Y.F. v. Turkey

YF was a Turkish national. On 15 October 1993, he was taken into custody on suspicion of aiding and abetting the Kurdish Workers Party (PKK), an illegal terrorist organization. Two days later, his wife, NF, was also taken into custody. NF was held in custody for four days, during which time she was allegedly kept blindfolded, hit with truncheons, verbally insulted and threatened with rape.

On 20 October 1993, while still in custody, NF was examined by a doctor who reported no signs of ill-treatment. The police then took her to a gynecologist to establish whether she had had intercourse while in custody. Despite her refusal, NF was forced to undergo a gynecological examination. The doctor concluded that she had not had sexual intercourse while in custody.

On the same day, NF was taken to the Public Prosecutor’s office and complained about the forced examination. The Prosecutor ordered her release but did not record her complaints.

On 28 October 1993, both YF and NF were charged with aiding and abetting members of the PKK. On 23 March 1994, they were both acquitted for lack of evidence.

On 9 February 1995, YF and NF complained to the Bingol Public Prosecutor about their ill-treatment. The police officer rejected the allegations and argued that not only had the gynecological examination been necessary to ensure that NF had not been sexually assaulted while in police custody but also that she had consented to the examination. On 5 October 1995, the Public Prosecutor decided not to prosecute the police officers for lack of evidence. YF and NF appealed and, on 29 November 1995, the Mus Assize Court quashed the decision on the basis that the investigation was not complete.

On 19 December 1995, the Public Prosecutor charged three police officers with violating NF’s private life by forcing her to undergo the examination. On 16 May 1996, the officers were acquitted by the Bingol Assize Court and maintained that they had no intention of subjecting her to degrading treatment but that they were trying to protect themselves against a possible accusation of rape. On 7 May 1997, the Court of Cassation upheld the Bingol Assize Court’s judgment.

On 13 May 1994, YF lodged an application with the Commission, complaining that the forced gynecological examination of NF violated Article 8. The application was transmitted to the Court on 1 November 1998, and declared partly admissible on 29 February 2000.

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

(1) as a close relative of the victim, YF was entitled to bring proceedings in respect of violations of NF’s rights;

(2) it was undisputed that NF underwent a gynaecological examination following her detention in police custody;

(3) Art 8 clearly applied to complaints that relate to the physical and psychological integrity of a person;

(4) a person’s body concerned the most intimate aspect of one’s private life and, as such, compulsory medical intervention, even if it was of minor importance, constituted an interference with the right;

(5) in the circumstances, and because of her vulnerability, NF could not have been expected to resist the examination, and the forced gynaecological examination was, therefore, ‘interference by a public authority’;

(6) such interference will violate Art 8 unless it is in ‘accordance with law’, pursues a legitimate objective and can be considered ‘necessary in a democratic society’;

(7) the examination was not in accordance with law since, under Turkish law, physical interference with a person’s body is only permitted in the case of medical necessity or if allowed by law, neither of which exceptions applied;

(8) the forced gynaecological examination was, therefore, in breach of Art 8; and

(9) within three months of final judgment, the state was to pay 4,000 euros in respect of non-pecuniary damages and 3,000 euros less 625 euros for costs and expenses (and default interest at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points).

[Adapted from INTERIGHTS summary, with permission]

"The Court observes that Article 8 is clearly applicable to these complaints, which concern a matter of “private life”, a concept which covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p.11, § 22). It reiterates in this connection that a person's body concerns the most intimate aspect of private life. Thus, a compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right..." Para 33.

"However, in this case the Government failed to demonstrate the existence of a medical necessity or the circumstances defined by law. Nor did they suggest that a request for a medical examination had been made by the public prosecutor. Finally, while the Court accepts 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, it considers that any interference with a person's physical integrity must be prescribed by law and requires the consent of that person. Otherwise, a person in a vulnerable situation, such as a detainee, would be deprived of legal guarantees against arbitrary acts." Para 43.