ECHR judgment of April 9, 2019 in the case of Tarak and Depe v. Turkey (application No. 70472/12).
In 2012, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, the application about the detention of the applicant’s child in the police station without any escort and without notice to the minors protection authorities was successfully examined. The case has violated the requirements of paragraph 1 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicants in this case are the mother and son, who was eight years old at the time of the events in question.
Late in the evening of October 26, 2001, police officers investigating the theft from the premises arrived to search the applicants' neighbor’s home. While searching for the suspect, police officers also came to the applicant's house. Having gone away from home, the applicant left her child under the supervision of a neighbor. However, at the end of the search, the neighbor was detained and taken to the police station. After testifying, he was released and did not have to spend the night at the police station.
According to the applicant, the police officers who had detained her neighbor also took her child with them. In the early morning hours of October 28, the mother of the child was also detained. According to her, the child was sleeping on the table when she was taken to the police station. After the interrogation, she left with him.
On the mother’s complaint, including the unlawful detention of a child, the prosecutor investigated and indicted several police officers, however, the court dismissed the case in 2009 due to the expiration of the statute of limitations.
QUESTIONS OF LAW
Regarding compliance with Article 5 § 1 of the Convention. (a) Fact-finding. The Court did not establish any evidence refuting, on the one hand, the neighbor’s testimony according to which the child was taken to the police station on the first night, and, on the other hand, the applicant’s lawyer, who stated that she had seen the child at the police station October 28, 2001.
There is also no reason to believe that the child, meanwhile, left the police station, as might have happened, for example, if the child had been supervised by a freed neighbor, another responsible neighbor or parent or relative.
The Government did not provide any evidence that could indicate, for example, that a child was transferred to a child care center within a reasonable time after arriving at the police station, or a similar argument that the minor was in the police station informed on-duty prosecutor.
The case file also does not allow establishing whether the court heard the testimony of the prosecutor, with whom, according to the lawyer, the next day she had a conversation about the child’s presence in the police station.
Thus, the aforementioned consistent and accurate evidence suggests that the child, who was eight years old at the time of the events in question, was taken by police to the police station and kept there at least from October 27 to October 28, 2001, until the arrival of his mother.
(b) The Court's assessment. Taking into account that after his arrival at the police station the child was unaccompanied, taking into account his very young age, he was left to the police station himself. Thus, he was in a vulnerable position. Under these circumstances, it does not matter if the child was in a closed and guarded building, any unauthorized exit from which was forbidden. Indeed, a young child could not be expected to leave the police station on his own.
In the Court's view, a situation characterized by such a combination of elements may be considered as “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention.
Nevertheless, the Turkish authorities did not indicate whether such deprivation of liberty pursued one of the objectives provided for by this provision of the Convention, and the case file did not contain any evidence to support the assertion that this had indeed taken place. Accordingly, it should be recognized that the applicant’s deprivation of liberty was arbitrary.
In the case there was a violation of the requirements of paragraph 1 of Article 5 of the Convention in respect of the applicant (accepted unanimously).
In addition, the Court declared inadmissible as a manifestly ill-founded complaint of a violation of Article 3 of the Convention, finding that the fact of the alleged slapping of the child in the police station had not been established and that the suffering of the mother had not reached the required level of severity.
In application of Article 41 of the Convention. The Court awarded the applicant EUR 7,500 in respect of non-pecuniary damage.