SECOND SECTION
DECISION
Application no. 66309/09
Gülsen GÖKDEMİR
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 May 2015 as a Committee composed of:
Paul Lemmens, President,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Gülsen Gökdemir, is a Turkish national, who was born in 1965 and lives in Giresun.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 24 January 2005 the applicant’s husband, Şinasi Gökdemir, drowned after having fallen into the sea while he was fishing on a pier in Bulancak.
4. On the same day, the Police Directorate interviewed two eye-witnesses. According to the first witness, Şinasi Gökdemir had been fishing on the pier and had fallen into the sea after he had jumped onto the docking platform which had been slippery. He further stated that Şinasi Gökdemir had been struggling in the water and that he had disappeared from view when he had gone away to bring help. The second witness confirmed that Şinasi Gökdemir had been struggling in the water and stated that he had disappeared from view after having been carried away by the waves.
5. On the same day, a police officer drew a sketch plan of the incident scene and prepared an official on-site report.
6. On 7 February 2005 the applicant lodged a criminal complaint with the Bulancak public prosecutor’s office against the town council of Bulancak for reckless and negligent homicide. She claimed that the absence of a lifebuoy, rope, or any such equipment had contributed to her husband’s death. She added that there were no warning signs on the steps or on the pier.
7. On 11 February 2005 the public prosecutor decided not to prosecute anyone in connection with the death. The prosecutor stated in his decision that on 24 January 2005 the applicant’s husband had slipped down the steps of the pier while fishing and had fallen into the sea where he drowned despite all his efforts and the help of the people in the area. Based on the findings of the autopsy, carried out on 25 January 2005, the eye-witness testimonies, the official incident on-site report, the sketch plan of the scene and other documents included in the file, the prosecutor concluded that Şinasi Gökdemir had died as a result of his own negligence and imprudence. The public prosecutor stated that a copy of the decision would be sent to the applicant.
8. On 26 March 2009 the applicant obtained a copy of the decision by applying to the local court house.
9. On 3 April 2009 the applicant filed an objection before the Ordu Assize Court against the non-prosecution decision.
10. The applicant’s objection was rejected on 25 May 2009 by the Ordu Assize court which concluded that the decision not to prosecute was compatible with the legislation in force and the applicable procedure.
COMPLAINT
11. The applicant complained under Article 6 of the Convention that neither the Bulancak prosecutor nor the Ordu Assize Court had examined her allegations and investigated them. She claimed that the two judicial authorities had behaved in a protective manner towards the town council and therefore failed to conduct fair proceedings.
THE LAW
12. The Court considers that the applicant’s complaints concern the effectiveness of the investigation into the death of her husband and fall to be examined under Article 2 of the Convention which reads as follows:
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
13. The Court reiterates that Article 2 does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it places a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. Such a positive obligation has been found to arise in a range of different contexts examined so far by the Court, for example, in the health‑care sector, be it public or private, as regards the acts or omissions of health professionals (see Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004‑VIII, with further references), as well as in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑X), ensuring safety on board a ship (see Leray and Others v. France (dec.), no. 44617/98, 16 January 2001), concerning safety on building sites (see Pereira Henriques and Others v. Luxembourg (dec.), no. 60255/00, 26 August 2003), on a railway station (see Bone v. France (dec.), no. 69869/01, 1 March 2005), about the disappearance of an elderly lady suffering from Alzheimer’s from a nursing home (see Dodov v. Bulgaria (dec.), no. 59548/00, 17 January 2008), concerning a mountain-rescue operation (see Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008), and a fatal accident in a school sport facility (see Molie v. Romania (dec.), no. 13754/02, 1 September 2009).
14. The above list of areas in which the positive obligation arises is not exhaustive. In the Ciechońska v. Poland case, where the applicant’s husband had died after a tree fell on him in a health resort, the Court found that the State’s duty to safeguard the right to life extended to the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (no. 19776/04, § 67, 14 June 2011).
15. In some exceptional situations the Court has held that the authorities’ positive obligations under Article 2 of the Convention entailed resorting to criminal law remedies (see Öneryıldız, cited above, § 93, as well as Al Fayed v. France (dec.), no. 38501/02, §§ 73-78, 27 September 2007, and Railean v. Moldova, no. 23401/04, § 28, 5 January 2010, concerning road traffic accidents in which lives were lost in suspicious circumstances). However, the Court considers that in cases such as the present application in which the infringement of the right to life was not caused intentionally, the positive obligation imposed by Article 2 of the Convention to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I).
16. The Court observes at the outset that the applicant did not bring a compensation claim against the competent authorities. Furthermore, it has serious reservations as to whether the national authorities could be held responsible for the death of the applicant’s husband in this case and whether the complaints brought by the applicant to the attention of the national authorities could be said to be arguable within the meaning of the Court’s case-law (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). Nevertheless, having regard to the fact that a criminal investigation was in any event conducted, in its examination of the applicant’s complaints the Court will have regard to the conclusion reached during that investigation.
17. The Court notes in this regard that the danger of drowning after falling into the sea is an obvious risk which an average person, such as the applicant’s husband who was not a vulnerable individual, would be expected to appreciate and to avoid. Indeed, Article 2 of the Convention 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, in particular when the person concerned bears a degree of responsibility for the accident having exposed himself to unjustified danger (see Bone, cited above, Kalender v. Turkey, no. 4314/02, § 49, 15 December 2009 and Fedina v. Ukraine, no. 17185/02, § 65, 2 September 2010). The mere absence of safety equipment at the exact place where the accident occurred or the failure to post a warning sign would hardly provide a basis for State liability under Article 2 of the Convention, as this would mean imposing an excessive burden on the authorities (see, mutatis mutandis Koseva v. Bulgaria (dec.), no. 6414/02, 22 June 2010).
18. The Court observes that the tragic incident which resulted in the death of the applicant’s husband occurred on 24 January 2005. The Court also notes that the authorities took a number of investigative steps in order to establish the circumstances of the death of Şinasi Gökdemir without waiting for an official complaint from the applicant. The incident scene was inspected on the same day; an official on-site report was prepared and a sketch plan was drawn. The police interviewed two witnesses who confirmed that the applicant’s husband had drowned after an accidental fall from the pier. An autopsy was carried out the next day. The public prosecutor rendered a non-prosecution decision based on findings of the investigation, concluding that Şinasi Gökdemir had died of his own negligence and imprudence.
19. The Court cannot see any reason to cast doubt on the domestic investigating authorities’ findings and it notes that the applicant did not refer to any specific aspects of the investigation which she considered flawed.
20. As to the investigation’s promptness, the Court observes that it started immediately after the incident and the public prosecutor rendered its non-prosecution decision on 11 February 2005. The investigation ended with the decision of the Assize Court on 3 April 2009. It is true that this corresponds to a period of four years, one month and twenty-five days. However, the court notes that the applicant, who apparently did not receive the non-prosecution decision, waited more than four years before obtaining a copy of that decision by applying to the court house. In this regard, the Court observes that the delay is attributable to the applicant who is under the duty to show due diligence and take reasonable steps to obtain a copy of the decision (see Ölmez v. Turkey (dec.), no. 39464/98, 1 February 2005). It follows that the authorities may be regarded as having proceeded with reasonable expedition.
21. Therefore, the Court considers that the application must be rejected as manifestly ill-founded pursuant to 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 11 June 2015.
Abel CamposPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy