THE FACTS

[7-27] The applicant is the mother of E.N., a 15 year-old minor who was detained on remand for having committed a theft.

E.N., who had taken two money-boxes including coins from a tea house, was brought before the magistrate judge that ultimately ordered his detention on remand. The challenge against his detention was dismissed.

A criminal case was brought against E.N.. The incumbent juvenile court ordered his continued detention. Shortly after this decision, E.N. committed suicide at the juvenile wing of the prison. The incumbent court then discontinued the proceedings on account of E.N.’s death.

The applicant lodged an individual application with the Court on 7 December 2015.

 V. EXAMINATION AND GROUNDS

28. The Constitutional Court, at its session of 17 July 2019, examined the application and decided as follows:

A. The Applicant’s Allegations

29. The applicant maintained that her son’s detention had been ordered despite being a minor, which had been neither taken into consideration and nor discussed; that there were no reasons justifying his detention; that the authorities fell foul of the principle to the effect that detention must be used as a measure of last resort; that the social study report, which demonstrated the psychological problems suffered by her son, had not been taken into consideration; and that despite her son’s psychological problems, his continued detention had been ordered for stereotyped reasons. She accordingly alleged that the right to personal liberty and security had been violated.

30. In its observations, the Ministry indicated that the present application was unlike the cases which were filed by the applicants themselves but pursued by their next-of-kin upon their death; that according to the application form, the applicant did not claim any personal damage due to the alleged violations; that the complaints under Article 5 had been raised on behalf of her deceased son E.N.; and that there was no evidence in the case-file which would lead to the conclusion that the applicant had suffered a damage as a result of E.N.’s detention or the other actions performed. The Ministry accordingly noted that the application must be declared inadmissible.

B. The Court’s Assessment

31. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, in so far as relevant provides as follows:

 “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

32. Article 19 § 1 and the first sentence of Article 19 § 3 of the Constitution, titled “Right to personal liberty and security” read as follows:

 “Everyone has the right to personal liberty and security.

 (…)

 Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.”

 33. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In this sense, as it has been observed that the applicant’s allegations are in essence related to the unlawfulness of the impugned detention, her complaints must be examined from the standpoint of Article 19 § 3 of the Constitution. The Court did not find it necessary to make a separate examination as to the applicant’s allegation that the decision ordering continued detention had been notified in the absence of a lawyer and an expert caseworker.

 1. Admissibility

 34. By the very nature of the right to life, an application under this right with respect to a person who has lost his life can only be made by the relatives of the deceased, who have the victim status (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 41).

 35. While the individuals who are able to operate the individual application remedy are essentially those who directly have the victim status, the individuals who have a personal or special relationship directly with the victim, and accordingly have been affected by the alleged violation of the Constitution and the Convention or have a legitimate and personal interest in the elimination of the said violation may also lodge an individual application in their capacity as “indirect victims”, by the particular circumstances of every concrete case and the nature of the violated right (see Engin Gök and Others, no. 2013/3955, 14 April 2016, § 53).

 36. However, the question whether the “indirect victim status” arises may vary according to the particular circumstances of the case and to the nature of the violated right. As a matter of fact, in certain cases where the victim cannot lodge an application in person and there is a close relationship –especially in cases involving an alleged violation of the right to life-, the Constitutional Court has held that the applicants who are not directly affected by the alleged violation may lodge an application on their own behalf for having been indirectly affected by the alleged violation in question (see Sadık Koçak and Others, no. 2013/841 , 23 January 2014; and Rıfat Bakır and Others, no. 2013/2782, 11 March 2015).

 37. However, it must be discussed whether the indirect victim status arises in the context of the right to personal liberty and security which is a personal and inalienable right. In principle, the next-of-kin or spouses do not have victim status in case of alleged violations of the rights which are not closely related to the victim’s death or disappearance. It must be nevertheless noted that in cases where the impugned measure allegedly giving rise to the violation of the right to personal liberty and security is closely associated with the complaint under the right to life -on condition of being independent from the essence of the complaint raised under the right to life-, the next-of-kin and spouses may lodge an individual application.

 38. In the present case, the applicant is the legal representative of her son on behalf of whom the application has been lodged. The applicant’s son committed suicide in a prison while being under the State supervision and control. In the application form included in the case-file concerning the right to life (no. 2016/78494), the applicant maintained that her son should have received psychological treatment as recommended in the social services report; that the witness’ statements also confirmed the psychological problems suffered by her son; and that however, any preventive action had not been taken so as to prevent his suicide for which the prison administration was responsible. Regard being had to all these considerations as a whole, it has been concluded that irrespective of the conclusion to be reached with respect to the right to life, the applicant’s complaint as to the unlawfulness of her son’s detention was closely associated with the complaint concerning the right to life. In this sense, it must be accepted that the applicant had the capacity to lodge an application.

 2. Merits

 a. General Principles

 39. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, certain circumstances under which individuals may be deprived of liberty are set forth, provided that the conditions of detention must be prescribed by law. (see Murat Narman, no. 2012/1137, 2 July 2013, § 42).

 40. It is therefore necessary to determine whether an impugned detention, as an interference with the right to life and security, complies with the requirements enshrined in Article 13 of the Constitution and applicable to the present case; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53 and 54).

 41. Accordingly, detention measure can be applied only for individuals against whom there is a strong indication of guilt. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, the accusation needs to be supported with convincing evidence likely to be regarded as strong. (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 72).

 42. Besides, it is set forth in Article 19 § 3 of the Constitution that a detention order may be issued for the purposes of preventing the risk of fleeing or destroying or altering the evidence. Pursuant to Article 100 of Code of Criminal Procedure no. 5271 (“Code no. 5271”), a detention order may be issued if the suspect or accused flees, absconds, or there exists concrete evidence causing suspicion in this respect, and if his behaviours cause strong suspicion that he attempts to destroy, conceal or alter the evidence or to exercise pressure on the witnesses, victims or others. This Article also provides a list of offences for which there is a statutory presumption of the existence of grounds for detention. The same provision also embodies a list of the offences that are ipso facto presumed as a ground for detention, provided that there exists a strong suspicion of criminal guilt (see Halas Aslan, §§ 58 and 59).

 43. It is also set out in Article 13 of the Constitution that the restrictions on fundamental rights and freedoms cannot be contrary to the “principle of proportionality”. In this sense, detention must be proportionate to the gravity of the imputed offence and the severity of the sanction to be imposed (see Halas Aslan, § 72).

 44. In every concrete case, it falls in the first place upon the judicial authorities ordering detention to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations (see Gülser Yıldırım (2), [Plenary], no. 2016/40170, 16 November 2017, § 123). However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 79; and Gülser Yıldırım (2), § 124).

 45. Lastly, as regards the detention of minors, it must be taken into consideration in the light of the relevant international conventions and instruments (see Furkan Omurtag, §§ 30-40) that detention is a measure of last resort in respect of minors, and if it is inevitable to have recourse to this measure, it must be discontinued in the shortest time possible. Nevertheless, this principle cannot be construed to the effect that the minors can in no way be detained. As also underlined in a Recommendation adopted by the Committee of Ministers of the Council of Europe addressed to the member states, detention measure may be applied in exceptional cases where minors who are of relatively older age have committed very serious offences (see Furkan Omurtag, § 82).

 b. Application of Principles to the Present Case

 46. The applicant’s son was detained on remand under Article 100 of Code no. 5271. In this sense, it appears that the impugned interference with the right to personal liberty and security had a legal basis.

 47. In the impugned incident giving rise to the detention of the applicant’s son, according to the findings of the investigation authorities, her son’s fingerprints were found at the incident scene, and the suspects including her son stole money amounting to 250 Turkish liras (“TRY”) from the complainant’s workplace upon which they had trespassed at night by kicking the door. Her son confessed to committing the imputed offence both in his statement and questioning. It accordingly appears that in the present case, there is strong suspicion that the applicant’s son committed the imputed offence.

 48. In the present case, the court issuing the detention order referred to the nature of the criminal act of theft, the minimum and maximum lengths of sentence corresponding to this act, the inability of collecting the evidence yet, the risk of fleeing given the probable sentence to be imposed at the end of the proceedings and the nature of the imputed act as a catalogue offence as laid down in Article 100 § 3 of Code no. 5271. The criminal act of theft for which E.N.’s detention was ordered is among the offences corresponding to severe criminal sanctions in the Turkish legal system, and the severity of the penalty envisaged in the law for the imputed offence is one of the issues pointing to the risk of fleeing (in the same vein, see Hüseyin Burçak, no. 2014/474, 3 February 2016, § 61; and Devran Duran [Plenary], no. 2014/10405, 25 May 2017, § 66). Besides, the imputed offence is among the offences regarding which the ground for detention may be deemed to exist ipso facto under Article 100 § 3 of Code no. 5271. Therefore, it has been considered that the grounds for detention relied on in the case of the applicant’s son had factual basis.

 49. Lastly, it must be ascertained whether his detention was proportionate. In determining whether a given detention is proportionate within the scope of Articles 13 and 19 of the Constitution, the particular circumstances of every concrete case must be taken into consideration. In this sense, it must be also considered that the applicant’s son was a minor.

 50. As regards the detention of minors, it is specified in Law no. 5395 that this measure must be used only as a last resort. Notably pursuant to Article 20 of Law no. 5395, a minor’s detention may be ordered only when the conditional bail measures have remained or appear to remain inconclusive or when these measures have not been complied with. It has been inferred from this provision that a measure of conditional bail should have been applied in the present case. As a matter of fact, in order to reach the conclusion that such measure has remained, or appear to remain, inconclusive or it has not been complied with, this measure must have been primarily applied.

 51. In the present case, it has been observed that the detention order issued with respect to the applicant’s son included no assessment to the effect that he was a minor. Therefore, it cannot be said that in ordering the detention of the applicant’s son, the principles laid down in the relevant international conventions and instruments were observed; and that the age of the applicant’s son were taken into consideration while indicating that the preventive measures other than detention would have been insufficient. The grounds relied on by the magistrate judge in the detention order were not capable of demonstrating that the detention in the present case had been used as a last resort, notably as required in the domestic law, given the age of the applicant’s son. Besides, it cannot be said that the judge ordering the detention of the applicant’s son had indeed considered the measures other than detention. It cannot be therefore concluded that the impugned detention was proportionate.

 52. For these reasons, the Court found a violation of Article 19 § 3 of the Constitution.

 3. Application of Article 50 of Code no. 6216

 53. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

54. The applicant claimed TRY 33,000 in respect of non-pecuniary compensation.

55. In the present case, the Court found a violation of the right to personal liberty and security.

56. The applicant must be awarded a net amount of TRY 27,500 in respect of the non-pecuniary damage which could not be redressed by merely the finding of a violation.

57. For the Constitutional Court to award pecuniary compensation, a causal link must be established between the material damage alleged to be suffered by the applicant and the established violation. Therefore, the applicant’s claim for pecuniary compensation must be rejected as she did not submit any document on this matter.

58. The total court expense of TRY 2,701.90 including the court fee of TRY 226,90 and counsel fee of TRY 2,475, which is calculated over the documents in the case file, must be reimbursed to the applicant.

 VI. JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 17 July 2019 that

 A. The alleged unlawfulness of the detention be DECLARED ADMISSIBLE;

 B. The right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution was VIOLATED due to the unlawfulness of the detention.

 C. A net amount of TRY 27,500 be PAID to the applicant in compensation for non-pecuniary damage, and the other claims for compensation be DISMISSED;

 D. The total expense of TRY 2.701.90 including the court fee of TRY 226.90 and the counsel fee of TRY 2,475 be REIMBURSED TO THE APPLICANT;

 E. The payments be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date;

 F. A copy of the judgment be SENT to the Trabzon Juvenile Court (E.2015/278) for information.

 G. A copy of the judgment be SENT to the Ministry of Justice.