issued by the Registrar of the Court

ECHR 281 (2016)

13.09.2016

The requirement for a minor in prison to file a complaint before starting

criminal proceedings was contrary to the Convention

In today’s Chamber judgment¹in the case of A.Ş. v. Turkey (application no. 58271/10) the European

Court of Human Rights held, unanimously, that there had been:

a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European

Convention on Human Rights on account of the physical violence to which the applicant had been

subjected.

The case concerned the sexual assault and physical violence to which the applicant was subjected

while in pre-trial detention in Maltepe young offenders’ prison in Istanbul, and the lawfulness and

duration of that detention.

With regard to the assaults on the applicant, who had been a minor and in detention at the time of

the events, the Court concluded that, by requiring the applicant to lodge a formal complaint as a

prerequisite for instituting criminal proceedings, without taking account of his particular

vulnerability, Turkish criminal law, although it criminalised attacks on persons’ physical integrity of

the kind complained of, had in the present case rendered ineffective the legal enforcement

measures designed to protect individuals against treatment contrary to Article 3 of the Convention.

The Court also held that, in the context of their duty to supervise persons in detention and prevent

them from being subjected to bodily harm, the authorities had not failed in their positive obligation

to protect the applicant’s physical integrity.

As to the complaint concerning the allegedly excessive length of the applicant’s pre-trial detention,

the Court considered that the applicant should have applied to the domestic courts for

compensation on the basis of Article 141 § 1 (d) of the Code of Criminal Procedure.

Principal facts

The applicant, Mr A.Ş., is a Turkish national who was born in 1995 and lives in İstanbul (Turkey).

At the age of thirteen and a half, A.Ş. was accused of sexually assaulting a child of eight on 6 June

2008. In view of the offence of which he was suspected, the Youth Assize Court of Üsküdar decided

to remand him in custody on 18 February 2010. On 10 May 2010 it found him guilty of attempted

rape causing bodily harm to the victim, and sentenced him to five years and ten months in prison

without suspension.

The judgment was quashed by the Court of Cassation and A.Ş. was therefore released on

6 May 2011. However, he was again sentenced after a retrial to the same prison term as that handed

down by the first trial court. A.Ş. appealed on points of law against that decision and the case is still

pending. In February 2011 he was charged with illegal restraint in connection with the same events

of 6 June 2008, and was found guilty in 2012. An appeal against that judgment is also pending.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

On 27 and 31 March 2010, while he was in pre-trial detention, placed in a dormitory for juveniles

who had committed similar sexual offences, A.Ş., then fifteen, was the victim of sexual assault by

one of the other detainees, M.B., aged seventeen. He was also beaten up by three other detainees

because he had not reported the assault by M.B.

The prison authorities, alerted to the events when the emergency call button in the dormitory was

activated, took disciplinary action against M.B. and the three other assailants by placing them in

solitary confinement. A medical examination of the victim found bruising around the anus and

buttocks and traces of blows to the legs. The prison authorities also informed the Kartal public

prosecutor that A.Ş. wished to file a complaint against his assailants. However, on 14 April 2010 the

public prosecutor discontinued the proceedings against the three assailants on the ground that

prosecution of the offence complained of depended on a complaint by the victim and that the latter,

who had been able to defend himself both physically and mentally, had stated that he no longer

wished to file a complaint.

M.B. was charged by the Üsküdar public prosecutor with aggravated sexual assault and illegal

restraint. On 24 May 2012 he was sentenced to eight years and nine months’ imprisonment.

Complaints, procedure and composition of the Court

Relying on Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading

treatment), the applicant alleged that he had been physically and sexually assaulted by other

inmates while he was in custody and under the responsibility of the State. He accused the State of

failing in its duty to protect persons under its supervision.

Under Article 5 §§ 1 and 3 (right to liberty and security), 5 § 4 (right to a speedy decision on the

lawfulness of detention) and 5 § 5 (right to compensation) the applicant complained that he had

been placed in pre-trial detention unfairly and for a lengthy period. He also challenged the Assize

Court’s decision not to suspend his sentence.

The application was lodged with the European Court of Human Rights on 21 September 2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Julia Laffranque (Estonia), President,

Işıl Karakaş (Turkey),

Nebojša Vučinić (Montenegro),

Valeriu Griţco (the Republic of Moldova),

Ksenija Turković (Croatia),

Jon Fridrik Kjølbro (Denmark),

Georges Ravarani (Luxembourg),

and also Hasan Bakırcı, Deputy Section Registrar.

Decision of the Court

Article 3

Noting that in the present case the attacks to which A.Ş. had been subjected in detention had been

of an inhuman and degrading nature, the Court examined whether the authorities had complied

with their positive obligations under Article 3.

With regard to the sexual assault, the Court noted that the prison authorities had opened an internal

investigation as soon as they had become aware of the events, that A.Ş. had been taken to hospital

immediately to undergo a medical examination, that statements had been taken from all those

involved and that disciplinary action had been taken against A.Ş.’s assailant. The prison authorities

had subsequently informed the public prosecutor of the incident and the latter had instituted an

investigation which had resulted in the prosecution of A.Ş.’s assailant, who had been tried and

sentenced to eight years and nine months’ imprisonment. The Court considered that the domestic

law had afforded A.Ş. effective and sufficient protection against the infringement of his physical

integrity linked to the sexual assault.

As to the physical assault, the Court noted that when questioned by the public prosecutor, A.Ş. had

stated that he did not wish to file a complaint. The prosecutor had therefore discontinued the

proceedings on the ground that if the acts complained of constituted an offence a prosecution could

only be brought on the basis of a formal complaint by the victim.

The Court observed that when the acts complained of were committed A.Ş. had been in detention

and hence under the supervision and responsibility of the prison authorities. The Court reiterated

that prisoners were in a vulnerable situation and that the authorities had a duty to protect them.

Moreover, A.Ş. had been a minor at the time of the events. The Court stressed that minors were

inherently more vulnerable than adults.

The Court also noted that, under Article 86 § 3 of the Criminal Code, the filing of a complaint was not

a requirement where the victim of an assault was a person not capable of defending him or herself.

The Court observed that this provision did not specifically cover minors in detention. In the present

case, as the report by the forensic medical institute had found that A.Ş. had been able to defend

himself both physical and mentally, the public prosecutor had taken the view that he did not fall into

the category of victims covered by Article 86 § 3.

By requiring the applicant to lodge a formal complaint as a prerequisite for the bringing of criminal

proceedings, without taking into account his particular vulnerability, Turkish criminal law had in the

present case rendered ineffective the legal enforcement measures designed to protect individuals

against treatment contrary to Article 3 of the Convention. The Court therefore found a violation of

that provision.

As to the conduct of the prison authorities, it could not be said, in the Court’s view, that they should

have known that A.Ş. was at risk of being subjected to treatment contrary to Article 3 of the

Convention by his fellow inmates. The Court also stressed that as soon as the prison authorities had

learned of the assaults on A.Ş., the prison guards had intervened and placed A.Ş. in a different

dormitory in order to prevent a repetition of the treatment complained of.

The Court concluded that the authorities had not failed in their positive obligation to protect the

applicant’s physical integrity in the context of their duty to supervise persons deprived of their

liberty and to prevent them from being subjected to bodily harm.

Article 5

In so far as A.Ş. complained of having been placed unfairly in pre-trial detention, the Court noted

that he had been remanded in custody on 18 February 2010. However, as A.Ş. had not appealed

against the decision in question, he had been required to submit his application within six months of

that decision. As the present application had been lodged on 21 September 2010, this complaint was

rejected by the Court as being out of time.

With regard to the allegedly excessive length of the applicant’s pre-trial detention, the Court noted

that at the time the application was lodged A.Ş. had not had an effective remedy by which to obtain

compensation for excessively lengthy pre-trial detention, as no such remedy had been available until

the proceedings had been concluded. However, the Court considered that, following a change in the

case-law in June 2015, a legal rule had existed allowing the applicant to give the national courts the

opportunity to redress the alleged breach of Article 5 § 3 of the Convention. The Court considered

that A.Ş. should have applied to the domestic courts for compensation under Article 141 § 1 (d) of

the Code of Criminal Procedure. His complaint therefore had to be dismissed for failure to exhaust

domestic remedies.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary

damage. It rejected the claim for reimbursement of costs and expenses as the applicant had not

demonstrated, on the basis of the relevant supporting documents, that these had been actually and

necessarily incurred and were reasonable as to quantum.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.