The presence of a detained or convicted child in a penal institution does not remove the safeguards that arise from being a child. Education, security, health, family relations and access to a defense must be protected together. For families to prepare a correct application, they need to distinguish the measures in the criminal proceedings from the acts within the institution.
The difference between a detained child and a convicted child
Pretrial detention is not the execution of a final sentence. For a child under a criminal accusation, the presumption of innocence continues; the conditions of detention and options such as judicial control (adli kontrol) are assessed in the relevant criminal proceedings. For a convicted child, on the other hand, the enforcement regime of the final decision, the type of institution and the education plan take on separate importance.
Law No. 5395 is based on the child’s best interests and well-being, an approach suited to age and development, and measures restricting liberty and imprisonment being a last resort. This approach should be made concrete in the application; the child’s school situation, family support and personal circumstances should be explained. [1]
Not to be confused with a child staying in the institution with the mother
No sentence is being executed in respect of a young child who is with his or her mother. The detained and convicted children discussed here, by contrast, are persons against whom a criminal justice process is being conducted. The admission to the institution, representation and application needs of these two groups are not the same.
How is access to the assistance of defense counsel secured?
Under Article 150 of the Code of Criminal Procedure (CMK), defense counsel (müdafi) is appointed for a child suspect or defendant who has none, without a request being required. The family’s not being in a financial position to hire a lawyer cannot be a ground for depriving the child of defense assistance. Information from the family is useful; however, a parent does not take the place of defense counsel. [2]
The child’s views and sharing information with the family
The lawyer should take the child’s account in a manner suited to the child’s age and development, and explain the legal process in a way the child can understand. The scope of the information to be shared with the family is determined with regard to the child’s best interests, professional secrecy, representation and restrictions on the file. Where there is a possibility of domestic violence or a conflict of interest, giving all the information to the family may not be a safe solution.
In the first application, the family can convey the institution where the child is held, the child’s age, the investigation or case number, the date of the latest decision and the details of the existing defense counsel. Making the child memorize a detailed statement or steering his or her statement is not legal support. An urgent security need conveyed in the meeting should first be turned into a protective application.
How are the rights to education and development protected?
Continuity of the education record
The provisions of Law No. 5275 on education and rehabilitation should be read together with an institutional approach specific to children. [3] Without establishing the school enrollment, grade level, examination calendar, learning difficulty and special education needs, a general reply that “education is being provided” may not amount to an adequate assessment.
The application should state which course, enrollment or examination is being disrupted. Coordination between the institution’s education service and the relevant education unit may be requested. If an examination is imminent, the date and the application document should be attached, and the consequence of the delay, which is difficult to remedy, should be explained. The request for education should not wait for the outcome of a request for release.
Family relations and psychosocial support
Communication with the family is important for the child’s development and preparation for life after the institution. However, the procedures for visits and communication are examined according to the concrete institution and file circumstances. Where there is a risk of the child being harmed by the family, merely increasing the number of visits is not an adequate protective approach. The need for social services and a psychosocial assessment should be stated clearly in the application.
What should be done in case of suspected violence, threats or ill-treatment?
A concrete notice may be given to the institution’s administration and the relevant prosecutor’s office for the child’s safety. If there is an allegation of an offense, the request for a criminal investigation and the request for correcting the conditions in the institution should be followed separately. The opening of an administrative review does not by itself resolve whether a criminal investigation is necessary.
Records to be requested to be preserved
The date and place of the event, the known details of the persons concerned, examination and referral records, any existing camera footage and the application documents are important. Whether camera footage exists and how it is stored should be investigated; the relevant records should be requested to be preserved so that they are not lost. For documents the family cannot access, procurement is requested from the competent authority. It is not necessary to try to obtain records unlawfully.
Rather than the child being forced to recount the same event again and again, it is important that existing statements and expert assessments are used in due form. If there is an urgent health or security need, one should not simply wait for a reply to a petition; institutional intervention should be requested immediately.
What safeguards exist against a disciplinary decision?
The disciplinary rules concerning children are set out separately in Law No. 5275. It cannot be assumed that a sanction regulated for adults can be applied in the same way to a child. The conduct alleged in the act, the provision applied, the opportunity to defend, the reasoning of the decision and the date of notification should be examined.
Disciplinary and criminal liability are different
The same event may be the subject of both a disciplinary review and a criminal investigation. The purpose, evidence and route of decision of each process are assessed separately. Instead of merely saying “my child did not do it,” the family should show which finding is wrong and which record was not investigated. The effect of the child’s communication, health or developmental difficulty on the assessment of the conduct may also be explained.
What does the Constitutional Court’s F.E. and Others decision say?
The decision F.E. and Others, Application No. 2014/15586, January 23, 2019 concerns events and interventions in an institution where children were held. The Constitutional Court (AYM) held that the prohibition of ill-treatment had not been violated in its substantive limb; however, it found that the obligation to conduct an effective investigation had been violated with respect to the applicants other than H.B., whose examination was continuing. The application lapsed as regards M.K., and as regards H.B. no violation was found in the procedural limb either. [4]
Why are there two different results?
Whether ill-treatment can be established in substance in an event and whether the allegation has been adequately investigated are different questions. The decision cannot be reported as one in which all the claims of all the children were accepted. The conclusion that can be drawn for the family and the lawyer is the importance of concrete requests that will ensure the investigation of a security allegation and of objections to an incomplete investigation.
Preparing an application for families
| Document or information | Purpose of use |
|---|---|
| Institution, file and defense counsel details | Determining the competent authority and representation |
| Decision and notification record | Calculating the application route and the time limit |
| School and examination documents | Making the loss of education concrete |
| Health and incident records | Supporting the request for protection and review |
| Earlier petitions | Showing the administration’s knowledge and its replies |
Application time limits and follow-up of the file
Complaint to the enforcement judgeship and objection to the decision
A complaint against institutional decisions, acts or activities under Law No. 4675 is made within fifteen days from learning of them and in any case within thirty days from the date of the act. An objection route is provided against a decision of the enforcement judgeship (infaz hâkimliği) within two weeks from notification. The jurisdiction, the persons who may apply and the nature of the concrete act must be checked separately. In continuing situations or decisions of a different nature, the start of the period is examined separately; these general periods do not apply to every legal route. [5]
A complaint does not by itself stop the act. When the conditions in the law are met, a request for postponement or suspension must be explained separately on the grounds of consequences that are difficult to remedy and unlawfulness. It should not be assumed that submitting a petition to other authorities preserves these periods. The whole decision, the notification document and the earlier applications should be kept together.
Related articles: Rights of Children Staying with Their Mothers in Prison: Care, Nursery, Health and Application Routes; Detained and Convicted Prisoners with Disabilities in Prison: Accessibility, Care and Legal Protection; Suicide Risk and the Protection of Mental Health in Prison: Application Routes for Families.
Frequently asked questions
If the child says he or she does not want one, is defense counsel not appointed?
The safeguard of mandatory defense counsel for a child who has none does not depend only on the child’s making a request. The existing defense counsel and representation situation should be checked in the concrete file.
Is the end of the criminal case awaited for an education problem?
No. A current education need can be followed separately before the institution and the education units. The risk of delay should be shown clearly in the application.
Is an allegation of violence merely a disciplinary complaint?
No. If there is a suspicion of an offense, a prosecutor’s review, institutional measures for current security and judicial review of the institutional act may be assessed separately.
Sources
- Law No. 5395, Child Protection Law (Çocuk Koruma Kanunu), Art. 4.
- Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu), Art. 150.
- Law No. 5275 on the Execution of Sentences and Security Measures (Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun).
- Constitutional Court (AYM), F.E. and Others, Application No. 2014/15586, 23.01.2019.
- Law No. 4675 on Enforcement Judgeships (İnfaz Hâkimliği Kanunu), Arts. 4–6, the official UYAP legislation source.