Individual Application

The Facts

The applicant, a Colombian woman, after arriving at Turkey, was taken to the police station by the police officers who became suspicious about her behaviours at the airport. During her body search, she was found to be carrying drugs. According to the applicant’s allegation, which she raised before the court, she was also subjected to an internal body search by a female police officer in the toilet of the police station as a result of which drugs were found also in her vagina.

Upon finding drugs on the applicant’s body, the police officers called the public prosecutor and received his instruction. In accordance with the written instruction of the public prosecutor, the applicant was subjected to an internal body search by the health officers at the hospital and as a result, drugs were found also in her abdomen. Subsequently, at the end of the judicial proceedings, the applicant was convicted of importing drugs or stimulants. The applicant’s subsequent appeal was dismissed, and the decision that was upheld by the Court of Cassation became final.

The Applicant’s Allegations

The applicant maintained that her right to protection of her corporeal and spiritual existence had been violated due to the unlawful internal body search performed by a police officer, and that her right to a fair trial had also been violated due to her conviction on the basis of the evidence obtained unlawfully.

The Court’s Assessment

1. Right to Protection of Corporeal and Spiritual Existence

In the present case, it was claimed that an unlawful internal body search had been conducted by a police officer within the scope of judicial search. The Court has examined the impugned search process not within the scope of the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution, as it did not attain the minimum level of severity to constitute an ill-treatment, but within the scope of the right to protection of one’s corporeal and spiritual existence safeguarded by Article 17 § 1 of the Constitution.

Article 75 of the Criminal Procedure Code stipulates that internal body search shall be carried out by a judge or, in non-delayable cases, only by a medical officer upon the instruction of the public prosecutor. Since the relevant legal restrictions regulate certain exceptions ensuring the lawfulness of the interference with the constitutional right at stake, any process of internal body search that does not comply with these legal restrictions may result in a violation of the constitutional right.

In the present case, neither were these guarantees complied with nor did the public authorities provide a satisfactory explanation in this regard. As a matter of fact, what should have been done by the police officers even in case of a justified and heavy suspicion that the applicant had been carrying drugs in her body cavity was to call the public prosecutor immediately with a view to preventing the loss of evidence and to act in accordance with the latter’s instruction. The internal body search carried out by a police officer who was not authorized to carry out such a process without notifying the public prosecutor and thus in the absence of his instruction had no legal basis.

Consequently, the Court has found a violation of the right to protection of one’s corporeal and spiritual existence safeguarded by Article 17 of the Constitution.

2. Right to a Fair Trial

The applicant did not challenge as regards all of the drugs found on her body, but only the part found by the police officer through internal body search. However, it is seen that throughout the proceedings, no assessment was made as to whether the impugned drugs had been seized in an unlawful manner.

It cannot be fully understood from the reasoning of the judgment whether the drugs seized in an unlawful manner were among the evidence forming a basis for the judgment. Therefore, an assessment should be made by assuming that the unlawful evidence in question was taken as a basis for the judgment. In this respect, it should be considered whether the allegedly unlawful evidence was the only or decisive evidence on which the judgment was based, as well as whether it impaired the fairness of the proceedings as a whole.

According to the reasoning of the judgment, there were more than one evidence forming a basis for the applicant’s conviction. It is beyond dispute that approximately three and a half times more of the impugned amount of drugs had been seized lawfully. Thus, the impugned evidence was not the only evidence, nor was it decisive.

The applicant was able to raise her claims and challenges both before the inferior courts and the Court of Cassation. Thus, the principles of equality of arms and the adversarial proceedings were respected. The inferior court examined that merits of the applicant’s allegations and also provided sufficient justifications in its judgment. In view of all issues mentioned above, even if it is considered that the unlawfully seized drugs were relied on for the applicant’s conviction, it has been concluded that this situation did not impair the fairness of the proceedings as a whole.

Consequently, the Court has found no violation of the right to a fair hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.