CEDH · CASELAW;CLIN;ENG — 13 mai 2008

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Turkey - 52515/99 Judgment 13.5.2008 [Section IV] Article 8 Article 8-1 Respect for private life Gynaecological examination imposed on a detainee without her free and informed consent: violation   Facts : In 1997 the applicant, a German national, was arrested by Turkish soldiers on suspicion of membership of an illegal armed organisation, the PKK (Workers’ Party of Kurdistan) and handed over to local gendarmes. In 1998 she was convicted as charged and sentenced to imprisonment. In the meantime she lodged a petition with a public prosecutor’s office, stating that she had been subjected to a gynaecological examination without her consent. She further claimed that she had been stripped naked and sexually harassed by several gendarmes present during the examination. The applicant had requested the prosecution of both the gendarmes and the doctor. In 2002 the criminal investigation against the gendarmes was suspended by the Supreme Administrative Court. In 2004 the applicant was released and deported to Germany. Law :   Article 8 – The applicant had resisted the gynaecological examination until persuaded to agree to it. Given the vulnerability of a detainee at the hands of the authorities, she could not have been expected to have resisted the examination indefinitely. She had been detained incommunicado for at least nine days prior to the intervention. At the time of the examination, she had apparently been in a particularly vulnerable mental state. It was not suggested that there had been any medical reason for such an examination or that it had been carried out in response to a complaint of sexual assault lodged by her. It remained, moreover, unclear whether she had been adequately informed of the nature of and the reasons for the measure. In the light of the doctor’s statement, she might have been misled into believing that the examination had been compulsory. It could not be concluded with certainty that any consent given by the applicant had been free and informed. The imposition of a gynaecological examination on her, in such circumstances, had given rise to an interference with her right to respect for her private life, and in particular her right to physical integrity. Further, it had not been shown that that interference had been “in accordance with the law”, as the Government had not presented any arguments to the effect that the interference was based on and was in compliance with any statutory or other legal rule. The impugned examination had not been part of the standard medical examination applied to persons arrested or detained. Rather it appeared to have been a discretionary decision – not subject to any procedural requirements – taken by the authorities in order to safeguard the members of the security forces, who had arrested and detained the applicant, against a potential false accusation by the applicant of sexual assault. Even if this could, in principle, have constituted a legitimate aim, the examination had not been proportionate to such an aim. The applicant had not complained of having been sexually assaulted and no reason had been advanced suggesting that she would be likely to do so. Therefore, that aim was not such as to justify overriding the refusal of a detainee to undergo such an intrusive and serious interference with her physical integrity or seeking to persuade her to give up her express objection. The gynaecological examination which had been imposed on the applicant without her free and informed consent had not been shown to have been “in accordance with the law” or “necessary in a democratic society”. Conclusion : violation (five votes to two). The Court found no violation of Article 3 and a violation of Article   6. Article 41 – EUR 4,000 in respect of non-pecuniary damage. (See also Y.F. v. Turkey , no. 24209/94, Information Note no. 55)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes