PARTLY DISSENTING OPINION OF JUDGE S SAJ Ó , TSOTSORIA AND KARAKA Ş

With all due respect, we have to dissent as to the finding of a substantive violation in the present case.

In this case there are conflicting medical opinions regarding the applicants ’ state of health. Examinations in the immediate aftermath of the alleged ill-treatment produced no medical evidence of physical abuse. Four months after the contested facts, the Turkish Medical Association, a respectable professional medical association dealing with professional education, fees and professional ethics, with representation on the Turkish Ministry of Health Central Ethics Committee, issued an opinion on those medical examinations without re-examining the applicants. The opinion states that the complaints made by the applicants we re consistent with those that genuine victims of violence and rape would have made. Secondly, in accordance with their deontological principles, they criticise the examination procedure applied by the doctors as not being in conformity with the standards of the Ministry of Health. These views concern examinations conducted upon the applicants ’ discharge from police custody (paragraph 23 of the judgment).

Contrary to the majority ’ s finding, we cannot disregard the results of repeated medical examinations which were conducted shortly after the alleged abuse, as the purported improprieties do not concern the applicants ’ physical condition. Moreover, the report of the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University is based on examinations that took place more than a year after the contested events. More importantly, the finding of the Centre refers to post-traumatic stress disorder. The existence of such disorder does not prove anything about its origins. It may well be that the applicants ’ psychological problems had to do with the stress of the detention, or the long-term sentences they had been given, or were even related to remorse for the acts for which they had been convicted. The diagnosis itself remains contested in the light of the decision of the highest expert body in the matter, namely the Plenary Assembly of the Forensic Medicine Institute. Given that the medical opinions are conflicting, and that the balance is overwhelmingly tipped against any indirect evidence of ill-treatment, in the absence of prima faci e evidence and in view of the negative finding of a domestic court we cannot see here that the State ’ s responsibility is established beyond reasonable doubt, even though the State has a certain burden of proof in the event of sufficiently s trong, clear and concordant in ferences. There is no prima facie s ign of sufficiently strong in ferences here, be it clear or even unclear. The Court itself is “unable to establish the complete picture” and believes that “it should have been possible to detect the ill-treatment which had such long-term psychological effects” (paragraph 97). Clearly, if it only “should have been possible” it cannot be said to have happened, especially as the existence of the post-trauma syndrome remains contested. And once again, even if the applicants were in distress, this is not conclusive as to the causes of the distress.

We voted for the finding of a violation of the procedural limb of Article 3 of the Convention because seven years of pr oceedings, after which they became time-barred, cannot satisfy the requirement of an effective investigation.

Lastly, we would like to mention that we found the application of the virginity test troubling, bordering on degrading treatment. However, the medical examination of persons in police custody constitutes one of the most essential safeguards against ill ‑ treatment ( Türkan v. Turkey , no 33086/04, § 42 ). In this connection, we should like to recall that , in a situation where a female detainee complains of a sexual assault or requests a gynaecological examination, the obligation of the authorities to carry out a thorough and effective investigation into the complaint would include the duty to carry out the examination promptly (see, for example, Aydın v. Turkey , 25 September 1997, Reports 1997-VI, § 107). In its recent judgment in the case of L.Z. v. Romania ( no. 22383/03, §§ 32-37, 3 February 2009), the Court found a violation of Article 3 of the Convention on the grounds, inter alia , that the domestic authorities had not ensured the detailed medical examination of an applicant who had complained of anal rape while in prison.

It is true that a female detainee may not be compelled or subjected to pressure to undergo such an examination against her wishes (see Y.F. v. Turkey , no. 24209/94, §§ 41-44, ECHR 2003 ‑ IX, and Juhnke v. Turkey , no. 52515/99, § 81, 13 May 2008). However, in the instant case, it seems that the applicants had a genuine opportunity to refuse to undergo the examination as, the second time they were asked, they were able to refuse it without difficulty. There is no evidence of their objecting to the first examination. For reasons of legal certainty, we find the requirement of written consent indispensable, and we would welcome an exception to the general rule regarding medical examinations. At least, very young people should not have to undergo such tests as the humiliation is virtually inevitable while the protection against ill-treatment resulting from such tests is limited, given the possibility of alternative forms of sexual abuse.

[1] . The 4 th Section of Expertise gives medical opinions in cases where psychiatric opinion is needed. The 6 th Section of Expertise is competent to give medical opinions on cases involving, inter alia , sexual violence.

[2] . The 2 nd Section of Expertise is competent to give medical opinions in cases involving, inter alia , physical violence.