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SECOND SECTION
DECISION
Application no. 2302/12
Ömür ÖZTEKİN and AyferÖZTEKİN
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Committee composed of:
LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 10 November 2011,
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 ÖmürÖztekin and Ms AyferÖztekin, are Turkish nationals, who were born in 1970 and 1967 respectively and live in Muğla. They were represented before the Court by Mr İ. B. Duruş, a lawyer practising in Muğla.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 8 July 2002 the applicants’ six-year old daughter was severely wounded when two concrete sewage pipes collapsed onto her while playing at an allegedly unguarded sewer construction site near her house. On 9 July 2002 she succumbed to her injuries and died at the hospital where she had been taken.
1. Criminal proceedings
5. According to the incident report prepared by the police a couple of hours after the accident, there were four concrete sewage pipes at the scene of incident, two positioned horizontally on the ground and two standing upright. There were blood stains on the pipes laying on the ground. There was a warning sign some five metres away from the location of the accident, indicating that it was “dangerous and forbidden to walk around the machines”. There was also an illustrated sign with the inscription “Warning! Construction site”.
6. On the same day, the police questioned the first applicant (the victim’s father). He stated that the sewer construction work had been carried out by a company named İS-KA on behalf of the Municipality of Yatağan (“the Municipality”). Although the construction work was finished, the said company had neither removed the concrete sewage pipes from the area, nor had they stacked them safely. The first applicant claimed that the relevant İS-KA employees had therefore been criminally liable for his daughter’s death.
7. On 10 July 2002 the Yatağan public prosecutor, accompanied by a police expert, carried out an examination at the incident scene, and also heard three witnesses. The witnesses confirmed that the collapse of the concrete pipes onto the victim had been an accident.
8. On 17 February 2002 the Yatağan public prosecutor filed an indictment with the Yatağan Criminal Court of First Instance (“the Yatağan Criminal Court”) against three employees of the company İS-KA, namely H.Y.K., Y.T. and M.Ö., as well as against the first applicant, for causing the little girl’s death by negligence under Article 455 § 1 of the Criminal Code in force at the material time. The public prosecutor accused the İS-KA employees of failure to show sufficient care in the storage of the concrete pipes, and accused the first applicant of failure to duly care for the safety of his daughter.
9. On 15 October 2002 the first applicant joined the criminal proceedings as a civil party.
10. The Yatağan Criminal Court ordered an expert report to establish the circumstances and responsibility for the accident. The expert report issued on 12 March 2003 (“the first report”) by three experts on occupational safety found that the concrete pipes at issue had not been stacked properly, for it was obvious that the pipes stacked vertically would fall easily. The experts stated that had the pipes been laid on the ground horizontally, or had the construction site been enclosed, the fatal accident would not have taken place. Accordingly, the experts established the respective faults of the defendants as follows:
– the employer company İS-KA held 25 % responsibility on account of its failure to enforce the safety rules on the construction site;
– the operator of the digger, M.Ö., and the driver of the lorry, Y.T., held 25 % and 12.5 % responsibility, respectively, on account of their failure to stack the concrete pipes properly;
– the applicants held 12.5 % responsibility each on account of their omission in the provision of care and supervision to their daughter;
– the victim herself held 12.5 % responsibility on account of her failure to show sufficient care for her safety.
11. Having regard to the findings of the experts, the Yatağan public prosecutor filed an additional indictment against the second applicant (the victim’s mother) and T.K., the owner of İS-KA. On 3 June2003 the second applicant joined the criminal proceedings as a civil party.
12. On 19 February 2004 the Yatağan Criminal Court commissioned another report from a group of experts on occupational safety, child care and social services. In their report dated 20 April 2004 (“the second report”) the experts found that the owner of the company, T.K., and the first applicant had not been at any fault, but the remaining defendants (the second applicant, H.Y.K., M.Ö. and Y.T.) and the victim had had varying degrees of responsibility for the accident.
13. On 11 May 2004 the Yatağan Criminal Court convicted H.Y.K., Y.T., M.Ö. and the second applicant as charged, but decided to suspend the execution of their sentences under Section 6 of the Execution of Sentences Act (Law no. 647). It acquitted the first applicant and T.K.
14. The convicted defendants appealed against that judgment. On 25 April 2006 the Court of Cassation quashed the judgment insofar as it concerned those defendants and requested further clarification on certain factual matters.
15. In keeping with the Court of Cassation’s request, the Yatağan Criminal Court ordered another expert report from a group of academics. In their report dated 8 May 2008 (“the third report”) the experts found that the victim held the main responsibility (50 %) on account of her imprudent actions, and that the remaining responsibility lay with the construction site chief H.Y.K. and the operator of the digger M.Ö. on account of their respective failures to secure the construction site and to stack the concrete pipes properly. The experts stated that the remaining defendants, including the two applicants, could not be held liable for the accident.
16. On 20 November 2008 the Yatağan Criminal Court convicted H.Y.K. and M.Ö. as charged, but suspended the execution of their sentences. The remaining defendants were acquitted.
17. The applicants appealed against that judgment. On 28 December2010 the Court of Cassation decided to discontinue the proceedings as the prosecution of the offence in question had become time‑barred. That decision was deposited with the registry of the first‑instance court on 15 February 2011, and it was served on the applicants on 11 May2011 upon their request.
2. Civil proceedings
18. On 7 July 2010 the applicants brought compensation proceedings against the İS-KA construction company, H.Y.K., M.Ö. and the Municipality before the Yatağan Civil Court of First Instance (“the Yatağan Civil Court”).
19. On 30 March 2011 the civil court decided to dismiss the case as it had not been brought within the five-year statutory time-limit in force at the material time for the relevant offence.
20. On 11 May 2011 the applicants appealed against that decision. They stated in particular that the first instance court had erroneously calculated the statutory time-limit in accordance with the relevant provisions of the former Criminal Code (Law no. 765), which had been in force at the time of the commission of the offence at issue. Law no. 765 had, however, been repealed in June 2005, and the new Criminal Code (Law no. 5237), which envisaged a longer time‑limit in respect of the offence in question, had been in force at the time that they brought their compensation claim in 2010. They argued, accordingly, that the time-limits set out under the new law should be applied in their case. The applicants requested the holding of a hearing before the Court of Cassation
21. On 3 October 2011 the Court of Cassation upheld the decision of the Yatağan Civil Court without holding a hearing. On 5 April 2012 it dismissed a rectification request by the applicants in respect of its previous decision.
COMPLAINTS
22. The applicants complained, without citing any provisions of the Convention, that the Yatağan Criminal Court had failed to identify and punish those responsible for the death of their daughter, in particular the Municipality officials who had failed in their inspection duties, in violation of the right to life and the right to a fair trial. They further complained of the length of the criminal proceedings, which had led to their discontinuation for having become time‑barred.
23. In their submissions dated 18 May 2012, the applicants further complained of the outcome of the civil proceedings, arguing that the Yatağan Civil Court had applied the time-limit rules erroneously and that the Court of Cassation had rejected their appeal request in an arbitrary manner without holding a hearing.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings
24. The applicants complained of an infringement of their right to a fair trial on account of the length of the criminal proceedings at issue. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …”
25. The Government did not submit any specific observations on this issue.
26. The Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Therefore, a victim of an offence may only invoke his or her fair trial rights in connection with the criminal proceedings against the offender if he or she has joined those proceedings as a civil party to obtain damages or to otherwise protect his or her civil rights (see, for instance, Hafikli v. Turkey (dec.), no. 13394/12, 30 August 2016). The Court notes that while the Turkish Code of Criminal Procedure, as in force at the material time, allowed civil parties to request compensation during criminal proceedings (see Beyazgül v. Turkey, no. 27849/03, §§ 36 and 39, 22 September 2009), there is no information in the case file to suggest that the applicants made such a request after joining the proceedings as civil parties.
27. In these circumstances, and relying on its settled case-law on this matter, the Court concludes that this part of the application is incompatible rationemateriae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention (see Hafikli, cited above).
B. The alleged violation of Article 2 of the Convention
1. The parties’ arguments
28. The applicants complained that neither the criminal proceedings nor the civil proceedings in respect of the accident had been conducted in an effective manner. They argued in particular that (i) the criminal court had failed to identify and punish all private persons and State officials who had been responsible for the death of their daughter and that, in any event, the criminal proceedings had been discontinued for having become time-barred; (ii) they had been denied any compensation for the death of their daughter as the civil court had applied the time-limit rules erroneously; and (iii) the Court of Cassation had rejected their appeal request in an arbitrary manner without providing any reasoning.
29. The Government claimed that since the present case did not involve an intentional infringement of the right to life, a claim for compensation before the administrative courts would have been fully capable of establishing the facts and responsibility of any State authorities for the accident, and providing adequate redress. Since the applicants had not brought such proceedings, their complaints had to be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies inasmuch as they concerned the alleged State responsibility for the accident. The Government further argued that although the applicants had been aware of the identities of the persons held liable in connection with the death of their daughter since the very beginning of the criminal proceedings, they had waited eight years before bringing civil proceedings for compensation and had, therefore, missed the time-limit for bringing such action. The Government stressed that there was no arbitrariness in the dismissal of their compensation claim by the Yatağan Civil Court, which had complied with the relevant domestic law as interpreted by the Joint Civil Chambers of the Court of Cassation in delivering its judgment. They submitted sample decisions of the Joint Civil Chambers in support of their claims. They also stated that the decision by the Yatağan Civil Court to apply the time-limit in force at the time of the commission of the offence, as opposed to that in force at the time of the lodging of the compensation claim, was in line with the universal principle against the retroactive application of laws to an accused’s detriment. The Government lastly argued that, in any event, the complaints concerning the civil proceedings had been lodged outside the six-month time-limit.
30. The applicants did not contest the Government’s submissions regarding the compensation proceedings.
2. The Court’s assessment
31. The Court considers at the outset that the applicants’ complaints should be examined from the standpoint of Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. ….”
32. The Court further considers that it is not necessary to reach a conclusion as to whether the applicants failed to exhaust the available domestic remedies within the six-month time-limit set out in Article 35 § 1 of the Convention as argued by the Government, as their complaints are inadmissible in any event for being manifestly ill-founded.
33. The Court notes that in the instant case, the applicants’ daughter lost her life following the collapse of a concrete pipe onto her while she was playing at a sewer construction site. The applicants did not argue that their daughter had been killed intentionally, nor did they suggest that there had been any suspicions in that regard. The present case, therefore, concerns the non‑intentional infringement of the right to life.
34. The Court notes in this connection that where death results from negligence, as in the instant case, the obligation under Article 2 to provide an effective independent judicial system may be satisfied if the legal system affords the victims a remedy in civil and/or administrative courts, either alone or in conjunction with a remedy in the criminal courts (see Ciechońska v. Poland, no. 19776/04, § 66, 14 June 2011). It is only in exceptional circumstances – that involve a level of negligence that goes beyond a mere error of judgment or carelessness – that a criminal-law remedy would be required in such cases involving a non-intentional infringement of the right to life (see, for instance, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII; Mehmet Şentürk and BekirŞentürk v. Turkey, no. 13423/09, §§ 104-106, ECHR 2013; Oruk v. Turkey, no. 33647/04, §§ 50 and 65, 4 February 2014; and Sinim v. Turkey, no. 9441/10, §§ 62 and 63, 6 June 2017). The applicants in the instant case have not provided any evidence or arguments to suggest that the present case involved such similar circumstances calling for a criminal-law response.
35. In these circumstances, while the Court acknowledges the shortcomings in the criminal proceedings at issue which led to their discontinuation, it considers in the light of its case-law that Article 2 of the Convention did not necessarily require a criminal-law remedy in respect of the facts and could be satisfied if the applicants had at their disposal an effective remedy before civil and/or administrative courts (see Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; Ciechońska, cited above; Sansal v. Turkey (dec.), no. 28732/09, § 46, 2 September 2014; Demir v. Turkey (dec.), no. 58200/10, § 18, 13 October 2015; and Gençarslan v. Turkey (dec.), no. 62609/12, §§ 19-22, 14 March 2017). The Court will now examine whether the applicants duly made use of the civil and administrative law remedies available to them in connection with their complaints.
36. The Court notes in the first place that some eight years after the incident, the applicants brought an action for compensation before the Yatağan Civil Court against the construction company at issue, and a number of its employees, with regard to the death of their daughter. That action was, however, dismissed for having been brought outside the five‑year statutory time‑limit. The applicants claimed that they had been denied access to compensation as a result of the erroneous interpretation of the time-limit rules by the Yatağan Civil Court, which error was, moreover, not corrected subsequently by the Court of Cassation. The Government argued in response that the relevant time-limit rules had not been applied arbitrarily in the present case, and submitted examples from the case-law of the Joint Chambers of the Court of Cassation in support of their argument. The applicants did not in any way contest the Government’s submissions. In these circumstances, and considering in particular that domestic courts are better placed to interpret the domestic laws (see, for instance, Sotiris and Nikos Koutras ATTEE v. Greece, no. 39442/98, § 17, ECHR 2000‑XII, and the cases cited therein), the Court has no reason to doubt the assessment of the Yatağan Civil Court regarding the application of the time-limit rules in the present case, which does not appear arbitrary or unduly formalistic. Nor has the Court any basis for concluding that the ensuing appeal proceedings had been arbitrary as alleged on account of the absence of a hearing or for any other reason (see, in this regard, Hasan Tunç and Others v. Turkey, no. 19074/05, § 52, 31 January 2017, and the cases cited therein).
37. The Court notes secondly that while the applicants complained of the responsibility of the Municipality officials in connection with the death of their daughter (see paragraph 22 above), they did not bring an action before administrative courts against the relevant State authorities. Nor did they provide an explanation as to why they refrained from bringing such action.
38. In the light of the foregoing, and of its decisions in similar cases involving non-intentional infringements of the right to life (see, for instance, Sansal, cited above, §§ 42-51, and Aktaş v. Turkey (dec.), no. 9054/13, §§ 22-30, 19 December 2017), the Court finds that the applicants’ complaints concerning the inadequacy of the judicial response in the aftermath of the incident are 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 21 June 2018.
Hasan Bakırcı LediBianku
Deputy Registrar President
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