(Application no. 15828/03)
17 March 2009
This judgment 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 Salmanoğlu and Polattaş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants' detention in police custody, medical reports issued in their respect and the investigation into their allegations of ill treatment
B. Criminal proceedings against the police officers
55. On 7 June 2005 the applicants appealed. In their petition, they maintained, inter alia, that the virginity tests had constituted a sexual assault.
C. Medical reports issued in respect of the applicants during the criminal proceedings brought against the police officers
1. Reports of the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University
2. Bone scintigraphy tests
3. Reports of the Sections of Expertise of the Forensic Medicine Institute in respect of Nazime Ceren Salmanoğlu
4. Reports of the Sections of Expertise of the Forensic Medicine Institute in respect of Fatma Deniz Polattaş
5. Reports of the Plenary Assembly of the Forensic Medicine Institute
D. Criminal proceedings against the applicants
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
The CPT expressed its views on the provisions of Turkish law concerning medical examination of persons in police custody in the following reports: CPT/Inf (2000) 17 § 19; CPT/Inf (2001) 25 §§ 64-66; CPT/Inf (2002) 8 § 42; CPT/Inf (2003) 8 § 41; CPT/Inf (2006) 30, § 25.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone.
1. The parties' submissions
2. The Court's assessment
a. As regards the alleged ill-treatment during the applicants' detention in police custody
92. As to the reports issued by 2nd, 4th and 6th Sections of Expertise of the Adana Forensic Medicine Institute and the bone scintigraphy test, the Court observes that these reports were issued following medical examinations of the applicants. However, they were carried out eight months to five years after the applicant's detention in police custody (see paragraphs 25, 58, 59 61 and 62 above). The Court considers that, with the passage of time, any physical scar of ill-treatment would either disappear or it would become impossible to determine the date on which the injury had been sustained. This is born out by the report of the 6th Section of Expertise which considered that the veracity of the second applicant's allegations of anal rape could not be assessed, since the rectal examination of 6 April 1999 had been conducted too long after the alleged sexual assault (see paragraph 62 above). Similarly, the 2nd Section of Expertise considered that the date on which the applicant's tooth had been broken could not be determined. Consequently, the Court cannot take these reports into account as evidence to prove or disprove the applicants' allegations.
b. As regards the alleged ineffectiveness of the investigation
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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted to the national currency of the respondent Government at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, less EUR 850 (eight hundred and fifty euros) granted by way of legal aid;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 17 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Francoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judges Sajó, Tsotsoria and Karakaş is annexed to this judgment.
PARTLY DISSENTING OPINION
OF JUDGES SAJÓ, TSOTSORIA AND KARAKAŞ
With all due respect, we have to dissent as to the finding of a substantive violation in the present case.
In this case there are conflicting medical opinions regarding the applicants' state of health. Examinations in the immediate aftermath of the alleged ill-treatment produced no medical evidence of physical abuse. Four months after the contested facts, the Turkish Medical Association, a respectable professional medical association dealing with professional education, fees and professional ethics, with representation on the Turkish Ministry of Health Central Ethics Committee, issued an opinion on those medical examinations without re-examining the applicants. The opinion states that the complaints made by the applicants were consistent with those that genuine victims of violence and rape would have made. Secondly, in accordance with their deontological principles, they criticise the examination procedure applied by the doctors as not being in conformity with the standards of the Ministry of Health. These views concern examinations conducted upon the applicants' discharge from police custody (paragraph 23 of the judgment).
Contrary to the majority's finding, we cannot disregard the results of repeated medical examinations which were conducted shortly after the alleged abuse, as the purported improprieties do not concern the applicants' physical condition. Moreover, the report of the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University is based on examinations that took place more than a year after the contested events. More importantly, the finding of the Centre refers to post-traumatic stress disorder. The existence of such disorder does not prove anything about its origins. It may well be that the applicants' psychological problems had to do with the stress of the detention, or the long-term sentences they had been given, or were even related to remorse for the acts for which they had been convicted. The diagnosis itself remains contested in the light of the decision of the highest expert body in the matter, namely the Plenary Assembly of the Forensic Medicine Institute. Given that the medical opinions are conflicting, and that the balance is overwhelmingly tipped against any indirect evidence of ill-treatment, in the absence of prima facie evidence and in view of the negative finding of a domestic court we cannot see here that the State's responsibility is established beyond reasonable doubt, even though the State has a certain burden of proof in the event of sufficiently strong, clear and concordant inferences. There is no prima facie sign of sufficiently strong inferences here, be it clear or even unclear. The Court itself is “unable to establish the complete picture” and believes that “it should have been possible to detect the ill-treatment which had such long-term psychological effects” (paragraph 97). Clearly, if it only “should have been possible” it cannot be said to have happened, especially as the existence of the post-trauma syndrome remains contested. And once again, even if the applicants were in distress, this is not conclusive as to the causes of the distress.
We voted for the finding of a violation of the procedural limb of Article 3 of the Convention because seven years of proceedings, after which they became time-barred, cannot satisfy the requirement of an effective investigation.
Lastly, we would like to mention that we found the application of the virginity test troubling, bordering on degrading treatment. However, the medical examination of persons in police custody constitutes one of the most essential safeguards against ill treatment (Türkan v. Turkey, no 33086/04, § 42). In this connection, we should like to recall that, in a situation where a female detainee complains of a sexual assault or requests a gynaecological examination, the obligation of the authorities to carry out a thorough and effective investigation into the complaint would include the duty to carry out the examination promptly (see, for example, Aydın v. Turkey, 25 September 1997, Reports 1997-VI, § 107). In its recent judgment in the case of L.Z. v. Romania (no. 22383/03, §§ 32-37, 3 February 2009), the Court found a violation of Article 3 of the Convention on the grounds, inter alia, that the domestic authorities had not ensured the detailed medical examination of an applicant who had complained of anal rape while in prison.
It is true that a female detainee may not be compelled or subjected to pressure to undergo such an examination against her wishes (see Y.F. v. Turkey, no. 24209/94, §§ 41-44, ECHR 2003 IX, and Juhnke v. Turkey, no. 52515/99, § 81, 13 May 2008). However, in the instant case, it seems that the applicants had a genuine opportunity to refuse to undergo the examination as, the second time they were asked, they were able to refuse it without difficulty. There is no evidence of their objecting to the first examination. For reasons of legal certainty, we find the requirement of written consent indispensable, and we would welcome an exception to the general rule regarding medical examinations. At least, very young people should not have to undergo such tests as the humiliation is virtually inevitable while the protection against ill-treatment resulting from such tests is limited, given the possibility of alternative forms of sexual abuse.
1. The 4th Section of Expertise gives medical opinions in cases where psychiatric opinion is needed. The 6th Section of Expertise is competent to give medical opinions on cases involving, inter alia, sexual violence.
1. The 2nd Section of Expertise is competent to give medical opinions in cases involving, inter alia, physical violence.