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issued by the Registrar of the Court   ECHR 281 (2016)   13.09.2016   The requirement for a minor in prison to file a complaint before starting   criminal proceedings was contrary to the Convention   In today’s Chamber judgment1 in the case of A.Ş. v. Turkey (application no. 58271/10) the European   Court of Human Rights held, unanimously, that there had been:   a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European   Convention on Human Rights on account of the physical violence to which the applicant had been   subjected.   The case concerned the sexual assault and physical violence to which the applicant was subjected   while in pre-trial detention in Maltepe young offenders’ prison in Istanbul, and the lawfulness and   duration of that detention.   With regard to the assaults on the applicant, who had been a minor and in detention at the time of   the events, the Court concluded that, by requiring the applicant to lodge a formal complaint as a   prerequisite for instituting criminal proceedings, without taking account of his particular   vulnerability, Turkish criminal law, although it criminalised attacks on persons’ physical integrity of   the kind complained of, had in the present case rendered ineffective the legal enforcement   measures designed to protect individuals against treatment contrary to Article 3 of the Convention.   The Court also held that, in the context of their duty to supervise persons in detention and prevent   them from being subjected to bodily harm, the authorities had not failed in their positive obligation   to protect the applicant’s physical integrity.   As to the complaint concerning the allegedly excessive length of the applicant’s pre-trial detention,   the Court considered that the applicant should have applied to the domestic courts for   compensation on the basis of Article 141 § 1 (d) of the Code of Criminal Procedure.   Principal facts   The applicant, Mr A.Ş., is a Turkish national who was born in 1995 and lives in İstanbul (Turkey).   At the age of thirteen and a half, A.Ş. was accused of sexually assaulting a child of eight on 6 June   2008. In view of the offence of which he was suspected, the Youth Assize Court of Üsküdar decided   to remand him in custody on 18 February 2010. On 10 May 2010 it found him guilty of attempted   rape causing bodily harm to the victim, and sentenced him to five years and ten months in prison   without suspension.   The judgment was quashed by the Court of Cassation and A.Ş. was therefore released on   May 2011. However, he was again sentenced after a retrial to the same prison term as that handed   down by the first trial court. A.Ş. appealed on points of law against that decision and the case is still   pending. In February 2011 he was charged with illegal restraint in connection with the same events   of 6 June 2008, and was found guilty in 2012. An appeal against that judgment is also pending.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   On 27 and 31 March 2010, while he was in pre-trial detention, placed in a dormitory for juveniles   who had committed similar sexual offences, A.Ş., then fifteen, was the victim of sexual assault by   one of the other detainees, M.B., aged seventeen. He was also beaten up by three other detainees   because he had not reported the assault by M.B.   The prison authorities, alerted to the events when the emergency call button in the dormitory was   activated, took disciplinary action against M.B. and the three other assailants by placing them in   solitary confinement. A medical examination of the victim found bruising around the anus and   buttocks and traces of blows to the legs. The prison authorities also informed the Kartal public   prosecutor that A.Ş. wished to file a complaint against his assailants. However, on 14 April 2010 the   public prosecutor discontinued the proceedings against the three assailants on the ground that   prosecution of the offence complained of depended on a complaint by the victim and that the latter,   who had been able to defend himself both physically and mentally, had stated that he no longer   wished to file a complaint.   M.B. was charged by the Üsküdar public prosecutor with aggravated sexual assault and illegal   restraint. On 24 May 2012 he was sentenced to eight years and nine months’ imprisonment.   Complaints, procedure and composition of the Court   Relying on Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading   treatment), the applicant alleged that he had been physically and sexually assaulted by other   inmates while he was in custody and under the responsibility of the State. He accused the State of   failing in its duty to protect persons under its supervision.   Under Article 5 §§ 1 and 3 (right to liberty and security), 5 § 4 (right to a speedy decision on the   lawfulness of detention) and 5 § 5 (right to compensation) the applicant complained that he had   been placed in pre-trial detention unfairly and for a lengthy period. He also challenged the Assize   Court’s decision not to suspend his sentence.   The application was lodged with the European Court of Human Rights on 21 September 2010.   Judgment was given by a Chamber of seven judges, composed as follows:   Julia Laffranque (Estonia), President,   Işıl Karakaş (Turkey),   Nebojša Vučinić (Montenegro),   Valeriu Griţco (the Republic of Moldova),   Ksenija Turković (Croatia),   Jon Fridrik Kjølbro (Denmark),   Georges Ravarani (Luxembourg),   and also Hasan Bakırcı, Deputy Section Registrar.   Decision of the Court   Article 3   Noting that in the present case the attacks to which A.Ş. had been subjected in detention had been   of an inhuman and degrading nature, the Court examined whether the authorities had complied   with their positive obligations under Article 3.   With regard to the sexual assault, the Court noted that the prison authorities had opened an internal   investigation as soon as they had become aware of the events, that A.Ş. had been taken to hospital   immediately to undergo a medical examination, that statements had been taken from all those   involved and that disciplinary action had been taken against A.Ş.’s assailant. The prison authorities   had subsequently informed the public prosecutor of the incident and the latter had instituted an   investigation which had resulted in the prosecution of A.Ş.’s assailant, who had been tried and   sentenced to eight years and nine months’ imprisonment. The Court considered that the domestic   law had afforded A.Ş. effective and sufficient protection against the infringement of his physical   integrity linked to the sexual assault.   As to the physical assault, the Court noted that when questioned by the public prosecutor, A.Ş. had   stated that he did not wish to file a complaint. The prosecutor had therefore discontinued the   proceedings on the ground that if the acts complained of constituted an offence a prosecution could   only be brought on the basis of a formal complaint by the victim.   The Court observed that when the acts complained of were committed A.Ş. had been in detention   and hence under the supervision and responsibility of the prison authorities. The Court reiterated   that prisoners were in a vulnerable situation and that the authorities had a duty to protect them.   Moreover, A.Ş. had been a minor at the time of the events. The Court stressed that minors were   inherently more vulnerable than adults.   The Court also noted that, under Article 86 § 3 of the Criminal Code, the filing of a complaint was not   a requirement where the victim of an assault was a person not capable of defending him or herself.   The Court observed that this provision did not specifically cover minors in detention. In the present   case, as the report by the forensic medical institute had found that A.Ş. had been able to defend   himself both physical and mentally, the public prosecutor had taken the view that he did not fall into   the category of victims covered by Article 86 § 3.   By requiring the applicant to lodge a formal complaint as a prerequisite for the bringing of criminal   proceedings, without taking into account his particular vulnerability, Turkish criminal law had in the   present case rendered ineffective the legal enforcement measures designed to protect individuals   against treatment contrary to Article 3 of the Convention. The Court therefore found a violation of   that provision.   As to the conduct of the prison authorities, it could not be said, in the Court’s view, that they should   have known that A.Ş. was at risk of being subjected to treatment contrary to Article 3 of the   Convention by his fellow inmates. The Court also stressed that as soon as the prison authorities had   learned of the assaults on A.Ş., the prison guards had intervened and placed A.Ş. in a different   dormitory in order to prevent a repetition of the treatment complained of.   The Court concluded that the authorities had not failed in their positive obligation to protect the   applicant’s physical integrity in the context of their duty to supervise persons deprived of their   liberty and to prevent them from being subjected to bodily harm.   Article 5   In so far as A.Ş. complained of having been placed unfairly in pre-trial detention, the Court noted   that he had been remanded in custody on 18 February 2010. However, as A.Ş. had not appealed   against the decision in question, he had been required to submit his application within six months of   that decision. As the present application had been lodged on 21 September 2010, this complaint was   rejected by the Court as being out of time.   With regard to the allegedly excessive length of the applicant’s pre-trial detention, the Court noted   that at the time the application was lodged A.Ş. had not had an effective remedy by which to obtain   compensation for excessively lengthy pre-trial detention, as no such remedy had been available until   the proceedings had been concluded. However, the Court considered that, following a change in the   case-law in June 2015, a legal rule had existed allowing the applicant to give the national courts the   opportunity to redress the alleged breach of Article 5 § 3 of the Convention. The Court considered   that A.Ş. should have applied to the domestic courts for compensation under Article 141 § 1 (d) of   the Code of Criminal Procedure. His complaint therefore had to be dismissed for failure to exhaust   domestic remedies.   Just satisfaction (Article 41)   The Court held that Turkey was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary   damage. It rejected the claim for reimbursement of costs and expenses as the applicant had not   demonstrated, on the basis of the relevant supporting documents, that these had been actually and   necessarily incurred and were reasonable as to quantum.   The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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