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SECOND
SECTION
CASE OF FİLİZ UYAN v. TURKEY
(Application
no. 7496/03)
JUDGMENT
STRASBOURG
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:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
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:
PROCEDURE
- The
case originated in an application (no. 7496/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Filiz Uyan (“the
applicant”), on 3 February 2003.
- The
applicant was represented by Mrs I.G. Kireçkaya, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
- On
13 December 2005 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and at the time of the events was serving
a prison sentence in the Buca Prison in İzmir.
- She
had been convicted of being a member of a terrorist organisation and
sentenced to twenty-two years' imprisonment.
- On
12 November 2001, following the prison doctor's referral, the
applicant was taken to İzmir-Yesilyurt Atatürk Training and
Research Hospital, escorted by three male security officers (two
gendarmes and a male prison guard) and one female prison guard, in
order to undergo an ultrasound scan by a gynaecologist.
- In
the hospital the applicant was taken to a consultation room located
on the ground floor. The bottom of the consulting room windows was
only 50 cm above floor level and the windows were unprotected.
The applicant's handcuffs were not removed and the male security
officers refused to leave the consultation room for security reasons.
They stated that they would wait behind a folding screen. The
applicant refused to be examined in such conditions. Accordingly, the
gynaecologist issued a medical report stating that she had not been
able to perform the requested ultrasound scan as the patient had not
given her consent.
- On 14 November 2001 the applicant's representative
applied to the İzmir Public Prosecutor's Office, accusing the
gendarmes and the male prison guard of misconduct, arbitrary
treatment and insulting the applicant.
1. The proceedings against the gendarme officers
- On 15 November 2001 the İzmir Public Prosecutor's
Office separated the investigation file in respect of the accused
gendarme officers, noting that, pursuant to Law no. 4483 on the
Prosecution of Civil Servants and Public Officials, permission to
prosecute had to be sought from the District Governorship.
- On 28 December 2001 the Buca District Governor decided
not to authorise the prosecution of the gendarme officers, stating
that the applicant's allegations were unsubstantiated.
- The applicant did not file an appeal and the decision
became final on 30 January 2002.
2. The proceedings against the male prison guard
- On 26 and 27 November 2001 respectively, the İzmir
public prosecutor took statements from the male prison guard and the
applicant as the complainant.
- On 3 December 2001 the public prosecutor decided not
to prosecute the prison guard. Referring to the doctor's note dated
12 November 2001, in which it was stated that no examination had been
performed as the applicant had not given her consent, the prosecutor
decided that the applicant's allegations were unsubstantiated.
- On 29 July 2002 the Karşıyaka Assize Court
dismissed the applicant's appeal against that decision.
3. The proceedings against the doctor
- In the meantime, on 23 January 2002, the applicant's
lawyer filed a complaint with the İzmir Medical Association
(İzmir Tabip Odası) against the doctor who had not
asked the male security officers to leave the room or remove the
applicant's handcuffs.
- On 8 April 2002 the İzmir Medical Association
found it unnecessary to initiate criminal proceedings against the
doctor, holding that she had not treated the applicant
disrespectfully.
- The applicant objected and on 5 October 2002 the
Turkish Medical Association (Türk Tabipleri Birliği)
quashed that decision.
- On
23 January 2003 the İzmir Medical Association examined the file
once again and decided to issue the doctor with a warning for
professional misconduct, namely for not taking the initiative to
request the male security officers to leave the consultation room or
remove the applicant's handcuffs, as required by ethical rules.
II. RELEVANT LAW AND PRACTICE
- The
Protocol for Prisons signed by the Ministries of Justice, Health and
the Interior (6 January 2000) provides:
Article 66
“...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.”
Article 72
“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.”
- The
Regulation on the External Protection of Prisons and Transfer
Procedures provides insofar as relevant as follows:
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.”
- The
CPT Standards (the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment) concerning health
care services in prisons (see the CPT standards, document
no. CPT/Inf/E (2002) 1- Rev. 2006, pages 31 and 34) provide as
follows:
“... 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that during her visit to the hospital for an
ultrasound scan she had been subjected to inhuman and degrading
treatment. She further maintained that she had not had an effective
remedy for her complaint concerning that treatment, which, in her
view, had also been discriminatory. She relied on Articles 3 and 13
of the Convention. The Court considers that these complaints should
be examined from the standpoint of Article 3 alone, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested these arguments.
A. Admissibility
- The
Government argued in the first place that the application should be
rejected for non-exhaustion of domestic remedies. They maintained
that the applicant had failed to lodge an appeal against the Buca
District Governor's decision, dated 28 December 2001, not to
prosecute the gendarme officers. They also maintained that the
application must be dismissed for failure to comply with the
six-month rule. Furthermore, they contended that the applicant could
not be considered as a “victim” within the meaning of
Article 34 of the Convention as no medical examination had been
performed on her since she had not given her consent.
- The
Court observes that there were three separate sets of proceedings in
the present case. The first set of proceedings concerned the two
gendarme officers who had refused to leave the consultation room for
security reasons. The Court notes that the applicant failed to file
an appeal against the Buca District Governor's decision dated 28
December 2001, which became final on 30 January 2001. Accordingly,
this part of the application, concerning the prosecution of the
gendarme officers, should be rejected for non-exhaustion of domestic
remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
- As
regards the Government's second objection, concerning non-compliance
with the six-month time-limit, the Court observes that the
proceedings against the male prison guard ended on 29 January 2002
with the decision of the Karşıyaka Assize Court. The
parties have not informed the Court of the notification date of that
decision. Be that as it may, the applicant lodged her application
with the Court on 3 February 2003, within six months following the
decision of the İzmir Medical Council dated 23 January
2003. In the Court's opinion, it was not unreasonable for the
applicant to await the outcome of the proceedings against the doctor,
before lodging her application with the Court. Accordingly, the
Government's objection under this head cannot be upheld.
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.
- Finally,
the Government contended that the presence of gendarmes in the
doctor's consultation room was required by law for security reasons
because of the poor security arrangements in the hospital. They
further stated that the applicant had been convicted of being a
member of a terrorist organisation and strict security measures had
to be taken to prevent the risk of her absconding. Lastly, the
Government maintained that the application was unsubstantiated,
repeating that the applicant had not been forced to undergo a medical
examination. The complaint was therefore manifestly ill-founded.
- However,
the Court does not find this complaint to be manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court recalls that, 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). It further reiterates that
handcuffing does not normally give rise to an issue under Article 3
of the Convention where the measure has been imposed in connection
with a lawful detention, and does not entail a use of force or public
exposure exceeding what is reasonably considered necessary. In this
regard it is important to consider, for instance, whether there is a
danger that the person concerned might abscond or cause injury or
damage to himself / herself or others (see Mouisel v. France,
no. 67263/01, § 47, ECHR 2002 IX; Raninen v.
Finland, 16 December 1997, § 56, Reports of
Judgments and Decisions 1997 VIII; Tarariyeva v. Russia,
no. 4353/03, § 109, ECHR 2006 ..., and Henaf v.
France, no. 65436/01, § 48, ECHR 2003 XI).
- Article
3 of the Convention also imposes an obligation on the State to
protect the physical well-being of persons deprived of their liberty,
for example by providing them with the requisite medical assistance
(see Mouisel, cited above, § 40). There may be no
derogation from this obligation.
- In
the present case, the Court notes that the applicant was referred to
the hospital by the prison doctor to undergo an ultrasound scan.
Consequently, she was taken to the hospital, handcuffed and escorted
by one female and three male security officers. The Court recognises
the security risk presented by the fact that the applicant had been
heavily sentenced for being a member of a terrorist organisation and
that the doctor's consultation room was on the ground floor of the
hospital with no window bars. Nevertheless, the Court considers that
the insistence on the use of handcuffs during an examination by a
gynaecologist, and the presence of three male security officers in
the examination room during consultation, even behind a folding
screen, were disproportionate security measures, when there were
other practical alternatives. For example, the officers could have
secured the room by leaving the female prison guard there and placing
one of the gendarmes outside the window of the consultation room.
- However,
the doctor and the gendarme officers had acted in compliance with the
domestic legislation since, under the terms of the relevant protocol
(see paragraph 19 above), the officers had been obliged to stay in
the consultation room, keeping themselves at a sufficient distance
behind the folding screen to avoid hearing the conversation between
the doctor and the applicant. Furthermore, according to the domestic
legislation, handcuffs were not to be removed if they did not hinder
the medical examination and as long as their removal was not
requested by the doctor. These were strict requirements for all
prisoners convicted of terrorism-related crimes who had to undergo
such examinations. In the Court's view, these strict measures failed
to allow a flexible and more practical approach to be taken,
depending on the particular risk presented by such a prisoner and the
type of medical examination to be performed. In particular, the Court
finds that the Government have not demonstrated that the applicant
presented such an acute security risk that measures of this nature
were required for a gynaecological procedure.
- The
Court concludes that, even though no medical examination was
performed, the above security conditions must have caused the
applicant humiliation and distress, beyond that inevitably associated
with the treatment of a prisoner, which was capable of undermining
her personal dignity.
- There
has therefore been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Relying
on Article 14 of the Convention, the applicant contended that she had
been discriminated against as she was a female prisoner.
- However,
having regard to all the materials in its possession, the Court finds
nothing in the case file which might disclose any appearance of a
violation of this provision. It follows that this part of the
application is manifestly ill-founded and must be rejected, pursuant
to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT
- Declares by a majority the complaint under
Article 3 of the Convention admissible and the remainder of the
application inadmissible;
- Holds by 4 votes to 3 that there has been a
violation of Article 3 of the Convention.
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.
F.T.
F.E.-P.
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.
