2011: Restrictions of freedom
The conditions for involuntary internment
The similarity, under the Turkish Civil Code (Türk Medeni Kanunu = TMK, No. 4721, dated 22.11.2001), between that the conditions for the appointment of a guardian (Arts. 405, 406) and the conditions for involuntary interment (TMK Art. 432) is fairly apparent. However, one does not necessarily need to have a guardian appointed before s/he can be involuntarily interned. Still, in most cases, it is hard to deny the need for a guardian in cases where a person is being interned.
Involuntary internment as a protective measure was not specifically covered by the former Turkish Civil Code (Türk Kanunu Medenisi), No. 473 which had remained in force from 1926 to the end of 2001. It was finally introduced by the new TMK, No. 4721, dated 22.11.2001 which entered into force on 01.01.2002. As the source of inspiration, the Turkish Legislator cited selected amendments made in the Swiss Civil Code (Zivilgeseztbuch = ZGBArts. 397a – 397f, 405a) which had entered into force in Switzerland on 01.01.1981. Applicable provisions of the Civil Codes of Switzerland and Turkey were drafted to cover common legal issues of a wide-ranging group of people who need special attendance. Therefore, the relevant Code provisions (which are cited in this paper) do not only apply to those suffering from various types of mental disorder, but also to addicts of alcohol/illegal drugs, patients with highly dangerous infectious diseases and vagabonds (serseri). In other words, the same Code provisions are more or less also applicable to other persons in this wide-ranging group.
On 22.02.1983, two years after the said 1981 amendments in the Swiss ZGB, the Council of Europe Committee of Ministers adopted a Recommendation: R (83) 2 (=R (83) 2), concerning the legal protection of persons suffering from mental disorder placed as involuntary patients, which also covers related issues in detail. Although no direct reference has been made to R (83) 2 in the legislative commentary of TMK, the earlier Swiss ZGB articles and accordingly certain TMK articles contain provisions compatible or comparable with R (83) 2, yet not in every aspect. (Some of these shall briefly be mentioned below.)
The conditions for involuntary internment as a protective measure within the scope of TMK Art. 432, in particular those pertaining to dementia, may be summarised as follows:
1.The grounds for the involuntary internment of a person are to be prescribed and listed by Law and includeinter alia, mental illness (akil hastaligi) and mental weakness (akil zayifligi).
Naturally, the involuntary internment of a person is only possible as an exception to the constitutional rule. In line with Article 5(1)(e) of the Convention for the Protection of Human Rights and Fundamental Freedoms (as amended), to which Turkey is a party, Art. 19 of the 1982 Turkish Constitution (=Anayasa, as amended) provides that “Everyone has the right to liberty and security of person. […] No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law: […] execution of measures taken in conformity with the relevant legal provision for the treatment, education or correction in institutions of a person of unsound mind […] when such [here listed] persons constitute a danger to the public.” The “grounds” are limited to those listed in the Constitution and their scope cannot be expanded by analogy.
It may be helpful here to consider the definition of the terms “mental illness” and “mental weakness” as used in the Turkish legal context. “Although TMK refers to “mental illness” in various provisions, there is no definition of mental illness in TMK. Not every mental disorder which may be defined as a mental illness by medical science is to be understood as a mental illness in the meaning of TMK. What is legally relevant within the meaning of TMK is the issue of the existence or the non-existence of the power of judgement at a given time when a person enters into a legal transaction or is involved in a legal act. Not all mental illnesses result in the lack of the power of judgement of the person with the mental illness. It is also crucial to determine whether the lack of power of judgement was permanent or temporary, and if temporary, to also determine when it started.
Mental weakness (akil zayifligi) as referred to but not defined in TMK, is not a kind or degree of mental illness; but rather a different mental disorder which a person may be born with or may develop later in life. It may contain elements of insufficiency, underdevelopment, standstill or reduction of mental functions. Dementia is an example of this. Even if medical science may label some of these cases as mental illness, from a legal perspective, they are treated as mental weaknesses. Most people with mental weaknesses retain their power of judgement. However, from a legal perspective, a person with a mental illness does not have power of judgement. As this power is not always lost forever and may come and go in some cases, it is important to examine its existence at the time of the person’s action in question”.
Because of its severe consequences for any individual, the involuntary internment of such persons necessitates a complete medical examination by an official medical committee. Comprehensive neurological, psychiatric, neuropsychiatric examinations and tests must be carried out.
2.Moreover, any existing ground for the involuntary internment of a person should also pose danger for the society in a given case.
In other words, “danger for society” is an additional requirement to be considered in each case.
3.Only adults (ergin) can be involuntarily interned for one of the grounds listed under TMK Art. 432.
Children are excluded from the scope of this Art. 
4.The involuntary internment of such a person is permitted only when his/her personal protection cannot be provided for in any other (more suitable) method.
For example, an aggressive yet wealthy person with mental illness may be confined to his/her own house, provided that medical treatment by private doctors is possible and all costs can be covered by his/her own assets. In such a case, the need for “an institution” cannot be established.
5.On the other hand, the burden inflicted upon their entourage/environment by such relatively dangerous persons is also to be taken into account.
Society is generally expected to tolerate such persons to a certain extent. Such a person can involuntarily be interned, as the last resort, only when the burden for his/her entourage/environment becomes too great in a given case.
6.The sole purpose of involuntary internment is to treat, educate or correct such a person.
If these purposes can be effectively achieved only in an institution, it is necessary that such an institution is appropriately established before someone can be put into it.Ratio legisof involuntary internment is not solely isolating the person from his/her environment for the sake of his/her entourage/environment, but to help him/her, generally speaking, to improve him/herself.
At this point, rough comparisons in three issues may be made between R (83) 2 and the Turkish Regulation of Patients’ Rights (Hasta Hakları Yönetmeliği = HHY) of 01.08.1998 drafted by the Ministry of Health (Saglik Bakanligi):
The right to be treated under the same ethical and scientific conditions as any other sick person and under comparable environmental conditions roughly corresponds to the right to equal treatment without discrimination under HHY Art. 5/c.
The right to informed consent to indispensible but risky medical treatments, involving consultation with the patient's legal representative, if any under R. (83) 2, Art. 5/2 corresponds to the less detailed HHY Art. 22.
Finally, the right to be protected from clinical trials of products and therapies not having a psychiatric therapeutic purpose on persons suffering from mental disorder, subject to placement under R. (83) 2, Art. 5/3, is comparable to HHK Art. 32/1,2. The latter forbids all research-oriented medical experiments, without the permission of the Ministry and the informed consent of the volunteer-patient.
7.Such a person is to be placed in an appropriate institution regardless of his/her will in this respect.
Note that the issue of the institution’s “appropriateness” was covered above.
8.So long as the above conditions are met or prevail, a person who has originally been admitted into an appropriate institution at his/her own request may be detained (alikoyma) in that institution in spite of his/her subsequent request (free will) to be released.
The procedure for involuntary internment
The authority to decide on involuntary interment and detention lies within the jurisdiction of the guardianship authority (Civil Court of Peace = Sulh Hukuk Mahkemesi) at the concerned person’s place of the residence (TMK Art. 19) or ‑in cases of emergency‑ at the place he/she happens to be at such time. The same authority, i.e. Court, is also authorised to decide on the release of the interned person from the institution (TMK Art. 433). TMK does not grant authority to doctors themselves, even in cases of emergency, to involuntarily intern a patient.
If such a decision is taken by a competent Civil Court of Peace at a place other than the interned or detained person’s place of residence, the Civil Court of Peace at the former place or others authorised by special laws (under TMK m. 405/II, administrative authorities, public notaries, courts and public registration clerks) are to notify the Court at the place of said person’s residence.
The decisions regarding involuntary internment or detention of a person are taken under the Code of Civil Procedure (Hukuk Muhakemeleri Kanunu, No. 6100 = HMK, in force since 01.10.2011), in simplified (basit) trial procedure (TMK Art. 437/I), provided that the following are observed (TMK Art. 436/I):
1.The person who may eventually be interned or detained shall be heard by the judge (TMK Art. 437/III); if he/has has a guardian, the judge should also hear the guardian (TMK Art. 403). If needed, the person shall be granted legal assistance i.e. access to the services of an appointed attorney at law whose fees are paid by the State (TMK Art. 437/II, HMK Articles 334‑340). Furthermore, at the time the judge finally gives a decision, he/she shall inform the person about the reasons of the decision and remind him/her in writing that s/he can raise an objection against it before the supervisory authority, i.e. before the Civil Court of General Jurisdiction.
Due to the “danger for society” aspect of internment, any concerned person may initiate this procedure. Likewise, public servants who in the course of their duties discover the existence of one of the grounds for involuntary internment are to notify the situation to competent guardianship authority at once (TMK Art. 432). TMK does not specifically list doctors among those who are obliged to notify. Art. 26 of the Ethical Rules for Doctors, issued by the Turkish Union of Doctors (Türk Tabipler Birligi)  in short, requires a doctor in exceptional emergency cases to act in his/her own discretion. However, this discretion solely granted for the interest of the patient and not the interest of society. Therefore, it cannot be easily said that a doctor, even in emergency cases, should notify the authorities for the involuntary interment of a patient. On the other hand, a doctors and medical staff are expected to notify competent authorities if they find out, in the course of their duties, that a crime may have been committed. Failure to do so is a crime under the Turkish Penal Code (Art. 280).
2.The person who has been interned in an institution shall be immediately informed in writing that he/she can raise an objection, at latest within ten days, before the supervisory authority (Civil Court of General Jurisdiction) against the detainment decision or the denial of the request for release from the institution.
3.All requests which require a decision of the Court shall be forwarded to the competent judge without delay.
4. The guardianship authority, i.e. Civil Court of Peace, or judge which had previously decided for the detention may in the light of the given circumstances postpone the execution of the decision (TMK Art. 436/I/4).
5.A decision about persons suffering from inter alia, mental illness and mental weakness can be given only after the report of an official medical committee has duly been obtained. The supervisory authority (Civil Court of General Jurisdiction) may waive this requirement where the guardianship authority (Civil Court of Peace) has previously applied to an expert-witness.
Duration of involuntary internment
The involuntarily interned person is to be released from the institution as soon as his/her condition permits this (TMK Art. 432/III). The request for release may be made by the interned person as well as by the administrators of the institution if they see this fit.
The right to appeal
The person who has been interned or others close to him/her may raise an objection, within ten days starting from the date of notification, against this decision before the supervisory authority. The same right to objection may be invoked against the denial of the request for release from the institution (TMK Art. 435).
The specific rights of those who are placed as involuntary patients prescribed under Art. 6 of R (83) 2 (see above), in particular the right “to communicate with any appropriate authority, the person mentioned in Art. 4 of R (83) 2 and a lawyer, and to send any letter unopened” are not exactly added to the text of relevant Turkish Codes. Nevertheless, Articles 5/d and 39 of the Turkish HHY (see above) refer to the inalienability of “personal rights” and “respect to humanitarian values” as well as the patient’s right to invoke these rights. These Turkish principles may be considered to roughly correspond and cover the said specific rights of the Recommendation including its Art. 10 which requires respect of the patient’s “dignity”.
Perpetrators of various acts constituting mistreatment and abuse of relatively weaker persons, such as those suffering from dementia, are punished by law, mainly the Turkish Penal Code (Türk Ceza Kanunu= TCK, No. 5237 of 26.09.2004)
Any person who performs acts which are bound to cause torment to another person shall be sentenced to a penalty of imprisonment for a term of two to five years. If such an act is committed against a person who isinter aliaphysically or mentally incapable of defending him / herself, the imprisonment term shall be three to eight years (TCK Art. 96.).
Any person, holding the duty of protection or observation of an individual who is unable to care for him/herself due age or illness, who abandons such person by leaving him/her by him/herself shall be sentenced to a penalty of imprisonment for a term of three months to two years. (TCK Art. 97/1). The penalty shall be increased if the victim suffers an illness, injury or death as a consequence of the abandonment (TCK Art. 97/2).
Any person who fails under the given circumstances to adequately assist an individual who is unable to care for him/herself due to age, illness, injury or any other reason, or who fails to notify at once the competent authorities of these circumstances shall be sentenced to a penalty of imprisonment for a term of up to one year or to a judicial fine (TPC Art. 98/1). If the victim dies as a result of such failure, a penalty of imprisonment for a term of one to three years shall be imposed (TCK Art. 98/2).
Any person who unlawfully deprives a person from exercising his/her right to go to or to remain in a particular place shall be sentenced to a penalty of imprisonment for a term of one to five years (TCK Art. 109/1). The use of force, threats and deception increases the imprisonment term i.e. two to seven years (TCK Art. 109/2). The term shall be doubled when committed againstinter aliaindividuals who are incapable of defending themselves physically or mentally (TCK Art. 109/3/f).
On the other hand, society is protected against any acts committed by those suffering from mental illness. This may also pertain to any harmful acts of those suffering from dementia insofar as a given severe case of dementia can be indentified as mental illness. Any person who neglects his/her duty to care for or look after a person suffering from a mental illness in such a way as to create a danger to the life, health or property of others shall be sentenced to a penalty of imprisonment for a term of up to six months or to a judicial fine.
A person who applies for a driving license is required inter alia, to submit a medical report, given upon an examination of a practitioner or expert doctor, which confirms that s/he is fit to drive. The relevant Regulation lists a number of medical conditions which adversely affect the fitness of a person, including “mental illness” (ruh hastaligi) in the form of severe mental illness, mental deficiency, dementia/senility (demans = bunama), behavioural disorder due to old age, personality disorder, severe behavioural disorder. If the examining doctor observes such a condition, the person is sent to an appropriate expert doctor for an adequate examination of this condition. This second level medical report shall be decisive. Such persons shall be denied a driving license.
If any of these listed perilous medical conditions come about after a person has already been issued a driving license and its results are coincidentally observed by the traffic police, the person shall be sent to a medical examination which shall be carried out by the medical board. If the said medical board finds that the driver has subsequently lost his/her fitness to drive, the driver’s license shall be withdrawn, until the person can -if at all- recover.
Mr Murat R. Özsunay, M.C.J., Attorney at Law, Bars of Istanbul & Frankfurt, was the author of the above text on the legal situation in Turkey
 Compare with R (83) 2 (Council of Europe, Committee of Ministers) Art. 9, see also this paper p.1 par. 3.
“The placement, by itself, cannot constitute by operation of law, a reason for the restriction of the legal capacity of the patient.
However, the authority deciding a placement should see, if necessary, that adequate measures are taken in order to protect the material interests of the patient”
 However, the specific Art 314a of the Swiss ZGB regarding involuntary internment of a minor under parental power (velayet) for his/her own protection was not adopted in Turkey. For related issues, see TMK Art. 347.
 “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […] the lawful detention of persons for the prevention […] of persons of unsound mind, […]”
 Kocaaga, Köksal, Koruma Amaciyla Özgürlügün Kisitlanmasi [An article], Gazi Üniversitesi Hukuk Fakültesi Dergisi, Ankara, 2006, c. X, s.1, 2, p. 38
 Kiliçoglu, Ahmet, Medeni Kanunumuzun Aile-Miras ve Eşya Hukuku’nda Getirdigi Yenilikler, Ankara, 2004, p. 162
 Zevkliler, Aydin, Kişiler Hukuku, Ankara, 1981, p. 58 et seq.,
 Özsunay, Murat, Legal Capacity and Proxy Decision Making in Dementia – National Reports – Turkey, Dementia in Europe Yearbook 2010, p. 181, 3.28.2 Definitions and use of terms
 Özsunay, Murat, ibid. p. 182, 3.28.3 Proxy decision making, 126.96.36.199 Guardianship, 188.8.131.52.1 Conditions for the appointment of a guardian, par. 1
 Compare with R (83) 2, Art. 2 which also reads “Difficulty in adapting to moral, social, political or other values, in itself, should not be considered a mental disorder”.
 Compare with R. (83) 2, Art. 3
 For interment of minors see TMK md. 446
 Kiliçoglu, Ahmet, ibid p. 41
 Compare with R (83) 2, Art. 1/2, 3
 Compare with R. (83) 2, Art. 4/1 for a different approach.
 Özsunay, Murat, ibid p. 183, 3.28.3 Proxy decision making, 184.108.40.206 Guardianship, 220.127.116.11.1 Conditions for the appointment of a guardian, par. 2
 Kocaaga, Köksal, ibid p. 45
 Compare with R (83) 2, Art. 1/1
 Compare with R. (83) 2, Art. 4/3
 Özsunay, Murat, ibid p. 183, 18.104.22.168.2 How guardianship is arranged, p. 185, 22.214.171.124.5 Measures to protect the ward from misuse of power, par. 1
 Compare with R. (83) 2, Art. 4/2
 Kocaaga, Köksal, ibid p. 43
 Compare with R. (83) 2, Art. 4/2
 For other crimes see also 1.1.3 Mistreatment/abuse
 Adopted from Swiss ZGB Art. 397e(4), however the wording in Turkish is imprecise.
 Compare with R. (83) 2, Art. 4/1
 Compare with R. (83) 2, Art. 8/1,2
 Kocaaga, Köksal, ibid p. 53
 Law on Highway Traffic (Karayollari Trafik Kanunu), No. 2918 of 13/10/1983 as amended, Art. 41/c
 Regulation on the required medical conditions and examinations of prospective drivers and drivers (Sürücü Adaylari ve Sürücülerde Aranacak Saglik Şartlari ile Muayenelerine Dair Yönetmelik) of 26.9.2006/26301, Arts. 4/2/(l), 9/1/a
 Law on Highway Traffic, No. 2918 of 13/10/1983 as amended, Art. 45
Last Updated: Wednesday 14 March 2012