PROCEDURE

The case originated in an application (no. 7496/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Filiz Uyan (“the applicant”), on 3 February 2003.

The applicant was represented by Mrs I.G. Kireçkaya, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

On 13 December 2005 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1966 and at the time of the events was serving a prison sentence in the Buca Prison in İzmir.

She had been convicted of being a member of a terrorist organisation and sentenced to twenty-two years’ imprisonment.

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.

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.

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.

1. The proceedings against the gendarme officers

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.

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.

The applicant did not file an appeal and the decision became final on 30 January 2002.

2. The proceedings against the male prison guard

On 26 and 27 November 2001 respectively, the İzmir public prosecutor took statements from the male prison guard and the applicant as the complainant.

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.

On 29 July 2002 the Karşıyaka Assize Court dismissed the applicant’s appeal against that decision.

3. The proceedings against the doctor

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.

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.

The applicant objected and on 5 October 2002 the Turkish Medical Association (Türk Tabipleri Birliği) quashed that decision.

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.