CASE OF FİLİZ UYAN v. TURKEY
Remainder inadmissible;Violation of Art. 3 (substantive aspect)
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicant was born in 1966 and at the time of the events was serving a prison sentence in the Buca Prison in İzmir. 5. She had been convicted of being a member of a terrorist organisation and sentenced to twenty-two years’ imprisonment. 6. On 12 November 2001, following the prison doctor’s referral, the applicant was taken to İzmir-Yesilyurt Atatürk Training and Research Hospital, escorted by three male security officers (two gendarmes and a male prison guard) and one female prison guard, in order to undergo an ultrasound scan by a gynaecologist. 7. In the hospital the applicant was taken to a consultation room located on the ground floor. The bottom of the consulting room windows was only 50 cm above floor level and the windows were unprotected. The applicant’s handcuffs were not removed and the male security officers refused to leave the consultation room for security reasons. They stated that they would wait behind a folding screen. The applicant refused to be examined in such conditions. Accordingly, the gynaecologist issued a medical report stating that she had not been able to perform the requested ultrasound scan as the patient had not given her consent. 8. On 14 November 2001 the applicant’s representative applied to the İzmir Public Prosecutor’s Office, accusing the gendarmes and the male prison guard of misconduct, arbitrary treatment and insulting the applicant. 9. On 15 November 2001 the İzmir Public Prosecutor’s Office separated the investigation file in respect of the accused gendarme officers, noting that, pursuant to Law no. 4483 on the Prosecution of Civil Servants and Public Officials, permission to prosecute had to be sought from the District Governorship. 10. On 28 December 2001 the Buca District Governor decided not to authorise the prosecution of the gendarme officers, stating that the applicant’s allegations were unsubstantiated. 11. The applicant did not file an appeal and the decision became final on 30 January 2002. 12. On 26 and 27 November 2001 respectively, the İzmir public prosecutor took statements from the male prison guard and the applicant as the complainant. 13. On 3 December 2001 the public prosecutor decided not to prosecute the prison guard. Referring to the doctor’s note dated 12 November 2001, in which it was stated that no examination had been performed as the applicant had not given her consent, the prosecutor decided that the applicant’s allegations were unsubstantiated. 14. On 29 July 2002 the Karşıyaka Assize Court dismissed the applicant’s appeal against that decision. 15. In the meantime, on 23 January 2002, the applicant’s lawyer filed a complaint with the İzmir Medical Association (İzmir Tabip Odası) against the doctor who had not asked the male security officers to leave the room or remove the applicant’s handcuffs. 16. On 8 April 2002 the İzmir Medical Association found it unnecessary to initiate criminal proceedings against the doctor, holding that she had not treated the applicant disrespectfully. 17. The applicant objected and on 5 October 2002 the Turkish Medical Association (Türk Tabipleri Birliği) quashed that decision. 18. On 23 January 2003 the İzmir Medical Association examined the file once again and decided to issue the doctor with a warning for professional misconduct, namely for not taking the initiative to request the male security officers to leave the consultation room or remove the applicant’s handcuffs, as required by ethical rules. 19. The Protocol for Prisons signed by the Ministries of Justice, Health and the Interior (6 January 2000) provides: “...during the medical examination at the hospital of those who are remanded or convicted in connection with terror-related crimes, the gendarmerie will wait in the consultation room to secure the area, at a distance so as not to hear the conversation between the doctor and the patient. Where women prisoners are remanded or convicted in connection with terror-related crimes, if the consultation room has protection the gendarme officers will wait outside the consultation room. If the room does not have protection the gendarme officers will wait in the room at a distance so as not to hear the conversation between the doctor and the patient.” “Remand and convicted prisoners who are transferred to health institutions from Closed Prisons and Detention Centres and who are to be examined or hospitalised in these health institutions will be accompanied by an adequate number of guards, appointed by the prison administration, and the remanded and convicted prisoners’ administrative formalities in the hospital will be carried out by these guards.” 20. The Regulation on the External Protection of Prisons and Transfer Procedures provides insofar as relevant as follows: “...handcuffs are not removed unless they hinder the treatment/examination and as long as their removal is not requested by the doctor.” 21. The CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning health care services in prisons (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, pages 31 and 34) provide as follows: “... All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers... If recourse is had to a civil hospital, the question of security arrangements will arise. In this respect, the CPT wishes to stress that prisoners sent to hospital to receive treatment should not be physically attached to their hospital beds or other items of furniture for custodial reasons. Other means of meeting security needs satisfactorily can and should be found; the creation of a custodial unit in such hospitals is one possible solution.”