SECOND SECTION
DECISION
Application no. 44312/12
Mehmet ERCANKAN and Muazzez ERCANKAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 15 May 2018 as a Chamber composed of:
Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 22 May 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Mehmet Ercankan and Ms Muazzez Ercankan, are Turkish nationals who were born in 1970 and 1973 respectively and live in Antalya. They were represented before the Court by Mr A. Mat, a lawyer practising in Antalya.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On the morning of 15 March 2010 the applicants’ fifteen-year-old son Mesut Ercankan, a student at the Metin Çiviler Public High School in Antalya (“the high school”), left home and went to school. However, after the second class, he decided to skip school with two other students, H.Y. and Z.G., to go swimming at a nearby dam constructed over the Düden river, which served as an irrigation channel. It appears that once they reached the dam, Mesut and Z.G. climbed over a bridge enclosed by metal railings and jumped into the water, but Mesut never resurfaced. H.Y. and Z.G. notified his family and the police, and a search was immediately initiated to find him. The rescue efforts were impeded by the fast flowing water, and Mesut’s body could not be found.
5. The Antalya public prosecutor’s office (“the prosecutor’s office”) initiated an investigation into the incident without delay. The scene was examined and photographed the very same day. Photographs were also taken around the dam and along the Düden river in order to document the safety measures taken by the authorities to prevent people swimming in the water.
6. On 15 and 18 March 2010 the police questioned Z.G. and H.Y., who mainly told them that after Mesut and Z.G. had jumped into the water, Mesut had never come back out. Although they had seen his head and heard him crying out at some point, they had been unable to find him in the water. Their statements were confirmed by an eyewitness, S.K., on 20 March 2010.
7. On 22 March 2010 Mesut’s body was recovered from the riverbed some 400 metres below the dam barriers. Following that development, the police prepared a detailed incident report. They also photographed the body and prepared a sketch map of the scene. An autopsy performed subsequently on the body confirmed that the cause of death was drowning.
8. In the meantime, on 20 March 2010 the first applicant (the victim’s father) had filed a criminal complaint against a number of teachers at the high school, accusing them of failing to promptly notify him of his son’s absence from school. The prosecutor’s office sought authorisation from the Kepez district governor’s office to prosecute the deputy head and three other teachers of the high school under the Prosecution of Civil Servants and Public Officials Act (Law no. 4483).
9. On 26 April 2010 the district governor’s office refused to authorise the prosecution of the deputy head and teachers in question. It held that there was no obligation under the relevant secondary education regulations to immediately inform parents if their children were absent from school, but the deputy head had nevertheless registered the absences of Mesut Ercankan and his friends in an online attendance register.
10. The first applicant objected to that decision. On 3 June 2010 the Antalya Regional Administrative Court accepted his objection and authorised the prosecution of the deputy head and teachers in question.
11. On 31 August 2010 the first applicant also filed a criminal complaint against the Antalya Regional Directorate of the State Water Board (Devlet Su İşleri “DSİ”) and the Antalya Water and Wastewater Authority (Antalya Su ve Atıksu İdaresi “ASAT”, which is run by the Antalya municipality), arguing that the authorities in question had not taken the necessary safety measures to prevent access to the dam despite its location in a residential area.
12. On the same day the first applicant was invited to the prosecutor’s office to give a statement in relation to his complaints. He told the public prosecutor that his son had known how to swim, and that according to information provided by his friends he had deliberately climbed up on the iron railings of the footbridge on the dam to jump into the water. Repeating his previous criminal complaint against the school authorities and teachers, the first applicant stated that had he been informed of his son’s absence from school in a timely manner, he could have prevented him from going swimming in the dam. He added that officials from DSİ and ASAT had also been responsible for the death, as they had failed to put up safety barriers around the dam.
13. On 1 September and 13 October 2010 the public prosecutor took statements from the deputy head of the high school and the three teachers. They all denied any legal responsibility for the death of Mesut Ercankan.
14. The prosecutor’s office subsequently sought authorisation from the Antalya governor’s office (“the governor’s office”) to prosecute S.Ö., the regional director of DSİ, and F.Y., the general director of ASAT, under Law no. 4483. The Antalya governor’s office accordingly ordered that an internal investigation be conducted by an in-house inspector into whether the relevant officials had been responsible for the death of the applicants’ son.
15. On 11 January 2011 the governor’s office decided not to authorise the prosecution of the relevant directors of DSİ and ASAT. According to the findings of the inspector, there were no specific regulations concerning the safety measures to be taken around dams and irrigation channels. It was nevertheless evident that municipalities, in view of their general legal responsibility to ensure public safety, were expected to take reasonable measures to minimise the dangers posed by such dams or irrigation channels in residential areas. Moreover, the information and evidence provided by DSİ suggested that as standard practice, it required the adoption of various safety measures around all the dams it built and transferred to the municipalities for operation, including the Düden dam.
16. The inspector stressed that having regard to the size of the irrigation channel in question, which was a natural river about thirty kilometres long, the authorities could not be expected to cover its entire length with wire fencing or the like and maintain the upkeep of such fencing. That said, according to the evidence collected on the day of the incident, both DSİ and the Antalya municipality had taken the necessary measures that could have been reasonably expected of them to ensure the safety of the dam and irrigation channel in question. It was evident from the photographic evidence in the case file that the top and sides of the bridge from which Mesut Ercankan had jumped were covered with iron railings that exceeded his height, and there were warning signs on both sides of the bridge, as well as all along the irrigation channel at regular intervals, indicating that it was dangerous and forbidden to go near or jump into the water. According to the evidence provided by ASAT, there had been 175 such warning signs along the banks of the river at the material time. Moreover, the dam itself was completely surrounded by wire fencing to impede entry, and any fencing removed by trespassers was repaired and replaced regularly by ASAT. There were also concrete safety barriers alongside the parts of the channel that adjoined public roads. The inspector emphasised that Mesut Ercankan had not accidentally fallen into the dam, but had willingly jumped into it despite all those safety measures, putting his own life in danger. In these circumstances, the directors of DSİ and ASAT had not been at fault for his drowning and could not be held criminally liable.
17. The first applicant objected to that decision. On 29 April 2011 the Antalya Regional Administrative Court accepted his objection and authorised the prosecution of the directors in question.
18. On 22 June 2011 the public prosecutor decided not to prosecute the teachers and directors for the death of Mesut Ercankan. He based his decision on the following findings:
(i) Mesut Ercankan had skipped school to go swimming in the dam in question but had drowned as he could not swim very well.
(ii) The deputy head and teachers of the high school had not neglected their duties towards the victim or his parents and, in any event, there was no causal link between their alleged failure to inform the victim’s family of his absence from school and his death.
(iii) It was evident from the evidence in the case file that DSİ and ASAT had taken the necessary safety measures around the dam at issue but that the victim had nevertheless ignored those measures and climbed over iron railings – that apparently exceeded his height – to jump into the channel. In these circumstances, the victim’s death could not be linked to any omissions on the part of the directors of DSİ and ASAT.
19. The first applicant objected to the public prosecutor’s decision, complaining that he had based his decision entirely on the statements of the accused without even obtaining an expert report on the circumstances of his son’s death.
20. On 28 September 2011 the Manavgat Assize Court dismissed the first applicant’s objection. That decision was served on the applicants on 25 November 2011.
B. Relevant domestic law
21. Article 28 § 2 of the now defunct Ministry of Education Regulations on Secondary Education Institutions (no. 27305) provided as follows:
“Unauthorised absences of students shall be notified to their parents ... at the end of the fifth and tenth days of their absence. Notifications ... regarding absences may be made by standard post or electronically ...”
22. Detailed information regarding Law no. 4483 (the Prosecution of Civil Servants and Public Officials Act) may be found in the cases of M. Özel and Others v. Turkey (nos. 14350/05 and 2 others, § 133, 17 November 2015) and Aydoğdu v. Turkey (no. 40448/06, §§ 37-39, 30 August 2016).
C. Relevant international law
23. The Convention on the Rights of the Child of 20 November 1989 provides, as relevant:
Article 1
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
24. In its General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, the Committee on the Rights of the Child held as follows:
I. Introduction
“1. ... While the Convention recognizes the rights of all persons under 18 years, the implementation of rights should take account of children’s development and their evolving capacities. Approaches adopted to ensure the realization of the rights of adolescents differ significantly from those adopted for younger children.
...
5. The Committee recognizes that adolescence is not easily defined, and that individual children reach maturity at different ages. Puberty occurs at different ages for boys and girls, and different brain functions mature at different times. The process of transitioning from childhood to adulthood is influenced by context and environment, as reflected in the wide variation in cultural expectations of adolescents in national legislations, which afford different thresholds for entry into adult activities, and across international bodies, which employ a variety of age ranges to define adolescence. The present general comment does not seek, therefore, to define adolescence, but instead focuses on the period of childhood from 10 years until the 18th birthday to facilitate consistency in data collection.
...
III. The case for a focus on adolescents
...
9. Adolescents are on a rapid curve of development. The significance of the developmental changes during adolescence has not yet been as widely understood as that which occurs in early years. Adolescence is a unique defining stage of human development characterized by rapid brain development and physical growth, enhanced cognitive ability, the onset of puberty and sexual awareness and newly emerging abilities, strengths and skills. Adolescents experience greater expectations surrounding their role in society and more significant peer relationships as they transition from a situation of dependency to one of greater autonomy.
...
IV. General principles of the Convention
Respect for evolving capacities
18. Article 5 of the Convention requires that parental direction and guidance be provided in a manner consistent with the evolving capacities of the child. The Committee defines evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights. The Committee has argued that the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing.
19. The Committee emphasizes that the right to exercise increasing levels of responsibility does not obviate States’ obligations to guarantee protection. Gradual emergence from the protection of the family or another care environment, together with relative inexperience and lack of power, can render adolescents vulnerable to violations of their rights. The Committee stresses that engaging adolescents in the identification of potential risks and the development and implementation of programmes to mitigate them will lead to more effective protection. By being guaranteed the right to be heard, to challenge rights violations and to seek redress, adolescents are enabled to exercise agency progressively in their own protection.
20. In seeking to provide an appropriate balance between respect for the evolving capacities of adolescents and appropriate levels of protection, consideration should be given to a range of factors affecting decision-making, including the level of risk involved, the potential for exploitation, understanding of adolescent development, recognition that competence and understanding do not necessarily develop equally across all fields at the same pace and recognition of individual experience and capacity.
VII. Definition of the child
...
39. States should review or introduce legislation recognizing the right of adolescents to take increasing responsibility for decisions affecting their lives.”
COMPLAINTS
25. The applicants complained under Article 2 of the Convention that the relevant State officials had been responsible for their son’s death, as they had not taken the necessary safety measures around the dam and irrigation channel in question and had not informed them of his absence from school in a prompt manner.
26. They further complained under Article 6 that their right to a fair trial had not been respected as the public prosecutor had not conducted an effective and comprehensive investigation into the incident.
27. They lastly complained under Article 41 that the public prosecutor’s decision not to prosecute had removed any prospects of obtaining redress for the pecuniary and non-pecuniary damage they had sustained as a result of the death of their son.
THE LAW
A. The parties’ arguments
28. The Government argued that the application should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies, as the applicants had not brought their complaints under Article 2 before the administrative courts. They argued in that regard that since the present case did not involve an intentional infringement of the right to life, a claim for compensation before the administrative courts against the Ministry of Education, the Antalya municipality and DSİ would have been fully capable of establishing the facts and responsibility for the accident, and providing adequate redress. They further argued that the incident at issue had taken place at a natural river, and not a structure built by the authorities, and that all safety measures that the authorities could have been expected to take around the river had already been taken. The Government submitted a large number of photographs, taken on the day of the incident, that demonstrated the various safety measures taken around the dam and irrigation channel, as noted in the inspector’s report (see paragraph 16 above). The Government claimed that in these circumstances, holding the authorities accountable for the death would amount to imposing an excessive burden, particularly considering that it had been principally brought about by the victim’s own recklessness and an uncontrollable chain of events. They added that the criminal investigation conducted into the incident had been effective. The public prosecutor had deemed the evidence and information already available in the investigation file to be sufficient to reach a decision not to prosecute, without the need for an additional expert opinion. Therefore, the absence of such an opinion could not alone have impaired the effectiveness of the investigation.
29. The applicants did not comment on the information and photographs submitted by the Government demonstrating the safety measures in place around the dam and irrigation channel at the material time.
B. The Court’s assessment
30. The Court notes that the applicants’ son lost his life because he drowned in the reservoir of a dam constructed over the Düden River. It is not contested by the parties that he missed school to go swimming and jumped into the water willingly and did not fall accidentally. The applicants claimed under Article 2 of the Convention that the State authorities had nevertheless been responsible for their son’s death on account of their failure (i) to take the necessary measures to prevent access to the dam and irrigation channel and (ii) to promptly notify them of his absence from school. Furthermore, the applicants claimed under Articles 6 and 41 that the State authorities had failed to conduct an effective investigation into the incident, which had in turn prevented them from seeking compensation for their son’s death.
31. The Court considers at the outset that the applicants’ complaints fall to be examined under Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
32. The basic principles concerning a State’s positive obligation to protect the right to life under Article 2, including against non‑intentional infringements of that right, were set out by the Grand Chamber in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 89-96, ECHR 2004‑XII), and were subsequently detailed in many cases that followed (see, for instance, Budayeva and Others v. Russia, nos. 15339/02 and 4 others, §§ 128-145, ECHR 2008 (extracts); Ciechońska v. Poland, no. 19776/04, §§ 59-79, 14 June 2011; and Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, §§ 79-106, ECHR 2013).
33. According to the Government, the criminal investigation conducted into the incident had effectively established that no State authorities had been responsible for the applicants’ son’s death. They moreover argued that the applicants had in any event failed to exhaust all available domestic remedies in relation to their complaints against the State authorities. Having regard to those submissions, the Court will first examine how the respondent State has complied with its procedural obligations under Article 2 and then determine whether the applicants’ complaints raise an issue under the substantive limb of that provision (see, mutatis mutandis, Mikhno v. Ukraine, no. 32514/12, § 130, 1 September 2016).
1. Alleged ineffectiveness of the judicial response in the aftermath of the death
34. The applicants complained that the criminal investigation conducted into the incident had been ineffective and that, as a result, they had been prevented from seeking redress for their son’s drowning before civil or administrative courts.
35. The Court notes that the prosecution authorities initiated an investigation into the death of the applicants’ son of their own motion soon after the incident. They collected evidence at the scene – including as regards the safety measures taken around the dam and irrigation channel, which later proved pivotal in the public prosecutor’s decision – and questioned witnesses to shed light on the circumstances of the death and establish any criminal responsibility. Relying on the information and evidence collected, the public prosecutor decided that none of the State officials accused by the applicants could be held criminally liable for the death of the victim. The applicants objected to that decision which, however, was upheld by the Manavgat Assize Court.
36. Having regard to the information and material before it, the Court finds no appearance of arbitrariness or other shortcomings in the conduct of the investigation that would cast doubt upon its effectiveness. Furthermore, the applicants did not submit any arguments to substantiate their criticism concerning the criminal investigation and to warrant a finding to the contrary.
37. The Court moreover notes that it is not disputed between the parties that the applicants’ son was not killed intentionally and that the circumstances surrounding his death were not such as to raise suspicions in that regard. The case, therefore, did not involve an intentional infringement of the right to life. The Court reiterates that in cases where the infringement of the right to life is not intentional, and where there are no suspicions in that regard, Article 2 does not necessarily require criminal remedies. In such cases, the State may meet its obligation under Article 2 by affording victims a civil‑law remedy (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; see also, Sinim v. Turkey, no. 9441/10, § 62, 6 June 2017, and the cases cited therein, for exceptional circumstances where civil remedies alone may not suffice to satisfy the requirements of Article 2 despite the non-intentional nature of the infringement of the right to life).
38. The Court notes that the applicants in the instant case did not bring a civil or administrative action in addition to the criminal remedies that they pursued against the relevant State authorities and claimed, instead, that the decision of the public prosecutor not to prosecute had removed any prospects of civil remedies. The Court recalls, however, that under Turkish law, the civil and administrative courts are not bound by the conclusions in criminal proceedings as to the absence of fault, and have the competence to collect evidence and assess responsibility for their own purposes (see, for instance, Mustafa Türkoğlu v. Turkey, no. 58922/00, § 40, 8 August 2006; Dikici v. Turkey, no. 18308/02, § 25, 20 October 2009; Güvenç v. Turkey (dec.), no. 43036/08, § 40 and §§ 42-44, 21 May 2013; and Sıdıka İmren v. Turkey, no. 47384/11, § 64, 13 September 2016) and provide redress as appropriate. The applicants did not submit any arguments as to why the present case was an exception to that general rule. The Court, therefore, cannot but rule that contrary to the applicants’ claims, the civil and administrative courts could have offered them redress independent of the findings in criminal proceedings, as appropriate (see also, Anna Todorova, cited above; Ciechońska, cited above, § 66; Sansal v. Turkey (dec.), no. 28732/09, §§ 42‑51, 2 September 2014; and Gençarslan v. Turkey (dec.), no. 62609/12, §§ 19‑22, 14 March 2017).
39. In the light of the foregoing, the Court considers that the applicants’ complaints under this head are manifestly ill‑founded and must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. Alleged failure of the State authorities to safeguard the applicants’ son’s right to life
40. The Government claimed that the applicants’ complaints against various State authorities under the substantive limb of Article 2 had to be declared inadmissible for non‑exhaustion of domestic remedies, as they had failed to bring those claims before the administrative courts, which could have provided redress in connection with the accidental death of their son.
41. The Court notes that the applicants have resorted only to criminal law remedies in connection with the death of their son, which have proved effective as established in paragraph 36 above. The Court does not find it necessary to determine whether the applicants’ failure to bring an administrative action in addition to those criminal proceedings raises an exhaustion issue in the circumstances as alleged by the Government, as their complaints under this head are inadmissible in any event for the reasons set out below.
a. Alleged responsibility of the directors of DSİ and ASAT for the death
42. Having regard to the approach adopted in previous cases involving non-intentional infringements of the right to life, the Court reiterates that the positive obligations under Article 2 of the Convention require States to adopt in this context regulations for the protection of people’s safety in public spaces, and to ensure the effective functioning of that regulatory framework (see Ciechońska, cited above, § 69).
43. It appears from the information in the case file that there was no specific regulatory framework at the material time governing the safety measures to be taken around dams and irrigation channels (see paragraph 15 above). Be that as it may, the information in the case file also shows that the relevant authorities had nevertheless taken a series of measures to prevent access to the dam and warn against the dangers of swimming in the dam and irrigation channel in accordance with the standard practice of DSİ and the general duties of municipalities to protect the public (see paragraph 16 above). The Court reiterates in this connection that the absence of special legislative guidelines may be compensated for by other context-specific instructions and measures by the relevant authorities, which appears to have been the situation in the present case (see, for instance, Mikhno v. Ukraine, no. 32514/12, § 127, 1 September 2016, and Çakmakçı v. Turkey (dec.), no. 3952/11, 2 May 2017). The question still remains, however, as to whether the measures in place around the Düden irrigation channel had been adequate to protect the applicants’ son’s right to life within the meaning of Article 2 of the Convention.
44. The Court notes from the information and photographic evidence in the case file, which was not challenged by the applicants, that a number of measures had been taken around the dam and the irrigation channel to warn against the dangers of swimming in the water and to prevent access as much as possible. Accordingly, some 175 warning signs were placed along the banks of the river and on the two sides of the bridge where the applicants’ son jumped into the water. Moreover, while the irrigation channel, which was a thirty kilometre-long natural river, could not be completely covered in wire fencing for practical reasons, the top and sides of the bridge where the incident occurred 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 roads. In these circumstances, and noting in particular that the applicants’ son did not fall into the water accidentally but ignored wilfully the measures that had been put in place to ensure his safety, the Court finds that the relevant State 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.
45. The Court therefore finds no reason to depart from the Antalya public prosecutor’s finding that in the instant case, the applicants’ son lost his life as a result of his own imprudent conduct and that the State authorities could not be held responsible for his death (see, for instance, Bone v. France (dec.), no. 69869/01, 1 March 2005). The Court reiterates in this connection that while Article 2 enjoins the State to protect the right to life, it cannot be interpreted as guaranteeing to every individual an absolute level of security in any activity in which the right to life may be at stake (see Bone, cited above; Molie v. Romania (dec.), no. 13754/02, § 44, 1 September 2009; Koseva v. Bulgaria (dec.), no. 6414/02, 22 June 2010; and Gökdemir v. Turkey (dec.), no. 66309/09, § 17, 19 May 2015). Bearing in mind, among other things, the unpredictability of human conduct, the scope of the State’s positive obligation under that provision must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Koseva, cited above).
46. Having regard to the foregoing, the Court considers that the applicants’ complaints in respect of DSİ and ASAT under Article 2 of the Convention must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
b. Alleged responsibility of the deputy head and teachers of the high school for the death
47. The Court notes that in Öneryıldız (cited above, § 71) the Grand Chamber observed that the positive obligation under Article 2 to protect the right to life must be construed as applying in the context of any activity, whether public or not, in which that right may be at stake. In this connection, the Court considers that the State’s duty to safeguard the right to life is also applicable to school authorities, who carry an obligation to protect the health and well-being of pupils while they are under their exclusive control (see, mutatis mutandis, İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, § 35, 10 April 2012, and Kayak v. Turkey, no. 60444/08, § 59, 10 July 2012).
48. The Court also reiterates, however, that the positive obligation under Article 2 is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, amongst other authorities, Keenan v. the United Kingdom, no. 27229/95, §§ 89-92, ECHR 2001‑III; A. and Others v. Turkey, no. 30015/96, §§ 44-45, 27 July 2004; and İlbeyi Kemaloğlu and Meriye Kemaloğlu, cited above, § 36).
49. Turning to the facts before it, the Court notes at the outset that the applicants’ complaint against the school authorities did not concern a deficiency in the regulatory framework pertaining to the protection of students’ safety at schools (see, for an example to the contrary, Molie, cited above). It was not disputed between the parties that the tragic event that claimed the applicants’ son’s life had taken place outside the school premises, that is, when he had technically been outside the school’s exclusive control (contrast Kayak, cited above, § 59). In these circumstances, the question to be resolved by the Court is whether the school authorities nevertheless knew or ought to have known that the applicants’ son would be exposed to a life-threatening danger after his truancy from school, which should have prompted them to take the necessary measures to protect his right to life, such as notifying the applicants of his absence in a prompt manner.
50. In the Court’s opinion, a particular degree of vulnerability would need to be demonstrated in order to impose on the school authorities a stringent requirement to immediately notify parents of a student’s absence. The Court considers that where young children are concerned, for instance, their indisputable vulnerability against potential risks in the outside world would no doubt require the school authorities to take prompt measures, including informing the parents and the police as necessary, in the event of their unexplained absence from the school premises. The Court notes in this connection that the particular vulnerability of children of a young age was discussed in the case of İlbeyi Kemaloğlu and Meriye Kemaloğlu (cited above, §§ 32‑48), albeit in a different context. The Court does not exclude the fact that there may be other circumstances where special attention and measures may 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 (such as in İlbeyi Kemaloğlu and Meriye Kemaloğlu, cited above) or specific security threats, which may render the student particularly vulnerable outside the school premises regardless of his or her actual age.
51. The Court notes that the applicants in the instant case did not mention 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 action upon noticing his absence. Nor did they mention any specific threats outside the school premises that would have exposed him to a real and immediate risk. While the Court is mindful that 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, it also notes that the level of diligence required to protect children from harm must necessarily be adjusted as they grow older and reach adolescence, and begin to exercise increasing levels of responsibility in keeping with their evolving capacities (see paragraph 24 above). The Court is fully cognisant of the range of risks that children may still be exposed to in their adolescent years (see, for instance, Kayak, cited above, as well as the references in paragraph 24 above). However, in the absence of any special factors as discussed in the preceding paragraph, it nevertheless considers it difficult to maintain that the mere failure of school authorities to inform parents immediately of the unauthorised absence from school of a fifteen-year-old high school student may 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.
52. In these circumstances, the applicants’ complaints under Article 2 against the school authorities remain unsubstantiated and unfounded. The Court therefore considers that their complaint under this head is manifestly ill‑founded and must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 June 2018.
Stanley NaismithRobert Spano
RegistrarPresident
Full & Egal Universal Law Academy