SECOND SECTION
DECISION
Application no. 47021/10
İbrahim ÖZDEMİR and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 June 2017 as a Committee composed of:
Ledi Bianku, President,
Paul Lemmens,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 13 May 2010,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 22 July 1999 the applicants’ son and brother, Alp Özdemir, lost his life after being hit by a truck owned by the General Directorate of Highways (Karayolları Genel Müdürlüğü) while he was standing on the side of a road outside his workplace.
1. Criminal proceedings
4. Shortly after the incident, a criminal investigation was initiated and the truck driver was charged with causing death by negligence.
5. On 10 April 2001 the Lüleburgaz Criminal Court of First Instance found the truck driver to be 100 % responsible for the accident and sentenced him to two years’ imprisonment and a fine.
6. On 9 October 2002 the Court of Cassation quashed that judgment, as the first-instance court had not duly examined whether the execution of the sentence could be suspended under Section 6 of the Execution of Sentences Act (Law no. 647).
7. On 17 April 2003 the Lüleburgaz Criminal Court of First Instance ordered the suspension of the execution of the sentence.
8. On 20 December 2005 the public prosecutor’s office attached to the Court of Cassation remitted the case to the first-instance court for a reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005.
9. On 18 January 2007 the Lüleburgaz Criminal Court of First Instance convicted the truck driver under the relevant provisions of the former Criminal Code, which were more favourable in the circumstances. The execution of the sentence was once again suspended.
10. On 16 September 2010 the Court of Cassation quashed the judgment of the first-instance court, as the prosecution of the offence in question had become time-barred.
2. Civil proceedings
11. In the meantime, in 19 November 1999 the applicants had brought compensation proceedings against the truck driver, the General Directorate of Highways and the insurance company. All of the applicants requested non-pecuniary damages in connection with the death of Alp Özdemir. Two of the applicants (namely the victim’s parents İbrahim Özdemir and Sultan Özdemir) also requested pecuniary damages.
12. On 16 December 2003 the Beyoğlu Civil Court of First Instance ordered the payment of 28,109,376,692 Turkish liras (TRL)[1] (approximately 15,770 euros (EUR) at the material time) in respect of pecuniary damages jointly to the applicants İbrahim Özdemir and Sultan Özdemir, and TRL 16,000,000,000 (approximately EUR 8,975 at the material time) in non-pecuniary damages jointly to all applicants, plus interest running from the date of the accident.
13. The applicants appealed the judgment in connection with the non‑pecuniary damage award and the attorney fees; they did not object to the pecuniary damage award.
14. On 19 October 2005 the Court of Cassation upheld the judgment of the first instance court and on 11 April 2006 it dismissed the applicants’ rectification request.
COMPLAINTS
15. The applicants complained under Article 2 of the Convention that the truck driver, despite having been found guilty for Alp Özdemir’s death, had not been subjected to any punishment by the criminal court as the criminal proceedings had been discontinued for having become time‑barred.
16. Four of the applicants, namely İbrahim Özdemir, Sultan Özdemir, Gürsel Özdemir and Veysel Özdemir, also complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of the financial assistance they had been receiving from Alp Özdemir following his death.
THE LAW
A. Alleged violation of Article 2 of the Convention
17. The applicants argued that the truck driver who had been responsible for Alp Özdemir’s death had not been condemned by the criminal court, which had amounted to a violation of Article 2 of the Convention.
18. The Court notes that the basic principles concerning a State’s positive obligation to protect the right to life, 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 further elaborated on in Budayeva and Others v. Russia (nos. 15339/02 and 4 others, §§ 128-145, ECHR 2008 (extracts)). The Court recalls that the State’s positive obligation to protect the right to life has also been found to arise in the context of deaths resulting from traffic accidents (see, for instance, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007; Railean v. Moldova, no. 23401/04, § 30, 5 January 2010; Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011; Igor Shevchenko v. Ukraine, no. 22737/04, § 56, 12 January 2012; and Prynda v. Ukraine, no. 10904/05, § 50, 31 July 2012).
19. The Court further notes that in the event of serious injury or death, this duty to safeguard the right to life has also been found to require the State to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see, for instance, Dodov v. Bulgaria, no. 59548/00, § 83, 17 January 2008, and Ciechońska v. Poland, no. 19776/04, § 67, 14 June 2011). Although this obligation may require the provision of a criminal-law remedy in certain special circumstances (see, for instance, Öneryıldız, cited above, §§ 93-96; Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, §§ 104-106, ECHR 2013; Oruk v. Turkey, no. 33647/04, §§ 50 and 65, 4 February 2014; Mikhno v. Ukraine, no. 32514/12, § 131, 1 September 2016; Aydoğdu v. Turkey, no. 40448/06, §§ 62-64 and §§ 87‑88, 30 August 2016; and Gençarslan v. Turkey (dec.), no. 62609/12, §§ 19‑22, 14 March 2017), the Court stresses that neither Article 2 nor any other provision of the Convention guarantees an applicant a right to secure the prosecution and conviction of a third party or a right to “private revenge” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I, and Öneryıldız, cited above, § 147). The Court reiterates in that regard that where death results from negligence, for instance, the obligation under Article 2 may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see Ciechońska, cited above, § 66).
20. The Court notes that in the instant case, the domestic judicial authorities have established that the death of Alp Özdemir had been caused as a result of the negligence of the truck driver and that it had not been intentional. The Court has no reason to depart from that finding, which the applicants have not challenged. In these circumstances, while the Court acknowledges the shortcomings of 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 on the facts and could be satisfied if the applicants had at their disposal an effective civil-law remedy (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; Ciechońska, cited above, § 66; and Gençarslan, cited above).
21. The Court notes in this connection that the applicants made use of a civil remedy before the Beyoğlu Civil Court of First Instance, which court established the facts and the responsibility for the accident, including that of the General Directorate of Highways, and provided the applicants with some redress (see paragraphs 11-14 above). The Court notes that the applicants have not challenged the effectiveness of those civil proceedings for the purposes of Article 2 of the Convention, which are in any event outside the six-month time-limit.
22. Having regard to the foregoing, and to its decisions in similar cases (see, for instance, Sansal v. Turkey (dec.), no. 28732/09, §§ 46-51, 2 September 2014, and Kaya and Others v. Turkey (dec.), no. 67385/09, §§ 28-31, 24 May 2016), the Court considers that this part of the application is manifestly ill-founded and must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 1 of Protocol No. 1 to the Convention
23. The Court notes that a number of the applicants complained that they had suffered some pecuniary damages as a result of the death of Alp Özdemir, which had violated their property rights under Article 1 of Protocol No. 1 to the Convention.
24. The Court notes that it was open to all applicants to request pecuniary damages within the context of the compensation proceedings they had brought before the Beyoğlu Civil Court of First Instance to recover their alleged financial losses. The Court also notes, however, that only two of them lodged a claim for pecuniary damages with that court, and they did not challenge the sufficiency of the amount awarded by that court in their appeals before the Court of Cassation.
25. The Court therefore declares this part of the application inadmissible for non‑exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 July 2017.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Appendix İbrahim ÖZDEMİR is a Turkish national who was born in 1934, lives in Istanbul and is represented by T. Özdemir. Atilla ÖZDEMİR is a Turkish national who was born in 1965, lives in Istanbul and is represented by T. Özdemir. Gürsel ÖZDEMİR is a Turkish national who was born in 1974, lives in Istanbul and is represented by T. Özdemir. Nuran ÖZDEMİR is a Turkish national who was born in 1970, lives in Istanbul and is represented by T. Özdemir. Türkan ÖZDEMİR is a Turkish national who was born in 1967 and lives in Istanbul. Veysel ÖZDEMİR is a Turkish national who was born in 1980, lives in Istanbul and is represented by T. Özdemir. Sultan ÖZDEMİR is a Turkish national who was born in 1943, lives in Istanbul and is represented by T.Özdemir.
[1]. On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.
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