THE FACTS

[7-23] 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 the 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. By the time when her individual application was under examination, she had been still placed in a women’s closed penitentiary institution where she was transferred.

 V. EXAMINATION AND GROUNDS

24. The Constitutional Court, at its session of 7 November 2019, examined the application and decided as follows:

A. The Applicant’s Allegations and the Ministry’s Observations

25. The applicant maintained that due to the dismissal of her request for the suspension of her prison sentence which had been imposed on her on account of offences committed on various dates, indeed her baby was punished; and that in its practices and decisions, the State should have taken into consideration primarily the best interests of children. She also noted that the State preferred to place the mother and her new-born baby suffering from a throat problem in prison instead of finding solutions so as to ensure the mother and the baby to live in a healthy environment; and that thereby, her baby was prevented from growing up in a healthy environment. She accordingly alleged that her right to respect for family life had been violated.

26. In its observations, the Ministry recalled the relevant legislation and the case-law of the European Court of Human Rights (“the ECHR”) on this matter. It stated that the decision issued by the incumbent chief public prosecutor’s office relied on the exception laid down in Article 16 § 5 of the Law no. 5275 on the Execution of Penalties and Security Measures (“Law no. 5275); and that the applicant had not surrendered herself for nearly 2 years by failing to comply with the decision suspending the imprisonment sentence previously imposed on her. In this sense, the Ministry stated that there was no violation in the applicant’s case as she was considered, pursuant to the relevant legislation, to pose a threat due to her acts and conducts, which should be found reasonable.

B. The Court’s Assessment

27. Article 20 § 1 of the Constitution, titled “Privacy of private life”, provides as follows:

 “Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated.”

32. Article 41 of the Constitution, titled “Protection of the family and children’s rights” reads as follows:

 “Family is the foundation of the Turkish society and based on the equality between the spouses.

 The State shall take the necessary measures and establish the necessary organisation to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.

 Every child has the right to protection and care and the right to have and maintain a personal and direct relation with his/her mother and father unless it is contrary to his/her high interests.

 The State shall take measures for the protection of the children against all kinds of abuse and violence.”

 29. It is clear that placing the children with their mothers in penitentiary institutions is a result of the positive obligation incumbent on the State to ensure that children grow up with their parents and is in essence intended for ensuring the maintenance of family relationship. In this context, also given that the complaints raised in the present case were related to the conditions ensured for the maintenance of the family relationship also in pursuit of the child’s best interest, the application was examined under the right to respect for private life.

 1. Admissibility

 30. The alleged violation of the right to respect for family life must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

 2. Merits

 a. General Principles

 31. The obligation imposed on the State by virtue of the right to respect for family life is not limited only to the avoidance of arbitrary interference with the right. In addition to this negative obligation, which is of priority, the right also embodies positive obligations for ensuring an effective respect for private life. These positive obligations entail taking of measures for ensuring respect for private life even if in the realm of interpersonal relations (see Murat Atılgan, no. 2013/9047, 7 May 2015, § 26).

 32. As regards the State’s obligation to take positive measures, Articles 20 and 41 of the Constitution entail the right to request for the taking of measures so as to ensure integration between the parent and his/her child as well as the obligation to take such measures that is incumbent on the public authorities. In Article 41 of the Constitution, it is explicitly laid down that unless being contrary to the child’s best interest, he shall have the right to establish and maintain a personal and direct relation with his mother and father (see Serpil Toros, no. 2013/6382, 9 March 2016).

 33. Moreover, the child’s interest, as worded in the Convention on Children’s Rights, and the child’s best interest, as worded in Article 41 of the Constitution, are a principle that is to be observed in all acts and actions performed by the courts, the administrative authorities and the legislative organ, which are of concern to the children. In this sense, in cases where an action to have an effect on the child will be performed, making an assessment as to whether this action is in the child’s best interest is of great importance for the fulfilment of the positive obligations inherent in the right to respect for family life.

 34. Unless being contrary to the child’s best interest, it is essential to ensure the right to establish and maintain a personal relationship with his mother and father. In this scope, as required by the principle of the child’s best interest, the public authorities are obliged to ensure the maintenance of the family relationship between the parent and the child on the one hand, and to take the measures so as to ensure the child to live in an environment where he could maintain his mental and physical improvement on the other. The relevant administration has indeed a wide margin of appreciation with respect to the practices in a penitentiary institution. However, it cannot be said that the above-mentioned obligation is not applicable to the children who are placed in penitentiary institutions together with their convicted mothers.

 35. On the other hand, what is in pursuit of the child’s best interest varies depending on the particular circumstances of every concrete case. However, it must be always borne in mind that the State has obligations to provide sound conditions for the children who are temporarily placed in penitentiary institutions. However, this obligation is not absolute, and the nature and scope of the measures to be taken in consideration of the particular circumstances of every case may vary. Besides, it must be taken into consideration that the person who is indeed convicted is the mother herself and therefore, the child’s best interest must be taken into account in the rules and orders associated with the mother’s penalty. Accordingly, it must be emphasised that the measures which would secure that the practices and conditions at the penitentiary institution would have the minimum effect on the child are to be taken.

 36. Besides, the public authorities are expected to strike a balance between the public interest in the actions and orders with respect to the convicted mother, and the child’s best interest, and to provide relevant and sufficient grounds to demonstrate that the child’s best interests have been considered. Moreover, given the development process of the children, it is of importance that the measures to be taken by the public authorities be capable of meeting the child’s needs in consideration of his age and that the relevant measures be applied swiftly so as to prevent any possible adverse effects of the conditions at the penitentiary institution on the child and his mother.

 b. Application of Principles to the Present Case

 37. In Article 16 § 4 of Law no. 5275 applied in the present case, it is set forth that “imprisonment sentence of the women who are pregnant or who gave birth 6 months ago at the most shall be postponed”, which clearly serves for the protection of both the woman and the child and aims at ensuring the child to be with his mother in a sound environment. Besides, this legal arrangement also envisages that the public interest pursued by placing a convicted mother in penitentiary institution be overridden, under certain circumstances, by the best interest of child.

 38. In the present case, it has been observed that the applicant is being placed in the penitentiary institution with her baby born on 12 February 2016 and her child born on 2 January 2014; that she requested to be granted a suspension of her imprisonment sentence 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 imprisonment sentence as well as her previous behaviours and conducts, the chief public prosecutor’s office dismissed her request, noting that she was 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.

 39. Besides, the public authorities found the ward’s capacity as well as physical conditions of the penitentiary institution unfit for children’s life and development. It has been therefore observed that 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. It has been further concluded that in the decisions associated with the convict’s sentence, the child’s best interest was not taken into consideration within the scope of the right to respect for family life; that no balance was struck between the applicant’s placement in a penitentiary institution and the child’s best interest; and that nor was any measure such as providing an appropriate environment for the child or transferring them to another institution with better conditions taken.

 40. For these reasons, the Court concluded that in the present case, the positive obligations inherent in the right to respect for family life were not fulfilled and accordingly found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution.

 3. Application of Article 50 of Code no. 6216

41. 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.”

42. In its judgment in the case of Mehmet Doğan ([Plenary], no. 2014/8875, 7 June 2018), the Court has indicated the general principles as to how a violation found would be redressed.

43. The applicant requested the Court to award her 50,000 Turkish liras (“TRY”).

44. It has been observed that the violation found by the Court in the present case resulted from the decision whereby the applicant’s request for suspension of the execution of her imprisonment sentence was dismissed by the Diyarbakır Chief Public Prosecutor’s Office.

45. In the present case, the Court found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution.

46. Regard being had to the fact that upon the interim measure indicated by the Constitutional Court, the applicant was transferred to another penitentiary institution fit for the baby, it has been concluded that there is no legal interest in conducting a retrial to redress the consequences of the violation of the right to respect for family life. On the other hand, a net amount of TRY 5,500 must be awarded to the applicant in compensation for non-pecuniary damage suffered by her for not being provided with the safeguards inherent in the right to respect for family life, and her other claims for compensation must be rejected.

47. The total court expense of TRY 2,714.50 including the court fee of TRY 239,50 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 7 November 2019:

 A. The alleged violation of the right to respect for family life be DECLARED ADMISSIBLE;

 B. The right to respect for family life safeguarded by Article 20 of the Constitution was VIOLATED;

 C. A net amount of TRY 5,500 be PAID to the applicant in compensation for non-pecuniary damage, and other claims for compensation be DISMISSED;

 D. The total expense of TRY 2.714.50 including the court fee of TRY 239.50 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 Ministry of Justice.