P ARTLY DISSENTING OPINION OF JUDGE

D AVID T HÓR BJÖRGVINSSON JOINED BY JUDGE GARLICKI

The applicant claims that the circumstances in which she was subjected to a gynaecological examination constituted a breach of Article 3 and Article 8 of the Convention. The majority has found a violation of Article 8 on this account, but no violation of Article 3.

I , on the other hand, respectfully submit that Article 3 has been violated and that there is no need to examine the complaint under Article 8.

I agree with the majority that the only part of the applicant ’ s complaint that raises questions as to whether a breach has occurred relates to the gynaecological examination imposed upon her while in police custody, and the other complaints based on Article 3 should be dismissed as manifestly ill-founded as they are not sufficiently substantiated (see paragraphs 67 and 6 8 of the judgment).

I also agree with the majority in finding that any consent given by the applicant was not free and informed (see paragraph 77 of the judgment).

Therefore, in the present case a gynaecological examination was imposed upon the applicant, while in police custody, without her free and informed consent. This is where the assessment must begin as to whether the treatment she was subjected to falls under Article 3 or Article 8 of the Convention.

Medical interventions to which a detained a person is subjected with or without his or her free and informed consent can be justified on different grounds. Firstly, and most obvious, is necessary medical assistance to detained persons. Secondly, recourse to a medical intervention or procedure against the will (or without the free or informed consent) of a detained person may, under certain conditions, be justified, in order to obtain evidence of his or her involvement in the commission of a criminal offence (see, however, Jallo h v. Germany , §§ 99 et seq.)

Nothing in the case file suggests that any specific need for medical assistance on the part of the applicant prompted the disputed intervention. It cannot be justified on this ground.

Even assuming that there may be situations in which a gynaecological examination without free and informed consent may be justified, no such situation was present in the case under consideration.

As explained in paragraph 61, the main motivation of the authorities in submitting the applicant to the examination was to protect them from possible allegations of rape or other sexual harassment or abuse. However, the applicant had not made any such allegations. It was therefore a purely preventive measure to protect the authorities from possible false accusations.

I would point out that this is not the first time the respondent Government in this case have advanced this argument, but that they have used it in similar cases which are cited in this judgment. In my view this reasoning does not justify the fact that female detainees may, as a matter of course, be subjected by the authorities to the kind of medical treatment at issue.

Then the question arises whether the treatment attains the level of severity required by Article 3. Regard must be had here to the whole psychological and physical nature of the intervention. In this case the authorities persuaded the applicant, who was in a very vulnerable situation, to give “consent” that was not “free and informed”, “consent” to a treatment that in all likelihood was entirely repugnant to her. I believe that a gynaecological examination in such situations gives rise to feelings of inferiority and degradation and that, without any rationally acceptable justification, it will be understood by the subject as being aimed exclusively at debasing and humiliating her. I accordingly believe that the kind of treatment the applicant was subjected to in this situation was degrading and, as such, aroused feelings of fear, anguish and inferiority capable of humiliating and debasing her. Therefore I find that Article 3 of the Convention has been violated.

I would also add that if the applicant had only made her complaint under Article 8, I would certainly have followed the majority in finding a violation thereof. However, I find that the situation is more properly dealt with under Article 3 of the Convention.

[1] In the official documents the applicant’s surname is written as Juhnke - Özkul or Juhnke ( Özkul ).

[2] The Government submitted a copy of these photos and documents.

[3] The judgment is not yet final.