EHRM, 13-05-2008, nr. 52515/99

The applicant alleges that she was arrested by Turkish soldiers near Awaşin River in Northern Iraq within the context of a cross-border military operation conducted by the Turkish Army in the area on 5 or 6 October 1997.

According to the seizure protocol the applicant was arrested in a cave between the Ayranlı and Meşelik regions of Şemdinli, Hakkari on 15 October 1997. The official documents in the case file also mention that she was unarmed and carried a backpack which contained a first aid kit and photos and documents relating to the PKK (Workers' Party of Kurdistan), an illegal armed organisation1..

On 24 October 1997 the applicant was handed over to gendarmes at the Hakkari Gendarmerie Command. According to the search report drafted on that day, twenty-six photographs, a notebook, some handwritten documents, a suture needle, eleven syringes and two lancets were found in her possession.

On the same day the applicant was questioned by two gendarmes in the presence of an interpreter. The applicant refused to sign the document allegedly containing her statements.

On the same day the applicant was examined by a doctor, Mr A.Y., an obstetrician, who found no signs of ill-treatment on her body. This doctor also performed a gynaecological examination. The report issued by the doctor described the applicant as aggressive and presenting signs of mild depression. The report indicated whether or not the applicant was a virgin.

On 26 October 1997 the applicant was examined by another doctor, Mr M.G. who found no signs of ill-treatment on her body.

Afterwards the applicant was brought before a judge at the Van State Security Court, where she gave a statement with the aid of an interpreter. She refused to answer a number of questions and stated that she had been arrested twenty-two days before in Awaşin. The applicant retracted the statements she had made in custody, claiming that they were confused statements written by the gendarmes themselves. The court remanded her in custody.

On 28 October 1997 the public prosecutor at the Van State Security Court filed a bill of indictment accusing the applicant of membership of an illegal armed organisation, namely the PKK (Workers' Party of Kurdistan). In this respect, the prosecutor stated that the applicant had been in possession of medical supplies used by members of the PKK and that in photographs found on her she was with the leader of the PKK and other terrorists. He requested that she be sentenced and convicted under Article 168 § 2 of the Criminal Code.

The first hearing, held before the Van State Security Court on 4 November 1997 in the applicant's absence, was taken up with procedural matters, such as the measures to be taken to secure the presence of the accused and of a translator, Mr E. A.

In a hearing held on 4 December 1997 the applicant appeared before the court where she refused to give information about herself save for her date of birth and her mother's name. A translator was present at the hearing. The applicant was not represented by a lawyer. She stated that she had been arrested on 6 October 1997 and not on 15 October 1997. She further submitted that she did not know where she had been caught but that it must have been somewhere called Awaşin near a river. The applicant did not respond to questions asked by the court. When asked about the documents and photographs found in her possession the applicant only answered that they were hers. The applicant also refused the court's request for a sample of her handwriting. At the end of this hearing the court took certain procedural decisions to secure a sample of the applicant's handwriting and to receive information about the place of the applicant's arrest. The court also ordered a psychiatric examination.

On 30 December 1997 the court noted that a lawyer who had previously examined the case file had informed them that he would not take on the case. The applicant requested the court to appoint her a lawyer. The court refused this request on the ground that this demand did not meet the conditions of Article 138 of Code of Criminal Procedure (‘the CCP’) as applied to State Security Courts. Instead the applicant was given leave to appoint a lawyer and told to contact Mr O. F. at the German Embassy. During this hearing, at the applicant's request, the indictment was translated orally to the applicant.

At the next hearing, held on 5 February 1998, Attorney M. K. appeared before the Court as the applicant's representative. Documents from various authorities were read out, including a medical report from the Van State Hospital; the applicant and her lawyer insisted that despite the recommendation in the latter report there was no need for the applicant to be subjected to a further physiological examination. The lawyer requested the court to give him more time to examine the case file and to talk to his client.

In the meantime, German Interpol submitted information regarding the applicant to the Turkish authorities, particularly the fact that she was a member of an extreme left-wing organisation.

On 19 March 1998 the applicant, referring to the information submitted by German Interpol, stated in Turkish that she was not a member of any organisation. The applicant stated, in German, that she had been caught near Awaşin River in Kurdistan. When the court told the applicant that no such country existed under international law, the applicant stated that there was a country called Kurdistan and that she had been caught there. The applicant's defence submissions were read out by the translator, during which the court noted that the applicant interrupted constantly and stated that the translator was not translating her words properly. The applicant and her lawyer requested another translator and noted that there were close friends of the applicant in the room who could translate better. The applicant's lawyer claimed that the applicant had been caught in Iraq and that therefore Turkey did not have jurisdiction to try the applicant. The court dismissed the applicant's lawyer's allegations, noting in particular that in any event Turkey had jurisdiction to try the applicant, in view of the offence with which she had been charged under Article 4 of the Criminal Code.

In the meantime a certain Ms Hermanns' request to visit the applicant in prison was rejected by the authorities on the ground that detainees could only be visited by family members, their legal representatives or consular agents pursuant to Article 152 of the Directive on the Execution of Punishments.

At a hearing held on 30 April 1998 the applicant's lawyer requested the court to allow the trial to be filmed. The court noted that the hearings were public and that the press were allowed to take notes. It considered however that taking photographs and filming would disrupt the conduct of the hearing. They therefore refused the applicant's lawyer's request. The results of the graphology tests were read out, in response to which the applicant stated, in Turkish, that most of the documents were in her writing, although she did not know the exact number. The applicant's lawyer submitted that the applicant had been in detention more than the legal time allowed, and that she had been subjected to ill-treatment and a forced gynaecological examination in breach of her right to respect for private life. The court gave leave for the applicant's lawyer to complain about the alleged ill-treatment.

On 11 June 1998 the applicant's lawyers stated that the applicant had been subjected to a gynaecological examination without her consent and that she had been tortured during her detention. The prosecutor noted that the applicant had been arrested during security forces operations, which had also taken place in northern Iraq, and that she had been taken for a gynaecological examination because women terrorists claimed that they were raped when they were taken into custody. The prosecutor then submitted his observations on the merits. The applicant requested time to submit her final defence submissions.

On 23 July 1998 the applicant's lawyer claimed that the applicant had been questioned contrary to Article 135 of the Criminal Code and that therefore her statements given to the police should not be admitted to the case file. They relied on Article 3 of the Convention. The lawyer also stated that the applicant wanted to make a political defence in her own language. The applicant, on the court's inquiry, stated that she knew how to speak and read and write to a limited extent in Turkish but that she wanted to defend herself in her mother tongue. The applicant then read out her defence submissions, first in German and then in Turkish. The court noted that the applicant shouted out ‘Long live the PKK, long live our party leader Abdullah Öcalan’.

At the next hearing, held on 17 September 1998, the Van State Security Court, referring to the material evidence and the applicant's pro-PKK submissions before it, convicted the applicant as charged and sentenced her to fifteen years' imprisonment. Neither the applicant nor her lawyers attended this hearing.

On 6 January 1999 the applicant appealed.

On 10 March 1999 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. This decision arrived at the registry of the Van State Security Court on 7 April 1999.

In the meantime the applicant lodged a petition with the Hakkari 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 six or seven gendarmes present during the examination. The applicant requested the prosecution of both the gendarmes and the doctor.

On 22 October 1998 the prosecutor requested the Security Directorate to establish the identity of the doctors on duty at Hakkari State Hospital on 24 October 1997, as well as of those gendarmes who had taken her for a gynaecological examination.

On 30 November 1998 the prosecutor heard Mr A.Y., the doctor who had examined the applicant, who stated that the examination had been requested by the Hakkari Provincial Gendarmerie Command and that no gendarmes had been present at the medical examination. He further stated that she had not been forced to undergo a medical examination.

On 8 January 1999 the prosecutor heard Mr Y.Y, one of the accused gendarmes, who denied the accusations against him. In particular, he stated that he had only been responsible for the applicant during her detention and that he had not accompanied her to the doctor.

On the same day the prosecutor also heard Mr A. K., one of the accused gendarmes, who denied the accusations against him. He stated in particular that the applicant had been sent for a gynaecological examination to prevent accusations of rape.

On 22 April 1999 the prosecutor heard Mr A. S., another gendarme, who stated that he had had no involvement with the applicant.

On 8 June 1999 the Hakkari public prosecutor gave a decision of incompetence ratione materiae and transferred the investigation file concerning the gendarmes to the Hakkari Administrative Council.

On 12 July 1999 statements from Mrs B. D., a midwife, were taken by gendarmes. Mrs B. D. stated that when the gendarmes had arrived with the applicant they had told the personnel that the applicant might try to escape or commit suicide. She noted that the applicant had refused a gynaecological examination until persuaded. The midwife maintained that the applicant had not been ill-treated or harassed by the gendarmes or the personnel and that the gendarmes had not been present during the examination.

On 13 July 1999 statements from Mrs N. A., a nurse, were taken by the gendarmes. She stated that the applicant had initially resisted the medical examination but that the doctor had talked with her and persuaded her. She claimed that no gendarmes had been present in the room during the examination and that the allegations of harassment were ill-founded.

On 28 July 1999 statements from Mrs S. K., a midwife, were taken by the Deputy Health Director. Mrs S. K. affirmed that the applicant had not been forced but persuaded to have a medical examination. She further maintained that no gendarmes had been in the room during her examination.

On 12 August 1999 statements from Mrs F. F. C., a midwife, were taken by the Deputy Health Director. She stated that she had no information regarding the matter at issue because she had not been there on the night of the applicant's medical examination.

On 13 August 1999 statements from Mr Y. Y. and Mr A. K. were taken by gendarmes in charge of the investigation. Mr Y. Y. stated that he did not know anything about the applicant's medical examination, since his sole responsibility had been to receive the applicant into detention after she had been medically examined. Mr A. K. affirmed that the applicant had not been forced to undergo a medical exam as alleged.

On 10 September 1999 Major C. V., in his capacity as investigator (muhakkik), drafted a recommendation report (fezleke) in which he suggested that a decision of non-prosecution should be given in respect of the three gendarmes, as there was no indication that they had abused their authority. In this report it was stated that the applicant had refused to give a statement.

In a letter dated 8 October 1999 then Provincial Gendarmerie Commander informed the investigator, inter alia, that the gendarmes, Mr A.K., Mr A.S. and Mr Y.Y., had requested the doctor to perform a gynaecological examination on the applicant without written permission from the prosecutor after she had been interrogated on the ground that she might later raise allegations of rape.

On 8 October 1999 statements from Mr A. K., one of the accused gendarmes, and Mrs H. A. and Mrs B. D., nurses on duty at the hospital on the day of the events, were taken by gendarmes in charge of the investigation.

Mr A.K. stated that the applicant had consented to the medical examination and that none of the gendarmes had been present in the examination room.

Mrs H. A. stated that the applicant had initially resisted having a gynaecological examination but had later consented after being persuaded by the doctor. She affirmed that the gendarmes had not been in the examination room and that she had not seen anyone harassing the applicant.

Mrs B. D. reiterated her earlier statements given to the gendarmes.

On 13 October 1999 Major C. V. drafted another recommendation report, in which he reiterated his previous findings in identical terms, including that the applicant had refused to give a statement. He further considered that, since the Ministry of Justice's circular requiring written permission of a judge or a public prosecutor was issued on 21 October 1998, after the alleged incident, the gendarmes could not be considered to have abused their duty by sending the applicant for a gynaecological examination without such permission.

On 23 December 1999 Mr A. Y., the doctor who had examined the applicant, gave a statement to the Deputy Health Director. He maintained, in particular, that the applicant knew Turkish and was extremely aggressive. He stated that he had told her that such an examination was necessary according to the official documents (‘gelen evraklara göre’) and, at the same time, in order to safeguard her rights. He affirmed that only he and female nurses had been present during the medical examination, and that she had been examined ten to fifteen minutes after she had been persuaded.

On an unspecified date Major C. V., the investigator, submitted an additional recommendation report which was almost identical to the previous reports. Once again it noted that there was no statement from the applicant as she had refused to give one.

On 18 January 2000 the Hakkari Administrative Council decided not to authorise the prosecution of the three gendarmes for lack of evidence that they had abused their authority by forcing the applicant to undergo a gynaecological examination. It noted, in particular, that the Ministry of Justice's circular no. 27/123 concerning, inter alia, vaginal and anal examinations had been published after the alleged events. This decision was served on the applicant's lawyer Mrs Keskin on 20 February 2000 and on Mr Kılavuz on 3 April 2000. The applicant's lawyers did not lodge an objection to this decision as such decisions were automatically referred by law to the Regional Administrative Court.

On 18 April 2002 the Supreme Administrative Court suspended examination of the case file for five years, pursuant to Article 1 § 4 of the Conditional Release, Deferral of Procedure and Punishments Act (no. 4616).

Following the adoption of the new Criminal Code, the execution of the applicant's sentence was suspended by the Van Assize Court on 30 November 2004.

On 2 December 2004 the applicant was released from prison and deported to Germany.

On 29 July 2005 by an additional judgment the Van Assize Court reduced the applicant's original sentence to seven years and six months' imprisonment.

The relevant domestic law and practice in force at the material time are outlined in the following judgments: Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-100, 3 June 2004), Y.F. v. Turkey, (no. 24209/94, §§ 23–26, ECHR 2003-IX), Özel v. Turkey (no. 42739/98, §§ 20–21, 7 November 2002), and Gençel v. Turkey (no. 53431/99, §§ 11 -12, 23 October 2003).

Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, abolished the State Security Courts.

According to Article 70 of the Medical Practice Act (no. 1219) a medical intervention may only be carried out after the person concerned has given their consent.

Sections 24–31 of Regulation no. 23420 on patients' rights concerns consent to medical interventions. It stipulates, inter alia, that a medical intervention may only be carried out after the person concerned has given their consent and that the person concerned has the right to be informed of the nature and consequences of a medical intervention before giving his or her consent.

The General Rule stated in Article 5 of the Council of Europe Convention on Human Rights and Biomedicine states as follows:

The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government disputed the applicant's allegation.

The applicant maintained her claims.

The applicant claimed 40,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. In respect of pecuniary damage the applicant submitted that she was unemployed due to her mental and physical state.

The Government contested the amount.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to all the elements before it, the Court finds that the applicant suffered non-pecuniary damage in the form of mental distress as a result of the gynaecological examination to which she had been subjected against her will. Ruling on an equitable basis, it therefore awards the applicant EUR 4,000 under this head.

The applicant also claimed EUR 9,301 for representation fees, costs and expenses incurred before the State Security Court and the Court. The applicant relied on the Diyarbakır Bar Association's recommended minimum fees list and a schedule of costs prepared by her representatives. She also submitted a letter from Mr Bayhan, a translator, who claimed to have received 1,350 new Turkish liras (approximately EUR 726) for translation. The applicant, however, did not submit any receipts or any other relevant documents.

The Government contested the amount.

Since the applicant submitted no substantiation by way of vouchers or receipts of her costs claim, as required by Rule 60 of the Rules of Court, the Court makes no award under this head.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.