Published on 19 May 2025
SECOND SECTION
Application no. 29714/23
Esin KAVRUK
against Türkiye
lodged on 14 July 2023
communicated on 2 May 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged ill-treatment of the applicant on account of the State authorities’ forcible medical intervention to obtain cellular material from her and the use of force imposed on her prior to and during the procedure.
At the time of the events, the applicant was in pre-trial detention in Bakırköy Prison, on account of charges of disseminating propaganda in favour of a terror organisation. By a decision of 6 November 2019, the Istanbul Magistrates’ Court decided that samples of the applicant’s hair, saliva or nail should be taken for the purposes of the establishment of the criminal offence. She was transferred to a hospital; however, the procedure was not carried out as she refused to give a sample. Subsequently, the Istanbul Public Prosecutor’s Office informed the prison administration that her samples needed to be taken on account of the court order to that effect and that the administration could get in touch with the Anti-Terror Branch of the Istanbul Directorate of Security if need be.
On 28 November 2019 the prison authorities – according to the applicant, together with a number of police officers – tried to forcibly take the applicant to the hospital. As the applicant and her inmates showed resistance, the authorities intervened. According to the applicant, she was beaten, dragged on the ground by her hair, handcuffed, and dragged on the ground once again in the hospital’s garden, this time by her arms. She claims that during the medical procedure, she was pushed to the ground by the officers who then forcibly opened her mouth and choked her before the taking of the buccal swab.
The medical reports issued on the same day noted a 0.3 cm lesion under her chin, a 0.4 x 0.2 cm swelling in the middle of her palate, and a 1 cm swelling on her scalp.
Following a criminal complaint from the applicant and her inmates against the officers involved, the Bakırköy Public Prosecutor’s Office issued a decision of non-prosecution. It found that on the day of the events, the prisoners, including the applicant, showed passive resistance despite the officers’ warnings, obliging the latter to use proportionate force in order to implement the orders, as a result of which certain individuals among both the prisoners and the officers sustained minor injuries.
The Constitutional Court rejected the applicant’s individual application regarding her alleged ill-treatment as being manifestly ill-founded.
Relying on Articles 3, 6 and 13 of the Convention, the applicant complains of her alleged ill-treatment on account of both the officers’ use of force and the forcible medical intervention. She also argues that the investigation was carried out hastily, without due regard to the medical reports supporting her claims.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, both by the officers’ use of force and the forcible medical intervention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90, ECHR 2015)?
In that connection, what were the grounds necessitating the retrieval of bodily samples in the context of the criminal proceedings against the applicant (see Jalloh v. Germany [GC], no. 54810/00, §§ 70-71, ECHR 2006‑IX)? Did the State authorities consider any alternative methods for recovering the samples from the applicant (ibid.)?
2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Bouyid, cited above, §§ 114-23)?
The Government are invited to submit the decisions of the Istanbul Magistrates’ Court dated 12 October 2019 (file no. 2019/797) pertaining to the applicant’s detention and 6 November 2019 (file no. 2019/4953 D. İş) ordering the taking of samples from her, as well as any documents, including any camera footage analysis, pertaining to the intervention in the applicant’s cell in Bakırköy Prison and her transfer to the Haseki Research Hospital on 28 November 2019.