Information Note on the Court’s case-law 219

June 2018

Ercankan v. Turkey (dec.) - 44312/12

Decision 15.5.2018 [Section II]

Article 2

Positive obligations

Article 2-1

Life

Failure to promptly inform parents of adolescent, later found drowned due to own reckless conduct, of his absence from school: inadmissible

Facts – The applicants’ fifteen-year-old son skipped school with two other students to go swimming at a nearby dam. He climbed over a bridge enclosed by metal railings, jumped into the river and drowned.

His father filed two criminal complaints, firstly, against a number of teachers at the high school, accusing them of failing to promptly notify him of his son’s absence from school and, secondly, against the relevant authorities arguing that they had not taken the necessary safety measures to prevent access to the dam. The public prosecutor decided not to prosecute the teachers or the State officials. T he appeal against this decision was dismissed.

Law – Article 2

(a) Alleged ineffectiveness of the judicial response in the aftermath of the death – There was no appearance of arbitrariness or other shortcomings in the conduct of the prosecution authoriti es’ investigation that would cast doubt upon its effectiveness. Although the case did not involve an intentional infringement of the right to life, the applicants had not brought a civil or administrative action in addition to the criminal remedies that th ey had pursued against the relevant State authorities. However, those avenues could have offered them redress independent of the findings in criminal proceedings.

(b) Alleged failure of the State authorities to safeguard the applicants’ son’s right to life – Although there was no specific regulatory framework at the material time, the relevant authorities had taken the necessary measures that could have been reasonably expected of them in the circumstances to prevent access to the dam and irrigation channel and to warn against the dangers of swimming there. Warning signs were placed along the banks of the river and on the two sides of the bridge where the incident had oc curred. Moreover, the top and sides of the bridge were enclosed with iron railings and the dam itself was surrounded with wire fencing to impede entry. Concrete safety barriers were also installed alongside the parts of the channel that adjoined public roa ds. Noting in particular that the applicants’ son had not fallen into the water accidentally but willfully ignored the safety measures, there was no reason to depart from the public prosecutor’s finding that the applicants’ son had lost his life as a resul t of his own imprudent conduct and that the State authorities could not be held responsible for his death.

The applicants’ complaint against the school authorities did not concern a deficiency in the regulatory framework pertaining to the protection of st udents’ safety at schools. The tragic event had taken place outside the school premises, that is, when he had technically been outside the school’s exclusive control. A particular degree of vulnerability would need to be demonstrated, such as a young age, in order to impose on the school authorities a stringent requirement to immediately notify parents of a student’s absence. The Court did not exclude the fact that there might be other circumstances where special attention and measures could be required on account of the special needs of a minor student, such as a mental or physical disability, or owing to other factors, such as extreme weather conditions or specific security threats, which could render the student particularly vulnerable outside the school premises regardless of his or her actual age.

The applicants had not demonstrated that their son suffered from any particular vulnerability that the school authorities knew or ought to have known about that would have required them to take immediate actio n upon noticing his absence. Nor had they mentioned any specific threats outside the school premises that would have exposed him to a real and immediate risk. Although the applicants’ son was still legally a child at the time of the events and, therefore, enjoyed all the rights and protection accorded to children, the level of diligence required to protect children from harm had to be necessarily adjusted as they grew older and reached adolescence, and began to exercise increasing levels of responsibility i n keeping with their evolving capacities. In the absence of any special factors, the Court considered it difficult to maintain that the failure of school authorities to inform parents immediately of the unauthorised absence from school of a fifteen-year-ol d high school student could be automatically presumed to have the effect of compromising the student’s safety and thus engaging the school’s responsibility within the meaning of Article 2 of the Convention. In those circumstances, the applicants’ complaint s against the school authorities remained unsubstantiated and unfounded.

Conclusion : inadmissible (manifestly ill-founded).

(See also Bône v. France (déc.), 69869/01, 1 March 2005, Information Note 73 ; Molie v. Romania (dec.), 13754/02 , 1 September 2009; Koseva v. Bulgaria (dec.), 6414/02 , 22 June 2010; Gökdemir v. Turk ey (dec.), 66309/09 , 19 May 2015; İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , 19986/06 , 10 April 2012; and Kayak v. Turkey , 60444/08, 10 July 2012, Information Note 154 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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