CASE OF ÇOŞELAV v. TURKEY
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
5. The applicants were born in 1957 and 1961 respectively and live in Istanbul. 6. On 29 December 2003 the applicants’ then sixteen-year-old son, Bilal Çoşelav, was serving a prison sentence in the juvenile wing of Kars Prison when he made an attempt to take his own life by hanging himself in the courtyard. Prison warders arriving at the scene resuscitated him and he was subsequently returned to his prison wing. In a statement taken by the prison governor, Bilal Çoşelav was reported as having explained that he was finding it difficult to adapt to prison life and that he was suffering from psychological problems. 7. Disciplinary proceedings were brought against Bilal Çoşelav for his attempted suicide but the disciplinary board decided not to impose a punishment. The board told him that “he was setting a bad example to other inmates”, and warned him that if he were to do “such things” again he would be treated more severely. 8. Bilal Çoşelav made another attempt to kill himself on 19 January 2004 by taking an overdose. He was taken to hospital for treatment and then on 28 January 2004 he was transferred to Erzurum Prison. 9. On 9 February 2004 a prisoner told the governor of Erzurum Prison that Bilal Çoşelav had been “behaving oddly”, had talked about hanging himself, and his behaviour had been causing concern in the juvenile wing. 10. On the same day, Bilal Çoşelav was transferred from the juvenile wing of the prison to another wing which housed adult prisoners from his home town. According to a report drawn up by prison officers, this had been at the request of Bilal Çoşelav, who had claimed that “although his identity card showed that he was seventeen years old, he was actually older” and could therefore be detained in an adult wing. 11. On 16 February 2004 Bilal Çoşelav told the prison governor that he wanted to be transferred to another wing because he did not get on with the people in his wing. 12. Between 27 February and 10 December 2004 Bilal Çoşelav sent twenty-two letters to the prison governor and the prosecutor of Erzurum Prison stating that he urgently needed to see the governor to discuss his personal problems. On the few occasions on which his requests were granted he told the governor that he wanted to be transferred to another wing in the prison. He also informed the governor that he had not been visited regularly by his family, that he did not have any money and that he wanted to work in the prison to earn some. 13. According to two reports drawn up by prison officers, on 15 December 2004 Bilal Çoşelav met with the deputy governor and asked to be transferred to another cell. When his request was refused he tried to attack a prison warder with a razor blade, kicked and broke the sink in his cell and set fire to his mattress. 14. According to another report drawn up by prison officers, on 17 December 2004, at approximately 10.00 a.m., Bilal Çoşelav injured his head by repeatedly hitting it against his cell walls and was then taken to the infirmary to have the injury treated. Later on the same day, he was brought back to the wing and placed in a cell on his own. 15. At around 1.30 p.m. that same day, Bilal Çoşelav hanged himself from the iron bars of his cell with his bed sheets. A doctor arrived and for five minutes tried unsuccessfully to resuscitate him, finally pronouncing him dead. 16. Later on the same day, the Erzurum prosecutor and a doctor arrived at the prison and photographed Bilal Çoşelav’s body. They then took the body to the local hospital where, on the same day, a post-mortem examination was carried out. According to the post-mortem report, the cause of death was asphyxia. Samples taken from the body were sent for further forensic examination. 17. Between 17 and 21 December 2004 prosecutors questioned the prison officers. Their statements agreed with the above-mentioned reports. The prisoners questioned by the prosecutors stated that they had not seen the incident. Both the prison officers and the prisoners claimed that they knew Bilal Çoşelav had problems. 18. It appears from a report that, on 30 December 2004, a prosecutor instructed the prison governor to inform the family of Bilal Çoşelav’s death. Later on the same day the prison governor obtained the telephone number of the second applicant (Bekir Çoşelav) from the prison records and informed him of the death of his son. 19. On 3 January 2005 the second applicant formally identified the body of his son. On the same day, the prosecutor released the body for burial. 20. On 7 January 2005 the second applicant met with the Erzurum prosecutor and told him that he had not been informed of the death of his son until 30 December 2004. He alleged that Bilal had not had any problems with his family and that he might have been killed by two prison warders with whom he had argued in the days leading up to his death. He also wanted the prison officers prosecuted for their failure to inform him promptly of his son’s death. 21. Proceedings were brought by the disciplinary board of the prison against two prison warders who had been on duty in Bilal Çoşelav’s wing on the day he committed suicide. On 3 February 2005 the disciplinary board decided to give formal warnings to these warders. It was noted in the disciplinary board’s report that the large number of cells in the wing had made it impossible for the warders to keep a constant watch on Bilal Çoşelav, who had been suffering from psychological problems. However, adequate precautions could have been taken by increasing the number of prison warders there, which would have ensured that he was under sufficient surveillance. 22. On 10 February 2005 both applicants, with the assistance of their legal representative, submitted a detailed complaint to the prosecutor claiming, inter alia, that the iron bars from which their son had allegedly hanged himself were too low - for a person of his height (180 cm) - to have been effective for this purpose. 23. The doctors who had examined the samples taken from Bilal Çoşelav’s body stated in their report of 29 March 2005 that his death had been caused by hanging. 24. On 29 April 2005 the Erzurum prosecutor decided to close the criminal investigation stating that, in his opinion, no one had incited or encouraged Bilal Çoşelav to commit suicide. 25. On 3 May 2005 the Directorate for Prisons informed the second applicant that disciplinary proceedings had been brought against the prison officers who had failed to inform the family of the suicide of their son. 26. The applicants filed an objection against the prosecutor’s decision to close the criminal investigation. They argued that the prosecutor had failed to carry out a thorough investigation into the facts surrounding their son’s death. 27. The objection was dismissed by the Oltu Assize Court on 7 February 2006. That decision was communicated to the applicants on 6 September 2006. 28. In the meantime, on 21 November 2005, the applicants wrote to the Ministry of Justice claiming compensation for the death of their son. In their letter the applicants argued, inter alia, that even assuming that their son had committed suicide, this was on account of the prison authorities’ failure to take adequate steps to protect his right to life. When the Ministry of Justice failed to respond to their letter, the applicants brought an action against the Ministry before the Erzurum Administrative Court on 8 February 2006. 29. On 29 December 2006 the Erzurum Administrative Court, by a majority of two to one, rejected the applicants’ case, with the majority considering that the prison authorities could not be blamed for Bilal Çoşelav’s suicide, which had occurred as a result of his family problems. The dissenting judge, however, noted in his separate opinion that Bilal Çoşelav was being held in an adult wing of the prison in breach of the applicable domestic law, which required that he be kept in a juvenile wing. The judge argued that the possibility that his detention with adults had contributed to his psychological problems could not be excluded. He added that the fact that Bilal had repeatedly asked to be transferred showed that he had been having problems with the adult prisoners in his wing. The dissenting judge concluded by arguing that Bilal Çoşelav should have been kept under constant observation, at least on that particular day when he had injured himself by hitting his head against the wall, some hours before he had succeeded in killing himself. 30. On 12 March 2007 the applicant lodged an appeal against the Erzurum Administrative Court’s decision. On 15 December 2010 the Supreme Administrative Court quashed the decision and held that the file should be returned to the Erzurum Administrative Court for reconsideration. In its decision the Supreme Administrative Court also referred to the prison disciplinary board’s conclusion (see paragraph 21 above), and concluded that the decision adopted by that disciplinary board proved that the prison authorities had acted in breach of their duties by failing to ensure an adequate watch on Bilal Çoşelav, who had been suffering from psychological problems. It also held that the prison authorities’ failure to inform the family in a timely manner of the death of their son must have contributed to the family’s suffering. According to the information provided by the applicants, the Ministry of Justice requested a rectification of the Supreme Administrative Court’s decision and the examination of that request is still continuing before the Supreme Administrative Court. 31. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (which entered into force on 5 July 1967 and was repealed in 2006) stipulated that prisoners under the age of eighteen were to be kept separately from other prisoners. According to Article 106 of the Regulations, prisoners were to be given the opportunity to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”. 32. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules of 11 January 2006 (“the European Prison Rules”) includes in its basic principles: “... 11.1 Children under the age of 18 years should not be detained in a prison for adults, but in an establishment specially designed for the purpose. 11.2 If children are nevertheless exceptionally held in such a prison there shall be special regulations that take account of their status and needs. ... 35.1 Where exceptionally children under the age of 18 years are detained in a prison for adults the authorities shall ensure that, in addition to the services available to all prisoners, prisoners who are children have access to the social, psychological and educational services, religious care and recreational programmes or equivalents to them that are available to children in the community. ... 35.4 Where children are detained in a prison they shall be kept in a part of the prison that is separate from that used by adults unless it is considered that this is against the best interests of the child. ...” 33. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...” 34. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997 (CPT/Inf (99) 2 EN, publication date: 23 February 1999), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons”. 35. In a report on its visit to Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following: “[i]n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (‘the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities’) have apparently had little practical impact.” 36. The 1989 United Nations Convention on the Rights of the Child (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 1 of the UN Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” Article 3(i) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 (c) provides: “States Parties shall ensure that: (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” Article 40 provides in so far as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society. ...” 37. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child in respect of Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows: “65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period. 66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 39 and 40, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province...” 38. According to UNICEF, the juvenile justice system was in its infancy in Turkey in 2008. Judges were still learning about child-sensitive detention centres, alternative dispute resolution procedures and due process for children in conflict with the law.