Öneryıldız v. Turkey

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 43

June 2002

Öneryıldız v. Turkey - 48939/99

Judgment 18.6.2002 [Section I]

Article 2

Positive obligations

Responsibility of the authorities for the deaths resulting from an accident at a municipal rubbish dump and effectiveness of domestic remedies: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Shanty town built on land belonging to the State and inhabited by applicant and family without any title

Peaceful enjoyment of possessions

Destruction of shanty town as a result of an accident at a municipal rubbish dump: violation

Facts: At the material time of the events the applicant and the 12 members of his family were living in a shantytown in Ümraniye (Istanbul). This shantytown comprised a collection of slums haphazardly built on land surrounding a rubbish tip which had been used jointly by four district councils since the 1970s and was under the authority and responsibility of the main City Council of Istanbul. Some decontamination work was commenced in 1989, then stopped by order of a court. An expert report drawn up in May 1991 at the request of the district court, to which the case had been referred by the Ümraniye district council, drew the authorities’ attention to the fact that the tip was in breach of the relevant technical regulations and the Environment Act and to the lack of any measures to prevent a possible explosion of the methane gas being given off by the decomposing refuse. The report gave rise to a series of disputes between the mayors concerned, with the mayor of Ümraniye calling for the adoption of measures to prevent the tip from being used. On 28 April 1993, while the proceedings instituted by the mayors were still in progress, a methane-gas explosion occurred on the waste-collection site and the refuse erupting from the pile of waste buried several houses, including that of the applicant, who lost nine members of his family. In 1993, a report drawn up by experts at the public prosecutor’s request attributed blame for the accident primarily to the mayors of Istanbul and Ümraniye. The public prosecutor said that they should be prosecuted for unintentional homicide and negligence in the exercise of their duties and transmitted the case to the investigating administrative authorities. Following criminal and administrative investigations, it was established that the facts were due to the failure to act and negligence of the mayors of Ümraniye and Istanbul: the former had, in particular, failed in his duty to have the illegal dwellings surrounding the tip demolished, and the latter had failed to make the rubbish tip safe or order its closure, in violation of the applicable regulations. Criminal proceedings were brought against the two mayors, following which they were found guilty in 1996 solely of “negligence in the exercise of their duties” and ordered to pay fines of 610,000 Turkish lira (TRL). It was decided to stay execution of the fines. The applicant subsequently lodged, on his own behalf and on behalf of his three surviving children, an action for damages in the Istanbul Administrative Court. The action was directed against the Ümraniye and Istanbul councils, which he deemed liable for the death of his relatives and the destruction of his property. Under a final judgment of 1995, the two councils were ordered to pay the applicant and his children TRL 100 million in non-pecuniary damages and TRL 10 million in pecuniary damages (at the time, these sums were roughly equivalent to 2,077 and 208 euros respectively), the latter amount covering only the destruction of household goods, excluding electrical appliances. This compensation has not yet been paid.

Law: Article 2 – This article imposed positive obligations on the state in the public sphere and was therefore applicable here. a. Responsibility for the death of the applicant’s relatives: (i) implementation of preventive measures in respect of the rubbish tip serving Ümraniye and the neighbouring slum areas: national regulations governing the operation of waste storage sites and slum clearance and rehabilitation did exist. The national authorities should therefore have complied with those regulations. The 1991 expert report referring to the health hazards and the risks of explosion showed that the rubbish tip did not comply with the relevant technical standards because the local and ministerial authorities had failed to take the measures required under those regulations. Admittedly, some decontamination work had been commenced in 1989, but had been stopped by order of a court, ie a state organ, whose decision had prolonged the deplorable situation with regard to the rubbish tip. The expert report of 1991 had therefore merely highlighted a situation of which the municipal authorities were supposed to have knowledge and be in control, especially as there were specific regulations regarding such matters. Although the national authorities had not encouraged the applicant to set up home near the rubbish tip, they had not dissuaded him from doing so either. In short, there was no reason to depart from the national courts’ findings regarding the extent of the authorities’ negligence in relation to the dangers of the rubbish tip and the causal link between that negligence and the accident.

(ii) On the question of the public’s right to information: an ordinary citizen could not be expected to know of the specific risks linked to the process of methanogenesis and landslides since that type of information could only be disseminated by action on the part of the administrative authorities. In the instant case, the authorities had had the information, but there was no evidence that any action had been taken to disseminate that information. Consequently, the administrative authorities had known or should have known that the inhabitants of certain slum areas in Ümraniye had been faced with a real threat to their lives. However, they had failed to remedy the situation and had not done all that could reasonably have been expected of them to avoid the risks in question. They had also failed in their duty to inform the inhabitants of the area of those risks. There had therefore been a violation of Article 2, unless the applicant’s complaints could be deemed to have been remedied in the domestic proceedings by the effective implementation of the appropriate judicial machinery.

b. Redress offered by legal remedies (compliance with the requirements deriving from the procedural obligation inherent in Article 2): In the particular circumstances of this case, a domestic remedy in damages could not absolve the state from its obligation to implement law enforcement machinery meeting the requirements of Article 2.

(i) Adequacy and effectiveness of the remedies employed: with regard to the domestic criminal proceedings, the Istanbul Criminal Court had sentenced the two mayors to a fine - with a stay of execution - of the equivalent of 9.70 euros for negligence in the exercise of their duties. The allegations set out in the applicant’s complaint and the public prosecutor’s decision had also been based on the notion of homicide through negligence. Once the case had been transmitted to the investigating administrative authorities, however, the facts had no longer been considered from the angle of a possible breach of the right to life; that had weakened the substance of the investigation carried out thus far in that the subject of the trial had been limited to negligence as such. Furthermore, the size of the fines to which the defendants had been sentenced showed that the trial courts had been unaware of the degree of seriousness of the events. The reticence on the part of the criminal courts regarding the assessment of the case in terms of a breach of the right to life had been tantamount to granting virtual impunity to the mayors, in violation of the state’s obligation to respond to breaches of the right to life through strict and dissuasive enforcement of domestic criminal legislation. Consequently, the criminal proceedings, as conducted, could not be considered to have been an adequate and effective remedy. The same was true of the administrative proceedings. Despite the need for particular diligence to expedite the proceedings, the applicant’s right to compensation had not been acknowledged until four years and 11 months after his first claims for compensation had been dismissed. Lastly, the compensation awarded to him of 2,077 euros, which was a questionable amount, had not yet been paid, in violation of the obligation on states to execute a final, enforceable judgment delivered against them. In brief, the remedies employed in the domestic proceedings had not complied with the requirements deriving from the procedural obligation under Article 2.

Conclusion: violation of Article 2 (5 votes to 2).

Article 1 of Protocol No.1 – The fact that he had occupied land owned by the Treasury for five years could not be deemed to be a possession and there was no basis on which to conclude that he had a valid claim to a transfer of title to the land. However, although it had been shown that the dwelling built by the applicant on that land had been erected in breach of the town planning regulations, the applicant had been the de facto owner of the main structure and component parts of the slum and of any personal effects that might be there. The dwelling constructed by the applicant and the fact that he had lived in it with his family represented a substantial pecuniary interest which, tolerated as it was by the authorities, amounted to a possession. The real and effective exercise of the right laid down in Article 1 of Protocol No.1 could require states to take positive measures of protection. In the instant case, the accumulation of omissions by the administrative authorities, who had failed to take all measures necessary to prevent the risk of explosion, and thus the resulting landslide, constituted a clear infringement of the applicant’s right to peaceful enjoyment of his possessions, which could be construed as an “interference”. Since those negligent omissions by the authorities had been penalised under Turkish administrative and criminal law, the interference had been manifestly contrary to domestic law. With regard to the issue of whether the applicant’s complaint had been remedied under domestic law, it was found that the applicant’s claims for pecuniary damages had not been carefully and expeditiously examined with a view to awarding him proportionate compensation, given that in the instant case there had not been any recognition by the trial courts of the administrative authorities’ liability in respect of the applicant’s complaint of loss of his possessions. In addition, the authorities had not yet made any payment to the applicant. The national authorities had neither acknowledged nor compensated the alleged violation.

Conclusion: violation (4 votes to 3).

Article 41 – Under Article 2, the Court awarded 17,000 euros in pecuniary damages and 133,000 euros in non-pecuniary damages. Under Article 1, Protocol No.1, the Court awarded 4,000 euros in pecuniary damages. It awarded a sum in respect of costs and expenses.

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