Press Release No: Individual Application 38/17
07.12.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO LIBERTY AND SECURITY ON THE DETENTION ORDERED WITHOUT CONSIDERING MINOR STATUS OF THE APPLICANT

On 25 October 2017, the First Section of the Constitutional Court found a violation of the right to liberty and security enshrined in Article 19 of the Constitution in the individual application lodged by Furkan Omurtag (no. 2014/18179).

The Facts

The applicant, who was a minor at the relevant time, was detained on remand for attempted theft. The applicant’s objections against his detention were dismissed by the Magistrate Judge’s Offices.

The chief public prosecutor’s office indicted the applicant for malicious damage of property, criminal trespass to a residence, and attempted theft.  

After having lodged an individual application, the applicant was released by the competent criminal court. At the end of the trial, the court imposed a fine on him for theft of the material within the fixtures of a building, criminal trespass to a residence, and malicious damage of property. 

The Applicant’s Allegations

The applicant maintained; that he was detained on remand despite being a minor, that his detention was unlawful and disproportionate, and that the charges against him were not of a severe nature which would necessitate his detention. He accordingly alleged that his right to liberty and security was violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Article 19 §§ 2 and 3 provide that individuals may be detained under the circumstances enumerated therein with due process of law. Therefore, the right to liberty and security may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which general standards with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to establish whether a restriction complies with the requirements enshrined in Article 13 of the Constitution, i.e., the requirements of being prescribed by law; relying on one or more valid reasons specified in the relevant articles of the Constitution; and not being contrary to the principle of proportionality. 

Pursuant to Article 19 § 3 of the Constitution, only “individuals against whom there exists strong indication of guilt” may be detained. Under the same provision, individuals against whom there exists strong evidence of having committed an offence may be detained only upon a detention order given by a judge and solely for the purposes of preventing escape or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.

Regard being had to the fact that the applicant was arrested running from the police upon committing a criminal act, it has been considered that the existence of strong criminal suspicion on the part of the applicant, as well as the risk of his fleeing had factual basis.

It must be also determined whether the applicant’s detention was proportionate or not, bearing in mind that he was a minor at the material time. 

As regards the detention of minors, it must be taken into consideration in light of the relevant international conventions and instruments that detention is the last remedy to be applied for the minors and if it is inevitable to have recourse to this measure, it must be discontinued in the shortest time possible. Nevertheless, this principle cannot be construed that the minors can in no way be detained. As also underlined in a Recommendation adopted by the Committee of Ministers of the Council of Europe addressed to the member states, the detention measure may be applied in exceptional cases where minors who are of relatively older age have committed very serious offences.

In the present case, the detention order against the applicant did not involve an assessment revealing that his status as a minor was taken into consideration. It cannot be therefore concluded that in ordering the applicant’s detention, the principles enshrined in the international conventions and instruments were complied with and in finding the other available measures insufficient, due regard was paid to the applicant’s age.      

Besides, considering the fact that minors may be detained only in exceptional cases of very serious offences, the court ordering the applicant’s detention failed to demonstrate to what extent the offence of attempted theft was serious in the specific circumstances of the present case.

Furthermore, the offence imputed to the applicant cannot be considered to be serious in its nature when one considers the penalty imposed. As a matter of fact, at the end of the trial the applicant was only sentenced to a fine for the imputed offences. Regard being had to the relevant legal provision providing that in case of failure to pay a fine imposed on a minor, this penalty cannot be converted into imprisonment, the applicant’s detention cannot be considered proportionate as to the seriousness of the offence and severity of the sanction. 

Consequently, the Constitutional Court found a violation of Article 19 § 3 of the Constitution safeguarding the right to personal liberty and security. Other complaints were found inadmissible. 

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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