CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 septembre 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s85D2D43C { margin-top:0pt; margin-bottom:36pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sD551674B { margin-top:0pt; margin-bottom:0pt; text-indent:18pt; text-align:justify } SECOND SECTION Application no. 65472/11 Deniz YILDIZ against Turkey lodged on 29 September 2011 STATEMENT OF FACTS   The applicant, Ms Deniz Yıldız, is a Turkish national, who was born in 1981 and is serving a prison sentence in Sincan, Ankara. She is represented before the Court by Ms S. Coşkun, a lawyer practising in Ankara. The facts of the case, as submitted by the applicant, may be summarised as follows. While serving her prison sentence in Ankara, the applicant filed a petition to be granted a pardon by the President of the Republic on the ground that she was suffering from persistently active rheumatoid arthritis (“RA”). In order to determine whether the applicant’s condition fell within the scope of the President’s clemency power, she was referred to the Istanbul Forensic Medicine Institute for a medical examination on 9 March 2010. On 10 March 2010 on her arrival at the prison from the Institute at 10.30 ‑ 11.00   p.m., four female officers attempted to strip-search her, which included a genital inspection. The applicant, who was ordered to strip naked, allegedly for the first time, refused. She said that such treatment would be degrading and in contravention of the law. She also demanded that a routine body search should be carried out as usual. The officers then removed her clothing by force. According to the applicant, she was beaten up and her head was banged against the floor. She remained fully naked and was kept waiting in this state for 15 or 20   minutes. She managed to put on her clothes only with the assistance of officers because of her disease affecting her joints as well as the blows inflicted during the search. The officers treated the applicant roughly in dressing her. The applicant was subsequently referred to the prison doctor. Whether he examined her properly remains disputed. Other detainees witnessed the applicant’s condition when she returned to her cell. The applicant and the detainees who had witnessed her return lodged a complaint with the public prosecutor of Sincan against the execution officers concerned as well as the prison doctor. Following the applicant’s complaint, the female officers also lodged a complaint against the applicant, alleging that they had been struck by her. The public prosecutor of Sincan started an investigation, in the course of which he heard the applicant and the officers who had carried out the impugned search. The account of the events given by the officers can be summarised as follows. The chief officer informed the convict that a regular body search would be carried out in accordance with the law. She said in reply: “There is no need for a degrading strip-search, I do not recognise your laws, my duty is to resist you” and started insulting them. The officers held her hands and feet as she did not cooperate. She kicked and bit them. Despite her resistance, the officers accomplished the search. The officers did not force her to take off her underwear except her bra and did not touch her body. She then refused to put on her clothes. The officers waited for a while and then dressed her. When she was returned to her cell she chanted slogans. On 4 February 2011 the public prosecutor gave a decision of non-prosecution on the grounds that the prison doctor had found no sign of injury or physical violence on the applicant’s body and that according to the officers’ submissions she had resisted the search which was to be carried out in accordance with the law and had insulted them. He based his decision on the statements of the applicant, other claimants and the suspects, the report of the incident dated 10 March 2010, the medical report given by the prison doctor and video footage from cameras. In the copy of the decision that was served on the applicant the names of the female officers were blocked out. The applicant and other claimants filed an objection against this decision. In the meantime, criminal proceedings were initiated against the applicant in the Sincan Criminal Court of General Jurisdiction. She was charged with the offences of defamation and resistance to a public officer with a view to obstructing the performance of his or her duties. On 22 March 2011 the Ankara Assize Court upheld the public prosecutor’s decision of non-prosecution. On 6 April 2011 the applicant was notified of the final decision. COMPLAINTS The applicant complains under Article 3 of the Convention that she was subjected to inhuman and degrading treatment. She argues that it was even tantamount to torture in the specific circumstances of her case. In this connection she submits that as her joints are attacked by the RA, she is incapable of taking care of herself without the assistance of her cellmates. She points out that she is under aggressive chemical treatment and that on that day she was referred to the Forensic Medicine Institute to determine whether she could be granted a presidential pardon. She adds that she weighs about forty kilos. According to her, in light of the foregoing, it cannot be considered that she could resist the officers. Therefore, the use of force could not have been effected against resistance, hence could not be justified. She claims that she was beaten up by the officers who were fully aware of her condition and that the full body search carried out without her consent and her having been kept waiting naked amounted to torture. She further maintains that since there was no video recording in the search room, the officers could easily treat her arbitrarily. The applicant also complains under Articles 6 and 13 of the Convention that the authorities failed to conduct an effective investigation into her allegations. She points out that the public prosecutor discontinued the investigation relying on the statements of the suspects and the report of the incident as well as the medical report drawn up by them. She claims that video footage from security cameras in the corridors should have been examined and that other claimants, her friends who had witnessed her condition and lodged a complaint together with her, should have been heard in person. She further calls into question why the public prosecutor did not inquire about her health and physical condition. She submits that this admits of no consideration of individual circumstances. The applicant further contends that her rights to a fair trial and effective remedy were violated in that the names of the officers were blocked out in the copy of the decision served on her. The applicant also alleges a violation of Article 14 in that she was incapable of protecting herself, undressing and putting on her clothes due to her disease. QUESTIONS 1.     Has the applicant been subjected to a treatment in breach of Article 3 of the Convention on account of the strip search carried out on her arrival at the prison on 10 March 2010?   2.     For the same reason, has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?   3.     a)     Is there any policy of routine full body and/or strip searching of prisoners on entering the prison? What are the rules and regulations setting out the grounds for it and governing the procedure to be followed, in particular, in the event that a prisoner refuses to give consent to such a search? b)     Do the applicable laws and regulations leave room for taking into account individual circumstances which may contra-indicate the need for a strip search or require an adjustment to the manner in which it is being carried out?   4.     Having regard to the procedural guarantees enshrined in Articles 3 and 8 of the Convention, was the investigation in the present case by the domestic authorities in breach of Article 3 or Article 8 of the Convention?   5.     The State Party is kindly invited to submit the public prosecutor’s investigation file concerning the applicant’s allegations.