(Application no. 7496/03)
8 January 2009
This judgments will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Filiz Uyan v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 2 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The proceedings against the gendarme officers
2. The proceedings against the male prison guard
3. The proceedings against the doctor
II. RELEVANT LAW AND PRACTICE
“...during the medical examination at the hospital of those who are remanded or convicted in connection with terror-related crimes, the gendarmerie will wait in the consultation room to secure the area, at a distance so as not to hear the conversation between the doctor and the patient. Where women prisoners are remanded or convicted in connection with terror-related crimes, if the consultation room has protection the gendarme officers will wait outside the consultation room. If the room does not have protection the gendarme officers will wait in the room at a distance so as not to hear the conversation between the doctor and the patient.”
“Remand and convicted prisoners who are transferred to health institutions from Closed Prisons and Detention Centres and who are to be examined or hospitalised in these health institutions will be accompanied by an adequate number of guards, appointed by the prison administration, and the remanded and convicted prisoners' administrative formalities in the hospital will be carried out by these guards.”
Section 3 (Course of Action during Examination
and Treatment in Health Institutions)
“...handcuffs are not removed unless they hinder the treatment/examination and as long as their removal is not requested by the doctor.”
“... All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers...
If recourse is had to a civil hospital, the question of security arrangements will arise. In this respect, the CPT wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons. Other means of meeting security needs satisfactorily can and should be found; the creation of a custodial unit in such hospitals is one possible solution.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
27 As regards the Government's objection concerning the applicant's “victim” status, the Court reiterates that the word “victim”, in the context of Article 34, denotes the person directly affected by the act or omission which is in issue. In the present case, the applicant's complaint concerns the distress she allegedly suffered as a result of the fact that she had been taken to hospital for a gynaecological examination whilst handcuffed and under the surveillance of three male security officers. In the Court's opinion, whether or not the doctor conducted the medical examination has no effect on the applicant's victim status. In sum, the Court considers that the applicant was a victim of the impugned act and it dismisses this part of the Government's objection.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Zagrebelsky, Tsotsoria and Karakaş is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES ZAGREBELSKY, TSOTSORIA AND KARAKAŞ
To our regret, we are unable to agree with the majority that there has been a violation of Article 3 of the Convention in this case.
As the majority rightly points out in paragraph 30, in order to fall within the scope of Article 3 of the Convention the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In our view, the treatment of which the applicant in the present case complained did not attain the minimum level of severity within the meaning of Article 3 of the Convention, for the following reasons.
In the present case, the applicant, who had received a heavy prison sentence for being a member of a terrorist organisation, was taken to a civilian hospital to undergo an ultrasound scan. However, as her handcuffs were not removed and as the male security officers refused to leave the consultation room and waited behind a folding screen, the applicant did not give her consent for the scan and, in consequence, the doctor did not perform the examination. There is no dispute on this issue between the parties.
In this connection, we note that under section 66 of the Protocol for Prisons, signed by the Turkish Ministries of Justice, Health and the Interior and dated 6 January 2000, where female detainees have been remanded in custody or convicted in connection with terrorism-related crimes and are required to seek medical assistance, gendarme officers are required to wait outside the consultation room if the latter has adequate security. If the room has no security, as in the present case, they are to stay in the consultation room, remaining at a sufficient distance behind a folding screen to avoid hearing the conversation between the doctor and patient. The CPT Standards, referred in the judgment, also state that all medical examinations of prisoners should be conducted out of the hearing and, unless the doctor concerned requests otherwise, out of the sight of prison officers. There is no explicit requirement for male security officers to leave the consultation room when female convicts are involved or for the removal of handcuffs during an examination.
In our view, in paragraphs 32 and 33 of the judgment the majority has gone beyond its task by taking the place of the domestic authorities in suggesting which alternative measures could have been taken and in basing its decision on the fact that the Government failed to demonstrate that the applicant did not present an acute security risk. We consider that it is for the domestic authorities to assess the circumstances and to decide which security measures should have been imposed during the examination. It should be borne in mind that the applicant, a convicted terrorist, was being examined in a civilian hospital and, under section 3 of the Regulations on
the External Protection of Prisons and Transfer Procedures, it was for the doctor to decide whether the use of handcuffs hindered the examination. In the present case, the applicant was taken to hospital for an ultrasound scan, and we do not see how the use of handcuffs could have hindered the examination.
Furthermore, although the doctor subsequently received a warning from the Izmir Medical Association for not having taken the initiative to request the gendarme officers to leave the room, in our view the presence of the gendarmes was required by law in the circumstances of the present case, and the doctor had no authority to request otherwise. As regards the use of handcuffs, it was at the discretion of the doctor to request the removal of the handcuffs if she considered that they would hinder the examination of the applicant. However, given the security risk presented by the applicant and the hospital's material conditions, we do not find that the doctor's conduct was to have been unreasonable or disproportionate in the circumstances of the case. She merely complied with the domestic legislation in force at the time.
Last but not least, it should not be forgotten that the applicant was not forced to undergo the ultrasound scan. When she did not give her consent, she was returned to the prison. Furthermore, there is no allegation that her health deteriorated in consequence.
In this connection, we would refer to the judgment in Devrim Turan v. Turkey (no. 879/02, 2 March 2006).The applicant in that case, who was being held in police custody, was taken to hospital on the first and last days of custody for a gynaecological examination. However, since she refused to grant consent, the doctors did not perform any gynaecological examination. In paragraphs 20 and 21 of the Turan judgment, having regard to the fact that when the applicant refused to undergo a gynaecological examination, no force was used against her and the doctors had refrained from performing the said examination, the Court considered that the sole fact that the applicant was taken to hospital for a gynaecological examination on the first and last days of her custody did not attain the minimum level of severity within the meaning of Article 3 of the Convention.
We do not believe that the facts of the present case are different from those in the Turan case. In the Turan case, the Court declared the applicant's complaint inadmissible as no gynaecological examination had been performed. The situation is exactly the same in the present case.
Having regard to the above considerations, we find that the treatment complained of by the applicant did not attain the minimum level of severity to amount to degrading treatment within the meaning of Article 3 of the Convention.