Information Note on the Court’s case-law No. 138
February 2011
Yazgül Yılmaz v. Turkey - 36369/06
Judgment 1.2.2011 [Section II]
Article 3
Degrading treatment
Gynaecological examination of minor in custody without consent: violation
Facts – In 2002 the applicant, a sixteen-year-old girl, was taken into custody on suspicion of assisting an illegal organisation. A medical and gynaecological examination was requested by the police superintendant responsible for juveniles in order to establish whether there was evidence of assault committed during the police custody and if her hymen was broken. The examination request was not signed by the applicant. The next day she was remanded in custody and criminal proceedings were brought against her; then in October 2002 she was acquitted and released. Shortly afterwards, the applicant, suffering from psychological problems, underwent various medical examinations. Two medical reports concluded that she was suffering from post-traumatic stress and depression. In December 2004 she filed a complaint for abuse of authority against the doctors who had examined her in police custody. No disciplinary proceedings were opened and in March 2005 the public prosecutor’s office discontinued the proceedings. A challenge by the applicant was dismissed by the assize court.
Law – Article 3
(a) Substantive aspect – There was nothing to suggest that the authorities had tried to obtain the applicant’s consent or that of her legal representative for the gynaecological examination. In addition, she could not have been expected to oppose such an examination, having regard to her vulnerability in the hands of the authorities, who had total control over her while she was in police custody. At the time there had been a gap in the law as regards such examinations of female detainees, which were carried out without any safeguards against arbitrariness. Unlike other medical examinations, a gynaecological examination could be traumatising, especially for a minor, who had to be afforded additional guarantees and precautions (for example, by ensuring that consent was given at all stages by her and her representative, and by allowing her to be accompanied and to choose between a male or female doctor). A general practice of automatic gynaecological examinations for female detainees, for the purpose of avoiding false sexual assault accusations against police officers, did not take account of the interests of detained women and did not meet any medical need. The Court noted with interest that the new Code of Criminal Procedure regulated, for the first time, internal bodily examinations, including those of a gynaecological nature, although there was no specific provision for minors. In addition, one of the two reports, drawn up by a panel of doctors in October 2004, had indicated that the medical certificates were not compliant with the medical assessment criteria provided for in the circulars adopted by the Ministry of Health or in the Istanbul Protocol, since they failed to show whether the applicant had sustained any physical or psychological violence. The report had also concluded that to conduct a gynaecological examination without the person’s consent could be regarded as sexually traumatic and that the applicant’s allegations of assault in police custody were largely corroborated by the subsequent medical examinations. Put together, the above-mentioned evidence created a strong presumption as to the superficial nature of the medical and gynaecological examinations in question. Accordingly, the authorities, who had deprived the applicant of her liberty, had not taken any positive measure to protect her during her police custody and had thus caused her considerable distress. In deciding to subject the girl to a gynaecological examination, they could not have been unaware of its psychological consequences. Having regard to the fact that this examination must have caused her extreme anxiety, given her age and the fact that she was not accompanied, it attained the requisite threshold to be characterised as degrading treatment.
Conclusion: violation (unanimously).
(b) Procedural aspect – As regards the effectiveness of the investigation, the Court noted that, following the applicant’s complaint, it was the Deputy Director for Health who was entrusted with the case as inspector, whereas he reported to the same hierarchy as the doctors whose actions he was investigating. Following his conclusion that, two years after the events, disciplinary proceedings for misconduct were time-barred, the District Governor’s office had decided not to authorise the opening of a criminal investigation against the doctors concerned. That decision had been upheld by the administrative court and the public prosecutor had then decided to discontinue the proceedings. No criminal investigation had therefore been conducted. Moreover, the inspector’s report of July 2005, which had found the doctors liable, had not been notified to the applicant. The doctors had thus benefited from the statute of limitations without any judicial finding as to their possible liability for the acts complained of. The Court had already expressed serious doubts about the capacity of the administrative bodies concerned to conduct an independent investigation. In the present case, the shortcomings in the investigation, which had had the result of granting virtual impunity to the presumed perpetrators of the offending acts, had rendered ineffective the criminal action and also any civil action by which the applicant could have obtained compensation for the alleged violations.
Conclusion: violation (six votes to one).
Article 41: EUR 23,500 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy