SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 74300/01
by Hülya ÖZALP
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 December 2003 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrR. Türmen,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application lodged on 7 July 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Hülya Özalp, is a Turkish national, who was born in 1975 and resides in Siirt. She is represented before the Court by Mesut and Meral Beştaş, lawyers practising in Diyarbakır.
On 22 January 2001 the applicant was taken into police custody. The arrest report indicated that she was arrested on account of her involvement in conducting propaganda on behalf of an illegal organisation, namely the PKK. The applicant signed the arrest report.
On the same day she was taken to a doctor to be checked for signs of ill-treatment. She was then taken to a gynaecologist and underwent a gynaecological examination. The applicant alleges that she did not give her consent to the gynaecological examination.
The medical report indicated that there were no findings of ill-treatment. The report also mentioned her virginity status.
On 25 January 2001 she made a statement to the Anti-Terror Branch of the Security Directorate. The deposition indicated that she had been told of her rights and the charges against her. During her questioning she was asked about specific events which had taken place and about her connection with certain people. The applicant signed her deposition.
On 26 January 2001 she was taken to a doctor to be checked for signs of ill-treatment. The medical report indicated that there were no findings of ill-treatment.
On 26 January 2001 the applicant was brought before the public prosecutor. She acknowledged the statement which she had made to the police.
On 26 January 2001 the applicant was brought before the Siirt Magistrates’ Criminal Court. She refuted the statement taken by the police, but acknowledged the statement that she made to the public prosecutor. The court ordered her to be detained on remand.
On 8 February 2002 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with the court and accused the applicant of being a member of an illegal terrorist organisation and requested that she be charged and convicted under Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act.
On 20 March 2001 the applicant was released pending trial.
COMPLAINTS
The applicant complains under Article 3 of the Convention that she had to undergo a gynaecological examination without her consent.
The applicant complains under Article 5 § 1 of the Convention that she was taken into custody because of her involvement with a political party.
The applicant complains under Article 5 § 2 of the Convention that she was not told of her rights and the reasons for her arrest. She further complains that she was not allowed to benefit from the assistance of a lawyer during her interrogation by police officers.
The applicant complains under Article 8 of the Convention on account of being subjected to a gynaecological examination without her consent.
The applicant complains under Article 13 of the Convention on account of the lack of an effective remedy in respect of her complaints under Articles 3 and 8 of the Convention.
THE LAW
1. The applicant complains under Articles 3 and 8 of the Convention that she was subjected to a gynaecological examination without her consent.
The applicant further complains under Article 13 of the Convention of the lack of an effective remedy in respect of her complaints.
The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of them to the respondent Government.
2. The applicant complains under Article 5 §§ 1 and 2 of the Convention that she was taken into custody because of her political activities and that she was not told of her rights and the reasons for her arrest. She further submits that she had signed her statement in police custody without having had the opportunity to read it. Finally, she complains that she was not allowed to benefit from the assistance of a lawyer during her interrogation.
The Court notes that the applicant was taken into custody in the course of an investigation carried out against members of the PKK and on the basis of incriminating materials and witness evidence concerning the applicant’s participation in certain events. These elements on their own are sufficient to support the conclusion that there was objectively verifiable “reasonable suspicion” for the applicant’s apprehension (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
Accordingly, the facts disclose no appearance of a violation of Article 5 § 1 (c) of the Convention. It follows that this part of the application is manifestly ill founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.
The Court further notes that Article 5 § 2 of the Convention contains the elementary safeguard that any person detained should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed "promptly", it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, (cited above), p. 19, § 40).
In the instant case the applicant was informed of the reasons for her arrest when being taken into custody. She signed the arrest report which clearly indicated that she had been taken into custody in the course of investigations carried out against the members of the PKK, and in particular her suspected involvement in offences of propaganda on behalf of the latter organisation.
The Court therefore concludes that the applicant was sufficiently informed and in a prompt manner of the reasons for her arrest. It follows that this part of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 thereof.
As to the applicant’s complaint that she was not allowed to benefit from the assistance of a lawyer during her interrogation, the Court considers that this complaint should be examined from the angle of Article 6 of the Convention. It notes that in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (see Imbrioscia v. Switzerland, judgment of 23 November 1993, Series A no. 275, pp. 13-14, § 38).
Given that the proceedings in the applicant’s case are currently pending this part of the application should be rejected as premature in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints relating to the gynaecological examination and the lack of an effective remedy in respect of these complaints;
Declares the remainder of the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy