JOINT DISSENTING OPINION OF JUDGES ZAGREBELSKY , TSOTSORIA AND KARAKAÅž

To our regret, we are unable to agree with the majority that there has been a violation of Article 3 of the Convention in this case.

As the majority rightly points out in paragraph 30, in order t o fall within the scope of Article 3 of the Convention the alleged treatment must attain a minimum level of severity ( see Ireland v. the United Kingdom , 18 January 1978, § 162, Series A no. 25). In our view, the treatment of which the applicant in the present case complain ed d id not attain the minimum level of severity within the meaning of Article 3 of the Convention , for the following reasons.

In the present case, the applicant , who had received a heavy prison sentence for being a member of a terrorist organisation, was taken to a civil ian hospital to undergo an ultrasound scan. However, as her handcuffs were not removed and as the male security officers refused to leave the consultation room and waited behind a folding screen, the applicant did not give her consent for the scan and, in consequence, the doctor did not perform the examination. There is no dispute on this issue between the parties.

In this connection, we note that under s ection 66 of t he Protocol for Prisons , signed by the Turkish Ministries of Justice, Health and the Interior and dated 6 January 2000 , where female detainees have been remanded in custody or convicted in connection with terrorism - related crimes and are required to seek medical assistance, gendarme officers are required to wait outside the consult ation room if the latter has adequate security. I f the room has no security , as in the present case, they are to stay in the consult ation room, remaining at a sufficient distance behind a folding screen to avoid hear ing the conversation between the doctor and patient. T he CPT Standards, referred in the judgment, also state that a ll medical examination s of prisoners should be conducted out of the hearing and , unless the doctor concerned requests otherwise , out of the sight of prison officers. There is no explicit requirement for male security officers to leave the consultation room when female convicts are involved or for the removal of handcuffs during an examination.

In our view, in paragraphs 32 and 33 of the judgment the majority has gone beyond its task by taking the place of the domestic authorities in suggesting which alternative measures could have been taken and in basing its decision on the fact that the Government failed to demonstrate that the applicant did not present an acute security risk. We consider that it is for the domestic authorities to assess the circumstances and to decide which security measures should have been imposed during the examination. It should be borne in mind that the applicant, a convicted terrorist, was being examined in a civilian hospital and, under section 3 of the Regulation s on

the External Protection of Prisons and Transfer Procedures , it was for the doctor to decide whether the use of handcuffs hindered the examination. In the present case, the applicant was taken to hospital for an ultrasound scan, and we do not see how the use of handcuffs could have hinder ed the examination.

Furthermore, although the doctor subsequently received a warning from the Izmir Medical Association for not having tak en the initiative to request the gendarme officers to leave the room , in our view the presence of the gendarme s was required by law in the circumstances of the present case , and the doctor had no authority to request otherwise. As regards the use of handcuffs, it was at the discretion of the doctor to request the removal of the handcuffs if she considered that they would hinder the examination of the applicant. However, given the security risk presented by the applicant and the hospital ’ s material conditions, we do not find that the doctor ’ s conduct was to have been unreasonable or disproportionate in the circumstances of the case. She merely complied with the domestic legislation in force at the time.

Last but not least, it should not be forgotten that the applicant was not forced to undergo the ultrasound scan. When she did not give her consent, she was returned to the prison. Furthermore, there is no allegation that her health deteriorated in consequence.

In this connection, we would refer to the judgment in Devrim Turan v. Turkey ( no. 879/02, 2 March 2006 ).T he applicant in that case , who was being held in police custody, was taken to hospital on the first and last days of custody for a gynaecological examination. However, since she refused to grant consent, the doctors did not perform any gynaecological examination. In paragraphs 20 and 21 of the Turan judgment, having regard to the fact that when the applicant refused to undergo a gynaecological examination, no force was used against her and the doctors had refrained from performing the said examination, the Court considered that the sole fact that the applicant was taken to hospital for a gynaecological examination on the first and last days of her custody did not attain the minimum level of severity within the meaning of Article 3 of the Convention.

We do not believe that the facts of the present case are different from those in the Turan case. In the Turan case, the Court declared the applicant ’ s complaint inadmissible as no gynaecological examination had been performed. The situation is exactly the same in the present case.

Having regard to the above considerations , we find that the treatment complain ed of by the applicant d id not attain the minimum level of severity to amount to degrading treatmen t within the meaning of Article 3 of the Convention.