Individual Application

The Facts

The applicant is the mother of the dead baby. On 18 August 2004, the applicant’s husband, O.Y., applied to the police station, maintaining that he had found a baby in front of their home and he had not seen the person abandoning the baby. The baby was placed in a Children’s Home and Orphanage (“Children’s Home”) on the very same day. The authorities of the Department of Social Services (“Department”) named her as R.G.. Nearly five months thereafter, R.G. was found death in a waterhole outside the building of the Children’s Home. The autopsy conducted into the incident revealed that R.G.’s death had been caused by cerebral haemorrhage resulting from head trauma.

The chief public prosecutor’s office, conducting an investigation into the incident, concluded that R.G. had been thrown from the balcony by H.A., who was also placed in the Children’s Home and among the children at the ages of 12-15 with moderate mental retardation. The chief public prosecutor’s office concluded that H.A., who was -according to the forensic reports issued with respect to him- unable to comprehend the legal qualification and consequences of his act and lacked sufficient capacity to regulate his conducts, had no criminal liability. It accordingly issued a decision of non-prosecution with respect to H.A. and the baby’s carer, F.O.. The full-remedy action brought by the applicant and his husband and their claims for compensation were dismissed by the administrative court. On appeal, the first instance decision was upheld by the Council of State.

The Applicant’s Allegations

The applicant maintained that there had been a violation of the right to life on the ground that her baby placed in the Children’s Home had died due to the authorities’ failure to take the necessary measures for the protection of her life and that the full-remedy action brought for the redress of the damage resulting from the impugned death had been dismissed as no non-pecuniary damage had been sustained. 

The Court’s Assessment

In the present case, according to the applicant’s own statement, she abandoned her baby in front of their home. Her husband then reported the security forces that the baby belonged to any other person. Accordingly, the baby was then placed in the Children’s Home. However, in the full-remedy action she brought, the applicant maintained that they could not directly deliver their baby to the Children’s Home, despite having financial difficulties, for the fear of being condemned and due to certain social bias. Regard being had to this allegation raised by the applicant, to the fact that the dead baby had been given birth by her and to the period having elapsed from the baby’s date of birth and death, it is obvious that the applicant was the indirect victim of the impugned death. Although the fault on the part of the administration was found established by the inferior courts, the applicant’s victim status was not removed as she was not awarded any compensation.

The information and documents obtained through both the criminal investigation conducted by the chief public prosecutor’s office and the administrative investigation have revealed that the authorities of the Children’s Home had been aware that H.A. had been suffering from moderate mental retardation and his access to infant unit had been inconvenient. In this sense, despite the letter submitted by nurse Ö.T. to the administration of the Children’s Home where it was noted that H.A.’s allowed access to the infant unit was prejudicial, no measure was taken to that end. Besides, as demonstrated by certain statements taken during the investigation, H.A. had previously slapped a baby in the face and tried to choke several babies.

Letters were exchanged by the Children’s Home for the transfer of H.A. to a rehabilitation centre. Moreover, the Directorate General of the Social Services and Children Protection Agency had asked the Department to ensure H.A.’s receiving treatment in a private rehabilitation centre as the relevant centres had been operating over capacity. This was not also ensured.

Besides, although some of those heard during the investigation into the incident stated that door locks at the infant unit had been changed and there had been therefore no key, the statements of Ö.T. and foster-mother M.S. taken within the scope of the administrative investigation revealed that the keys of the infant unit had been in the possession of F.O., who was responsible for taking care of R.G.. It has been accordingly concluded that the authorities of the Children’s Home failed to fulfil their obligation to ensure the welfare of the applicant’s next-of-kin, who was under their care and supervision. Besides, this failure was found established also by the inferior courts.

The inferior courts determined the liability on the part of the administration in the impugned death but dismissed the applicant’s claim for compensation for non-pecuniary damage in disregard of her indirect victim status. In other words, the judicial process conducted by the inferior courts did not effectively operate in practice despite the positive obligations incumbent on the State by virtue of the right to life.

The applicant claimed compensation also for pecuniary damage resulting from her child’s death. However, she had not indeed claimed no pecuniary compensation in her full-remedy action. Nor did she mention any issue precluding her from claiming compensation for pecuniary damage while lodging an individual application with the Court. Besides, contrary to what she had asserted, it was not arbitrary for the administrative court to dismiss her claim for compensation for pecuniary damage on the ground that to raise a claim for compensation for pecuniary damage through a petition of correction was within the scope of the prohibition of extension of claims. In this sense, the dismissal of her claim for compensation for pecuniary damage did not lead to a violation.

Consequently, the Court has found a violation of the right to life.