Last Updated on April 29, 2019 by LawEuro
Information Note on the Court’s case-law 228
April 2019
Tarak and Depe v. Turkey – 70472/12
Judgment 9.4.2019 [Section II]
Article 5
Article 5-1
Deprivation of liberty
Eight-year-old child alone left for over twenty-four hours in a police station without being reported to the child welfare authorities: Article 5 § 1 applicable; violation
Facts – The applicants are a mother and her child, who was eight years old at the material time.
Late in the evening of 26 October 2001 police officers investigating a burglary searched the home of one of the applicants’ neighbours; they also visited the applicants’ home, looking for one of the suspects. The first applicant was absent, having entrusted her child to the neighbour. After the house search the neighbour was arrested and taken to the police station. His statement was taken and he was released, and thus did not have to spend the night at the police station.
According to the first applicant, the police officers who had arrested the neighbour had also taken the child away with them. In the early hours of 28 October the mother was also arrested. She submitted that the child had been asleep on a desk on her arrival at the police station. After questioning, she left the station with the child.
Further to a complaint lodged by the mother concerning, inter alia, abusive detention of her child, the public prosecutor made inquiries and charged a number of police officers, but the court dropped the case in 2009 as statute-barred.
Law – Article 5 § 1
a) Establishment of the facts – The Court did not note any evidence to contradict, on the one hand, the neighbour’s statement that the child had been taken to the police station the first evening, or on the other, the first applicant’s lawyer’s statement that she had seen the child at the police station on 28 October 2001.
Nor was there any indication that the child had left the police station in the meantime, as might have been the case, for example, if he had been taken care of by the released neighbour, by another responsible neighbour or by a relative or friend.
The Government had not presented any evidence to suggest, for example, that the child had been transferred, within a reasonable time after his arrival at the police station, to a childcare centre or a similar agency; or that the duty prosecutor had been notified of a child’s presence at the police station.
Nor did the case file indicate whether the court had taken a statement from the prosecutor with whom the lawyer had affirmed that she had spoken the following day concerning the child’s presence at the police station.
Accordingly, the above-mentioned specific concurring evidence enabled the Court to conclude that the child, who had been eight years old at the time, had been taken to the police station by the police officers and been held there, alone, at least from 27 to 28 October 2001, until his mother’s arrival.
b) Assessment – Having regard to the fact that this very young child had not been accompanied after his arrival at the police station, he had been left to his own devices on the police premises. He had therefore been in a situation of vulnerability. Under those circumstances, it was immaterial whether or not the child had been inside a closed, heavily guarded building from which no one could exit without due authorisation. Indeed, such a very young child could not be expected to have left the police station on his own.
The Court took the view that this highly complicated situation could be characterised as “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention.
The Government did not mention whether that deprivation of liberty had pursued one of the aims authorised under Article 5; nor did the case file comprise any evidence that that had been the case. Consequently, the second applicant’s deprivation of liberty should be considered to have been arbitrary.
Conclusion: violation in respect of the second applicant (unanimously).
Furthermore, the Court declared inadmissible as manifestly ill-founded the complaints under Article 3 of the Convention, on the grounds that the allegation that the child had been slapped in the face at the police station had not been established, and that the anxiety suffered by the mother had not attained the requisite severity threshold.
Article 41: EUR 7,500 to the second applicant in respect of non-pecuniary damage.
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