PARTLY DISSENTING OPINION OF JUDGE HEDIGAN

JOINED BY JUDGE DAVID TH Ó R BJÖRGVINSSON

1. I agree with the judgment of the majority of the Court in relation to the finding of no violation of Article 3 of the Convention as regards the applicant ’ s allegation of ill-treatment whilst in custody. I agree further that there was a violation of Article 13 of the Convention in that the authorities failed to fulfil their obligation to provide the applicant with an effective remedy concerning her allegations of ill-treatment.

2. I regret that I cannot however agree with the judgment insofar as it declares inadmissible as manifestly ill-founded that part of the applicant ’ s case in which she complained under Article 3 of twice being taken to the Tokat Maternity Hospital for a gynaecological examination. I note that the Court on the 27 th January 2005 decided under Article 29 § 3 of the Convention to examine the merits of the application at the same time as its admissibility.

3 . The applicant complained that she had been taken to the hospital twice for a gynaecological examination, which in her view constituted degrading treatment under Article 3 of the Convention, which reads:

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

Admissibility

4 . As is noted in the judgment, the Government argued in the first place that the applicant did not have the victim status to bring this complaint before the Court, as the doctors had not performed any gynaecological examination.

The applicant did not comment on this point.

The word “victim”, in the context of Article 34, denotes the person directly affected by the act or omission which is in issue. In the present case, the applicant ’ s complaint concerns the distress she allegedly suffered as a result of the fact that she had been taken to the hospital for gynaecological and rectal examinations on the first and last days of her police custody. In my opinion, whether or not the authorities conducted these medical examinations has no effect on the applicant ’ s victim status. The essence of her complaint is that she was twice taken by the authorities in whose custody she was to the Tokat Maternity Hospital for a gynaecological and

rectal examination with a request to establish her virginity status. There is no dispute on the facts in this regard. I therefore consider that the applicant is a victim of the impugned acts and I would consequently dismiss this part of the Government ’ s objection.

In view of the above, I find that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. As is not inadmissible on any other grounds, it must therefore be declared admissible.

Merits

5 . The applicant maintained that she had been subjected to inhuman and degrading treatment in breach of Article 3. The Government stated that the purpose of the authorities in taking the applicant to the hospital for a gynaecological examination was to avoid any false accusations of sexual harassment by police officers. In this connection, they maintained that on the day of her arrest the applicant had bitten the hand of one of the officers and then went on a hunger strike to protest against her arrest. They also maintained that she had threatened the officers stating that she would cause big trouble for them.

6 . As the Court has repeatedly held, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV).

7 . According to the Court ’ s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece , no. 28524/95, §§ 67, 68 and 74 , ECHR 2001 ‑ III ; and ValaÅ¡inas v. Lithuania , no. 44558/98, § 101, ECHR 2001 ‑ VIII ).

8 . The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with this provision the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well being are adequately secured (see KudÅ‚a v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI ).

9 . Turning to the facts of the present case: on 23 May 1999 the applicant was taken into police custody on suspicion of membership of an illegal organisation. The same day, after being examined at the Tokat State Hospital for signs of ill-treatment, the applicant was sent to the Tokat Maternity Hospital at about 8.10 p.m. for a gynaecological examination with a request to establish her virginity status. As the applicant did not give her consent, the doctor refrained from performing the examination. Thereafter, at 9 p.m. , she was taken back to the Tokat State Hospital , this time for a rectal examination. The applicant refused to be examined, and no rectal examination was performed. It is clear from the documents in the case file that the police officers repeated the same procedure on the last day of the applicant ’ s custody on 30 May 1999 .

10 . I note the Government ’ s contention that the aim of the police, when taking the applicant to the hospital for gynaecological and rectal examinations, was to prevent any false accusations of sexual molestation. However, as stated above, the authorities are under an obligation to respect the human dignity of the persons who are under police custody, and they should refrain from taking any measure which could subject them to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see paragraph 26 above).

11 . I note that these reasons submitted by the Government to justify its action in this regard are more narrow than those advanced by them in Y.F. v. Turkey (no. 24209/94, ECHR 2003-IX) which also involved the taking by the police authorities of a female detainee to a hospital for a gynaecological examination. In paragraph 38 of that judgment the Government argued, as in this case, that the purpose of the gynaecological examination of female detainees was to avoid false accusations of sexual violence being directed against the security forces. However they further drew attention to what they referred to as the recommendations set out in the report of the European Committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) following its visit to Turkey between 27 th February and 3 rd March 1999 (CPT/INF (2000) 17). They claimed that in its report thereon the CPT emphasized that forensic medical examination of detainees by a doctor was a significant safeguard against sexual violence. They sought to connect this to the practice of sending female detainees for gynaecological examination in order to protect the police against false allegations of sexual assault. I can find in that report no reference to any recommendations such as that contended for by the Government in Y.F. v. Turkey . The only similar reference I could find was at paragraph 19. The report deals there with the medical examination of persons in custody. It welcomes the provision that detainees should be medically examined at the beginning and end of police custody. This reference in the CPT report appears under the heading of “Action to combat torture and ill-treatment”. Nowhere in this report have I found any recommendation made concerning the gynaecological examination of female detainees. In this case however, the Government have relied only upon the narrow ground that such examinations were for the purpose of avoiding false accusations of sexual harassment against the police.

12 . In paragraph 20 of the judgment herein, the majority relies upon the judgment in Y.F. v. Turkey at paragraph 43 as authority for the proposition that such examination is recognized in the case-law of the Court as a significant safeguard against false accusations of sexual molestation or ill-treatment. It further relies upon the fact that the applicant herein, following her refusal of consent, was not in fact examined. In reliance on these two things, it finds that the practice of taking female detainees for gynaecological examination does not amount to degrading treatment contrary to Article 3. I disagree with this conclusion.

13 . In Y.F. v. Turkey , the Court actually found a violation of Article 3 but upon the ground that the examination was not done in accordance with law. The reference in paragraph 43 to the Court ’ s acceptance of the Government ’ s submission that the medical examination of detainees by a forensic doctor can prove to be a significant safeguard against false accusations of sexual molestation or ill-treatment must therefore be regarded as obiter dictum . Even were it not to be so regarded, the acceptance of this principle is very far removed from acceptance that female detainees may as a matter of course be sent for such examination as occurred here or in Y.F. v. Turkey . It is undoubtedly the case that such examination may have the effect of helping to prevent or answer false allegations or even sexual assault or molestation. It is nonetheless important to reflect upon the vulnerability of any female detainee in such a situation. In custody, brought to a hospital, it is easy to imagine how even the strongest person ’ s will might be overborne and consent formally given to that which is entirely repugnant to her. This is in fact what happened in Y.F. v. Turkey (see paragraph 34) where the Court held that a person in such a vulnerable situation could not have been expected to resist submitting to such an examination. That the authorities should have such power over a vulnerable detainee cannot be consistent with acceptable standards on the treatment of prisoners nor with the European Convention on Human Rights. Such examination may also result in the revelation of a woman ’ s sexual history or, at the very least, information about her sexual status which is a matter of the most intimate nature. This indeed was the stated intention of the authorities in this case. Such information in the hands of detaining authorities seems entirely inappropriate. In this regard, I note that the CPT report cited above at paragraph 19 expresses serious misgivings that under the legal provisions they studied, a copy of the medical report following medical examination would be kept at the detention centre.

14 . For these reasons I take the view that nothing in either the case-law of this Court nor anything in the CPT reports supports the proposition that female detainees may be, as a matter of course, sent by the detaining authorities for gynaecological examination for the purposes contended for by the Government.

15 . It may well be that a useful purpose could be served by such examination but only where there are procedural safeguards in place to ensure that any consent given is given in circumstances that are demonstrably free of any coercion, intimidation or fear and where the results of such examination remain confidential to the detainee and the medical doctor involved. No such safeguards exist here. Indeed the manner in which the applicant was brought to the hospital and confronted with such an examination was for all practical purposes the same as in Y.F. v. Turkey . The fact that the applicant herein did in fact have the strength of character to refuse an examination does not in my view lend this procedure any legitimacy whatever.

16 . For these reasons, I am of the view that there has been a violation of Article 3 in that the applicant with regard to being taken for such examination was subjected to treatment that was degrading because it was such as to arouse feelings of fear, anguish and inferiority capable of humiliating and debasing her ( Labita v. Italy ).

17 . Had a complaint been made under Article 8 of the Convention , I would have considered the actions of the authorities disproportionate to the aim sought and would have found a violation of that provision.