Juhnke v. Turkey (52515/99)
| Date | 20080513 |
|---|---|
| Article | 6(1), 8 |
| Decision | violation |
No violation of Article 3
Violation of Article 8
Violation of Article 6 § 1 (fairness)
Juhnke v. Turkey (no. 52515/99)
The applicant, Eva Tatjana Ursula Juhnke, is a German national who was born in 1965 and lives in Germany.
In October 1997 Ms Juhnke was arrested by Turkish soldiers on suspicion of membership of an illegal armed organisation, the PKK (Workers’ Party of Kurdistan) and handed over to gendarmes stationed in Hakkari (Turkey). In September 1998 she was convicted as charged and sentenced to 15 years’ imprisonment. She was released in December 2004 and deported to Germany.
The case concerned, in particular, the applicant’s complaint that her detention was unlawful and that during that detention she was subjected to ill-treatment and a gynaecological examination against her will. She relied on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 8 (right to respect for private and family life). She also complained under 6 § 1 (right to a fair trial) that, in particular, she was denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried and convicted her. Further relying on Article 13 (right to an effective remedy), she claimed that the Turkish authorities’ inadequate response to her complaints hindered her right to bring compensation proceedings. Lastly, she alleged that the treatment to which she was subjected by the authorities had been motivated by her sex and political opinions, in breach of Article 14 (prohibition of discrimination).
The Court, finding that there was no evidence to substantiate the applicant’s allegation that she had been subjected to ill-treatment, declared that part of her complaint inadmissible. The Court further found the applicant’s allegation that she had been forced to have a gynaecological examination to be unsubstantiated. It therefore held by five votes to two that there had been no violation of Article 3.
However, the Court did find that the applicant had resisted a gynaecological examination until persuaded to agree to it and that, given the vulnerability of a detainee in such circumstances, the applicant could not have been expected to indefinitely resist having such an examination. The Court decided to examine that issue from the point of view of Article 8. The Court found that there had been an interference with the applicant’s private life in that the examination had been imposed on her without her free and informed consent. Indeed, it even considered that she might have been misled into believing that the examination had been compulsory. Nor had it been shown that that interference was “in accordance with the law”. Moreover, the examination appeared to have been a discretionary measure taken by the authorities to safeguard those members of the security forces who had arrested and detained the applicant against a false accusation of sexual assault. That safeguard did not justify seeking to persuade a detainee to agree to such an intrusive and serious interference with her physical integrity, especially given that she had not complained of having been sexually assaulted. The interference had not therefore been “necessary in a democratic society” either. Accordingly, the Court held by five votes to two that there had been a violation of Article 8.
The Court further held unanimously that there had been a violation of Article 6 § 1, reiterating that it had already frequently found a violation of that article in a large number of cases raising a similar issue.
Lastly, the Court held unanimously that it was not necessary to examine the applicant’s other complaints under Articles 6, 13 and 14 and declared inadmissible the applicant’s complaint under Article 5.
Ms Juhnke was awarded EUR 4,000 in respect of non-pecuniary damage. (The judgment is available only in English.)