THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74300/01 by H ü lya ÖZALP against Turkey

The European Court of Human Rights (Third Section), sitting on 11 October 2007 as a Chamber composed of:

Mr B.M. Zupančič , President ,

Mr C. Bîrsan ,

Mrs E. Fura-Sandström [1] ,

Mrs A. Gyulumyan ,

Mr E. Myjer ,

Mr David Thór Björgvinsson ,

Mrs I. Ziemele, judges ,

and Mr S. Naismith , Deputy Section Registrar ,

Having regard to the above application lodged on 7 July 2001,

Having regard to the partial decision of 2 December 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms H ülya Özalp, is a Turkish national who was born in 1975 and lives in Siirt . She was rep resented before the Court by Mr M . Beştaş and Mrs M. Beştaş, lawyer s practising in Diyarbakır . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was the president of the Siirt women ’ s branch of HADEP (People ’ s Democracy Party) at the time of the events.

On 22 January 2001 the applicant was arrested and taken into police custody on suspicion of participation in the activities of an illegal armed organisation by spreading propaganda on its behalf.

On the same day she was examined by a doctor who noted no signs of ill ‑ treatment. She was also taken for a gynaecological examination.

On 25 January 2001 the applicant was interrogated.

On 26 January 2001 the applicant was examined by a doctor who noted no signs of ill-treatment. She was taken for another gynaecological examination.

On the same day the applicant was brought before the Siirt public prosecutor where she reiterated her statements given to the police. She said she had nothing to say about the arrest protocol, search protocol or reports concerning her custody.

Later on the same day the applicant appeared before the Siirt Magistrates ’ Court where she denied the accusations against her. She accepted her statements given to the prosecutor but challenged the veracity of her statements given to the police. The applicant claimed that they made her sign these statements without reading and while she was blindfolded. She was read out all the documents contained in the case-file including the medical reports. The applicant stated that she refuted all evidence against her. The court ordered her remand in custody.

On 8 February 2001 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and four others accused of membership of an illegal armed organ isa tion. The charges were brought under Article 168 § 2 of the Criminal Court and Article 5 of Law no. 3713.

On 16 February 2001 the criminal proceedings against the applicant and four other accused commenced before the Diyarbakır State Security Court.

At the hearing held on 2 0 March 2001 the applicant denied all the accusations against her. When the applicant was asked about the medical reports established while she was in police custody, she claimed that, while she had been tortured and coerced at the police station, at the time of the examination she had no visible bruises. She alleged that the police had used various medicaments to erase these signs.

On 20 May 2001 the applicant was released pending trial.

The criminal proceedings instigated against the applicant ended with her acquittal.

Upon the communication of the application to the Government, the Siirt public prosecutor appears to have investigated the circumstances in which the applicant was medically examined. On 12 March 2004 he submitted information to the International Relations and Law General Directorate of the Ministry of Justice in this respect. He noted, in particular, that Mrs A.T. and Mrs S.B., the applicant ’ s co-accused, were taken for a medical examination the very same day and that, since they had refused to be examined, no gynaecological examination had been performed on them. The Government have provided copies of these medical reports where it is mentioned that, since the subjects refused, no gynaecological examination was performed on them. He further submitted the testimonies of the doctors who had examined the applicant on the first and the last day of her custody. These statements were taken in February and March 2004. The doctors were unable to remember the applicant but they all maintained that they only perform a medical examination after having obtained the consent of the subject on the matter. In this respect they also relied on the medical reports issued in respect of Mrs A.T. and Mrs S.B.

B. Rele vant domestic law and practice

A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96 ‑ 100, 3 June 2004 and Y.F. v. Turkey , ( no. 24209/94, § § 23 ‑ 26, ECHR 2003 ‑ IX ).

C. Relevant International Material

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

“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.

The person concerned may freely withdraw consent at any time.”

COMPLAINTS

The applicant complained under Articles 3, 8 and 13 of the Convention that she had been subjected to a gynaecological examination without her consent and that she did not have an effective domestic remedy in this respect.

THE LAW

The applicant maintained that she had been subjected to a gynaecological examination without her consent and that she did not have an effective domestic remedy in this respect. She invoked Articles 3, 8 and 13 of the Convention which provide:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private...life....

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

The Government asked the Court to reject the application for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this respect, they maintained that the applicant had failed to lodge a criminal complaint with the prosecutor or other judicial authorities. The Government further argued that the applicant could have sought reparation for the harm which she had allegedly suffered by instituting an action in the civil or administrative courts.

As to the merits, the Government argued, in particular, that the applicant ’ s complaint fell within the scope of Article 8 rather than Article 3 of the Convention and that the facts of the case did not disclose a violation of her right to private life. Finally, they maintained, referring to the criminal remedies, that there existed an effective domestic remedy available to the applicant but that she had failed to use it.

The applicant maintained that she had complained about her ill ‑ treatment before the court on 20 March 2001 and that the prosecutor, pursuant to domestic law, should have instigated a criminal investigation into her complaints. She further noted that, in accordance with the Court ’ s case-law, she was not obliged to exhaust all the domestic remedies afforded for her complaint but only the one which was the most appropriate. In addition, she considered the other remedies mentioned by the Government ineffective.

As to the merits, the applicant maintained, in particular, that she underwent a gynaecological examination without her consent and that this unlawful examination which sought to cause her mental suffering and weaken her resistance, constituted degrading and inhuman treatment in violation of Article 3 of the Convention. She submitted that this medical examination constituted an unjustified and an unlawful interference with her private life and that it was not necessary in a democratic society. Finally, the applicant reaffirmed that there was no effective domestic remedy for her complaint.

B. The Court ’ s assessment

The Court reiterates that, under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This rule requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. In addition, this condition is not met by the mere fact that an applicant has submitted her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see Yüksektepe v. Turkey , no. 62227/00, § 43, 24 October 2006 ).

Even assuming that the applicant was dispensed from attempting to pursue any administrative or civil remedies against the police officers or the doctors who had performed a gynaecological examination on her, the Court observes that, at no time in the course of the criminal proceedings against her, did the applicant allege, rely on or raise any arguments that the gynaecological examination performed on her, without her consent, was degrading and inhuman treatment or that it violated her right to respect for her private life (see, mutat is mutandis , Devrim Turan v . Turkey , no. 879/02, § 14 , 2 March 2006 ) . In this respect, the Court finds that the applicant ’ s submissions, at the hearing held on 2 0 March 2001, cannot be construed as having given due notice of her present complaint to the domestic authorities. Accordingly, the Court considers that the applicant has failed to raise her complaints under this head before the domestic instances. In these circumstances, the Court accepts the Government ’ s objection that the applicant has failed to exhaust domestic remedies in respect of her complaints under this head. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention in the present case.

For these reasons, the Court by a majority

Declares the remainder of the application inadmissible .

Stanley Naismith Boštjan M. Zupančič Deputy Registrar President

[1] Mrs E. Fura-Sandström was designated to sit as national judge in respect of Turkey in accordance with Rule 29 of the Rules of Court .