that the applicants had not complained about any possible lack of medical treatment or requested to be transferred to another hospital. The applicants had also refused to cooperate with the doctors, as well as with the Court by not ending their hunger strike despite the Court’s invitation to that end. The Government also considered that the applicants’ hospital rooms were in good condition and that the national authorities had duly examined and dealt with the situation caused by the applicants themselves.

33. The Court observes that Mr Ünsal was released from hospital on 3 September 2020. Ms Timtik died in the hospital on 27 August 2020. The Court will not examine whether Ms Timtik’s heir may have a sufficient interest in the continued examination of the application ( López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 72-73, 17 October 2019, Kaburov v. Bulgaria (dec.), no. 9035/06, §§ 51-53, 19 June 2012) as it considers it to be inadmissible for the reasons stated below.

34. As regards the principles concerning the compatibility of the conditions of detention with a detainee’s state of health, the Court refers to the judgments in the cases of Price v. the United Kingdom (no. 33394/96, §§ 25-30, ECHR 2001-VII) and Tekin Yıldız v. Turkey (no. 22913/04, §§ 70-84, 10 November 2005).

35. The Court also reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015). Therefore, it is not enough that the treatment has unpleasant aspects (see Guzzardi v. Italy , 6 November 1980, § 107, Series A no. 39, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V).

36. The state of health, age and a severe physical disability constitute situations in which capacity for detention is assessed under Article 3 of the Convention. Although this provision cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France , no. 67263/01, §§ 38-40, ECHR 2002-IX). In this context, it is for the national judicial authorities to decide whether or not to follow a medical recommendation for the release of a detainee by taking steps for the necessary care or treatment, in cases where they decide not to follow such a report (see Sakkopoulos v. Greece , no. 61828/00, § 44, 15 January 2004, and Erdem Onur Yıldız v. Turkey , no. 9655/07, §§ 30-31, 27 October 2009).

39. The Court also observes that the applicants were assisted by relatives who were allowed to stay as accompanying persons and both applicants were extensively informed about all possible effects of the hunger strike, as well as the type of treatment which would be administered if they accepted it. However, the applicants categorically refused examination and treatment, and did not comply with the invitation of the Court for them to stop the hunger strike and to cooperate with the medical authorities.

40. The Court notes that the relevant judicial and administrative authorities immediately recognised the risks which the hunger strike entailed for the applicants’ health and life and took the steps they considered necessary to alleviate those risks. The national authorities cannot therefore be criticised for not having properly examined and managed the situation as required by Articles 2 and 3 of the Convention. There is no allegation or element indicating that during their hospitalisation the applicants were deprived of any treatment or assistance they could have received if they had undertaken a hunger strike while not being detained (see Rappaz , cited above, § 57, Horoz , cited above, §§ 30). For the same reasons, the fact that Mr Ünsal was released and Ms Timtik died in hospital does not have an effect on the conclusion of the Court.

41. Making an overall assessment of the relevant facts on the basis of the evidence adduced before it, the Court concludes that this was not a situation in which the necessary medical care or treatment of the detainees required measures other than those adopted.

42. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 July 2021.

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Stanley Naismith Jon Fridrik Kjølbro Registrar President