Individual Application

The Facts

The applicant, a convict serving her sentence in a penitentiary institution with her two children, submitted a petition to the incumbent chief public prosecutor’s office for being granted a suspension of execution of her sentence in order to take care of her baby born on 12 February 2016. The chief public prosecutor’s office dismissed her request. The applicant’s challenge against the dismissal decision was also rejected by the relevant assize court.

Pending the examination by the Court of the applicant’s request for an interim measure, the penitentiary institution issued a letter to the effect that the wards were not suitable for the children’s life and development. By its interim decision of 28 June 2016, the Court indicated an interim measure in favour of the applicant and accordingly ordered necessary steps to be taken for elimination of the threat to the physical and psychological integrity of both the applicant and her children. Besides, the Administrative and Supervisory Board of the Penitentiary Institution decided, by virtue of the interim measure indicated by the Court, to transfer the applicant to another penitentiary institution fit for the applicant and her children. She has been still placed in a women’s closed prison where she was transferred.

The Applicants’ Allegations

The applicant maintained that her right to respect for family life had been violated due to dismissal of her request for a suspension of execution of her sentence for having a baby.

The Court’s Assessment

It is evident that Article 16 § 4 –setting forth that “the execution of the prison sentence against a woman who is pregnant or who gave birth less than six months ago shall be postponed” – of the Law no. 5275 on the Execution of Penalties and Security Measures, which applied in the present case, serves for protecting both the woman and the child and is intended for ensuring the baby to be with the mother in a sound environment. Besides, this legal arrangement also ensures that the public interest pursued by placing a convicted mother in penitentiary institution be overridden, under certain circumstances, by the best interest of child.  

In the present case, the applicant requested to be granted a suspension of execution on account of the baby’s need of care and unfit conditions of the penitentiary institution. Considering the term during which the applicant served her sentence as well as her previous behaviours and conducts, the chief public prosecutor’s office dismissed her request noting that she was to be considered as a dangerous convict. However, in dismissing the request, the chief public prosecutor’s office failed to provide any sufficient ground so as to indicate why the applicant, convicted of aggravated theft, was categorized as a convict posing a threat.  Moreover, her request was not assessed in consideration of the baby’s living conditions and needs, and the provisions applicable merely to the convicted mother were relied on in the dismissal decision.

Besides, the public authorities found the ward’s capacity as well as physical condition of the penitentiary institution unfit for children’s lives and development. Therefore, the child of the applicant whose request for a suspension of execution had been nevertheless dismissed was deprived of a sound environment fit for his age and needs.

In addition, no balance was struck between the applicant’s placement in a penitentiary institution and the child’s best interest. Nor was any measure such as providing an appropriate environment for the child or transferring them to another institution with better conditions taken.  In the present case, the positive obligations inherent in the right to respect for family life were not fulfilled.

Consequently, the Court has found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution as well as awarded compensation to the applicant.

There is no legal interest in conducting a retrial in order to eliminate the consequences of the violation in question as the applicant was transferred, upon the interim measure indicated by the Court, to another penitentiary institution which is fit for the baby.  The applicant has been awarded compensation as she was not afforded the safeguards inherent in the right to respect for family life.