Resolution CM/ResDH(2008) 62 [1]

Execution of the judgment of the European Court of Human Rights

Y.F against Turkey

(Application No 24209/94, judgment of 22/07/2003, final on 22/10/2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern a violation of the right to respect for private life in that the applicant ' s wife was forced to undergo a gynaecological examination after having been taken into police custody (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Turkey ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and;

DECIDES to close the examination of this case.

.

Appendix to Resolution CM/ResDH(2008)62

Information about the measures taken to comply with the judgment in the case of Y.F against Turkey

Introductory case summary

The case concerns a violation of the right to respect for private life in that the applicant ' s wife was forced to undergo a gynaecological examination after having been taken into police custody with the applicant in 1993 on suspicion of aiding and abetting the PKK.

The European Court considered that any such interference with a person ' s physical integrity must be prescribed by law and requires the consent of that person. However, the justification given for this interference did not fall within any of the provisions of Turkish law authorising such interference ( e.g . Article 17§2 of the Constitution and Article 66 of the former Code of Criminal Procedure). Therefore, the interference at issue was not “in accordance with law” (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

4 000 EUR

2 375 EUR

6 375 EUR

Paid on 04/03/2004 with interest

b) Individual measures

No individual measures required in this case.

II. General measures

Article 75 of the new Code of Criminal Procedure was amended on 25/05/2005. It now provides that the physical examination of or the taking of body samples from, an accused or a suspect shall require the decision of a judge or a court following a request lodged by a public prosecutor or a victim or a decision taken by a judge or a court. The request should be presented within twenty-four hours to a judge or to a court which should approve it within twenty-four hours. An objection may be lodged against a decision ordering physical examination. Physical examinations and the taking of body samples shall be carried out by doctors or competent medical personnel. The new Code came into force on 01/06/2005.

Article 287 of the new Criminal Code provides that any person who orders a gynaecological examination to be conducted or who performs such an examination on an individual without due authorisation will be liable to imprisonment for a term of 3 months to one year.

The Regulations on Arrests, Detentions and Interrogations were amended in January 2004. They now provide that medical examination of detainees shall only be carried out by a forensic doctor and that security forces shall only be present on the premises if the forensic doctor so requests for security reasons.

The Court ' s judgment was published in the Bulletin of the Ministry of Justice on 17/02/2004 (No. 240).

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies