Individual Application 85/19
Press Release concerning the Judgment Finding a Violation of the Right to Personal Liberty and Security due to the Disproportionate Nature of a Minor’s Detention
On 17 July 2019, the Second Section of the Constitutional Court found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution in the individual application lodged by Semra Omak (no. 2015/19167).
The applicant is the mother of E.N., a 15 year-old minor who was detained on remand for having committed a theft.
E.N., who had taken two money-boxes including coins from a tea house, was brought before the magistrate judge who ultimately ordered his detention on remand. The challenge against his detention was dismissed.
A criminal case was brought against E.N.. The incumbent juvenile court ordered his continued detention. Shortly after this decision, E.N. committed suicide at the juvenile wing of the penitentiary institution. The incumbent court then discontinued the proceedings on account of E.N.’s death.
The Applicant’s Allegations
The applicant maintained that the right to personal security and safety had been violated due to the unlawfulness of her son’s detention.
The Court’s Assessment
In determining whether the detention measure is proportionate under the relevant provisions of the Constitution, all circumstances of the concrete case must be taken into consideration. In the present case, the minor status of the applicant must also be borne in mind.
Detention of a minor is a measure of last resort pursuant to the Child Protection Law no. 5395 which sets forth that a minor’s detention may be ordered only when the measure of conditional bail has proven, or appears, to be inconclusive or such measures have not been complied with. Accordingly, in the present case, the measure of conditional bail should have been primarily applied. Nor was there any assessment demonstrating that in ordering E.N.’s detention, the incumbent judge took his being a minor into consideration.
The grounds relied on by the magistrate judge in the detention order do not give the impression that E.N.’s detention was a measure of last resort. Besides, it does not appear that the judge ordering detention had considered the alternative measures instead of detention. Therefore, the impugned detention was found disproportionate.
Consequently, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.