PARTLY DISSENTING OPINION OF JUDGE HARUTYUNYAN JOINED BY JUDGE PASTOR VILANOVA

The case concerns the tragic death of a young schoolboy after he was beaten by his classmates during a fight while the teacher had left the children in the classroom without supervision. The applicants alleged a violation of Article 2 of the Convention under its substantive and procedural limbs.

For the reasons set out below, I respectfully disagree with the majority’s finding that there has been no violation of Article 2 of the Convention in its substantive limb in the present case.

While there are a number of facts which remain unknown on account of the domestic authorities’ own failure in their duty to properly investigate the circumstances surrounding Derenik G.’s death (see paragraphs 63-66 of the judgment), we do know the following. While the form teacher was absent from the classroom, where the pupils had been seated for an examination, Derenik G. was subjected to violence. She was not near enough to hear the noise coming from the classroom and it was the janitor who first discovered what was happening. As was subsequently established by the forensic experts, Derenik G. had suffered an epileptic seizure that day. Furthermore, his death had been caused by the development of acute respiratory failure and cardiac function disorder because of the epileptic seizure possibly linked to the beating and to his emotional and psychological state. It was also established that the child had received several blows to the temple with a blunt object. This would probably not have happened in the presence of the teacher. Lastly, no nurse or physician had been available at the school premises to provide medical assistance to Derenik G. (see paragraphs 7-9, 13 and 30 of the judgment).

The majority’s assessment considered whether at the material time the school authorities knew or ought to have known that there was a real and immediate risk to Derenik G.’s life (the so-called “ Osman test” – see Osman v. the United Kingdom , 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII), a question which they answered in the negative on the facts as known. In particular, having regard to the fact that the school authorities were unaware of Derenik G.’s particular vulnerability due to his health, the majority concluded that the first limb of the Osman test, that is, the assessment of the risk, had not been met and there was therefore no need to examine whether any preventive measures ought to have been taken. In my view, however, the present case was not suitable for the application of that very stringent test given the particular context of the case, that is, having regard to the school authorities’ obligation to protect the health and well-being of pupils, in particular young children, who are especially vulnerable and are under the exclusive control of the authorities (see Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey , no. 19986/06, § 35, 10 April 2012), including their primary duty, as established in the Court’s case-law, to take supervisory measures to ensure the security of pupils and protect them from all forms of violence to which they might be subjected while under their supervision (see Kayak v. Turkey , no. 60444/08, § 59, 10 July 2012).

The majority focused mainly on the foreseeability of the risk to Derenik G.’s life and disregarded the primary responsibility of an educational establishment to perform its paramount duty to properly supervise the children while they are under its exclusive control. The performance of that duty requires an even higher level of diligence in the case of children of such a young age (compare and contrast Ercankan v. Turkey (dec.), no. 44312/12, § 51, 15 May 2018). I find that, in the circumstances of the present case, where the incident took place during class time inside the classroom, it could reasonably have been expected that the class teacher would be present in the classroom to supervise the pupils or to ensure that they were not left unattended for more than a few moments if she needed to leave .

I consider therefore that, in view of the relatively young age of Derenik G. and his classmates (around ten years old), leaving them unsupervised in the classroom could in itself have exposed them to a real and immediate risk to their life and well-being since their behaviour at that age could be unpredictable.

Although it is not disputed that the duration of the teacher’s absence from the classroom was not established, I find it particularly problematic that she had left the classroom for a period of time long enough for the children to be engaged in a fight which could have resulted in any child being subjected to violence, whether or not they had particular health problems. In particular, there is nothing to suggest that the teacher had left her classroom for a pressing reason. While death is normally unpredictable, a fight or an accident in a classroom is not.

As regards the issue of the lack of medical assistance for Derenik G. on the day of the incident, I note that indeed it was not established that it would have been possible to save Derenik G.’s life had he received timely first aid from a qualified medical worker. While in my view the obligation to ensure the safety and security of pupils can in no way be interpreted as requiring the permanent presence of medical personnel on the school premises, I nevertheless note that under domestic law, the school appears to have had an obligation to ensure that medical assistance was available to the pupils in order to maintain their health (see paragraph 41 of the judgment). Instead, it was the janitor and then the teachers of the school who tried to help Derenik G. to regain consciousness by slapping his face, performing artificial respiration, sprinkling water on him and trying to draw out his tongue. In any event, it was not disputed by the Government that there was such an obligation on the school authorities. Nor did they argue that the relevant members of the staff had the requisite training to provide emergency first aid.

In sum, I consider that in the specific circumstances of the instant case, the duty to supervise the pupils under the care of the school was not properly fulfilled. The school authorities did not display the required level of diligence to prevent the occurrence of violence during class time and failed in their obligation to provide medical assistance. The school authorities therefore failed to comply with their positive obligations under Article 2 of the Convention.