Hunger Strikes as a Right and Freedom - I -
Turkey has a considerably long-standing democracy adventure that can be started from the early 19th century’s Ottoman within the non-centralist powers gaining power in the periphery. The hunger strikes as a way of expression and a protest aim to make an impact on democracy, given its’ first example in 1950, with Nazım Hikmet’s hunger strike. Until today, supposedly thousands of Turkish citizens have died or wounded and left their families behind them as a result. This is why hunger strikes and death fasts must be examined in the context of basic rights and freedoms. In this article, I will try to ask some questions and I will particularly try to avoid making certain evaluations. At first, the relation between freedom of expression and hunger strikes will be assessed. Then I will touch upon a more complicated issue; the right to live in the coming weeks.
Hunger Strike as a Freedom of Expression
The right to freedom of expression includes the right to freely express opinions, views, ideas and to seek, receive and impart information of any kind regardless of frontiers (protection against the Leviathan) no matter how disturbing, marginal, or less common the context is. Therefore, without taking the harshness or roughness of the expression into consideration, the right to freedom of expression grants and protects the right to say something. Also, people do not need to really say something in words in order to express their feelings, thoughts, opinions, political views etc. For example, handshaking, gestures are also a way of communication in which words are unnecessary. The example of the Nazi salute or so-called “Grey Wolfs” -banned by French authorities recently- stands for a political view can be considered as a more relevant one to our topic. Besides, not just political rights, but also the freedom of expression is what forms an opportunity for people to get involved in decision-making processes. Hunger strikes are also a way of expression is aiming to have an impact on decision making and that is why it should be protected. It is an act to refuse to eat in order to make a protest; it then eventually turns into a death fast depending on the seriousness of the issue and approaches of the parts.
First of all, a relevant article from the Turkish Constitution must be taken into consideration:
Everyone has the right to express and disseminate his thought and opinion by speech, in writing or in pictures, or through other media, individually or collectively. This right includes the freedom to receive and impart information and ideas without interference from official authorities. ... “
As can be understood from this Article, everyone has the right to express his thought and opinion through numerous (not mentioned numerous clauses in the article) ways. Hunger strike which refuses to eat in a certain period of time aims to have an impact on politics, not to die. Hence, the right to pursue a hunger strike, death fast, or a sit-down strike in some cases as a way of expression, must be protected and respected by the State.
Of course, one should be aware of the restrictions to the freedom of expression given in the same Article.
“(As amended on October 3, 2001; Act No. 4709) The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary. “
The general restriction reasons mentioned in Article #13 (before the amendment - October 3, 2001; Act No. 4709) do not apply to any other Articles including freedom of expression. So, ambiguous terms such as “public morality” can be excluded. The restriction reasons mentioned above are given in Article #26 and are the only restriction reasons valid for this Article. Therefore, the freedom of expression via hunger strikes can be restricted only in these cases.
So, in cases when there is no violation of these clauses are at stake, hunger strikes-death fasts can be accepted as a way of expression and should be protected. Even though, this article brings a better protective zone for people to a certain extent, clauses given in Article #26 such as “national security, public order, public safety” are still leaves an open door for subjective evaluations and prejudice.
Amnesty International’s report published on 6th of August, 2019 is also accepting hunger strikes within the extent of the freedom of expression:
“During the hunger strikes, Amnesty International received reports that the Turkish authorities failed to respect the rights of prisoners on hunger strike as many faced disciplinary punishments due to their peaceful protest. Amnesty International also received reports of regular police intervention at peaceful protests across the country preventing protestors from gathering to show solidarity with thousands of people on hunger strike. Prevention of peaceful protests breaches protestors’ rights to freedom of expression and peaceful assembly.”
Such disciplinary actions taken against prisoners pursuing hunger strike includes one month ban from sport and cultural activities as per Article 40(2)(g) of Law 5275 - 20 days of solitary confinement on the allegation that the prisoner has propagated for criminal organizations as per Article 44(3)(l) of Law No. 5275 for having discussed being on hunger strike and reasons for it on the phone with a relative - ban from certain cultural and sport activities. So at this point, one should ask whether this restriction poses a proportionate restriction or not?
From my perspective, pursuing a hunger strike is still a powerful tool for impacting the political atmosphere that does not threaten national security, public order, public safety, and others mentioned in the Constitution. Of course, each case must be considered separately with its’ own nature. However, accepting these acts as a terrorist act without questioning, examining, and understanding it, is not understandable and acceptable according to law.
It should be noted that hunger strikes and death fasts are most likely to happen when communication channels do not work properly in a democratic society. One should be able to address the authority without any difficulty and the demand of the parties should be evaluated in the limits of the law. Once this mechanism fails, democracy fails and the violation of people’s rights and freedoms become much more possible and visible. Therefore, it becomes harder to govern and a chaotic atmosphere spreads.
An intervention performed by the State must be in compliance with the law and the State must seek a fair balance and proportionality while restricting the right. So, prohibiting people from starting hunger strikes without any reason or feeding people without permission is not acceptable or proportionate. Because one possibly chooses hunger strike as the only way of expression due to feeling desperate and hopeless about drawing the attention of officials and lifting this opportunity may mean leaving people without any alternative in some cases.
Lastly, it should be remembered that abuse of a right is not protected by the Law and an intervention might be legal and legitimate if that happens. Also, the ECtHR’s margin of appreciation doctrine leaves member states with a chance to be more active while intervening. For instance, a hunger strike that takes place in Turkey can be assessed as legal and within the limits of freedom of expression by ECtHR, while unlike the Court, State can assess the exact same act as a threat to national security. And in that case, the Court applies the margin of appreciation doctrine and refuses the claim of the violation. The reason why ECtHR gives priority to member states’ assessment is that the nature of the issue and sui generis facts of the event and country can be judged better than the ECtHR judges. Even though the European Council aims to have a standard understanding among the member states, each member has different and sui generis problems that have to be handled carefully and this is why the margin of appreciation doctrine can be accepted as meaningful.
Questions have to be asked in order to have a better democracy; this is what I tried to do.