Communicated on 4 May 2017
SECOND SECTION
Application no. 2302/12
Ömür ÖZTEKİN and Ayfer ÖZTEKİN
against Turkey
lodged on 10 November 2011
SUBJECT MATTER OF THE CASE
The application concerns the death of the applicants’ six year-old daughter in July 2002 following the collapse of a concrete sewage pipe on her at an allegedly unguarded sewage construction site belonging to the Municipality of Yatağan (“the Municipality”). In the aftermath of the incident, criminal proceedings were initiated against certain individuals from the private construction company to which the construction work had been outsourced, but no action was taken against any officials from the Municipality. The criminal proceedings were eventually discontinued in December 2010 for having become time-barred. In the meantime, in July 2010 the applicants had brought compensation proceedings against the Municipality, the private construction company and a number of persons in charge of the construction work. However, the applicants’ compensation request was dismissed for having been lodged outside the statutory time‑limit.
The case raises issues under Article 2 of the Convention as to whether the State authorities had fulfilled their positive obligations to provide the applicants with an adequate judicial response in the aftermath of their daughter’s death. Since the case involves a non-intentional death that appears to have resulted from negligence, the main discussion in the case will revolve around the effectiveness of the compensation proceedings, in particular as to whether the time-limit rules had been applied unreasonably to deny the applicants access to the civil court.
QUESTIONS tO THE PARTIES
1. Has the applicants’ daughter’s right to life, ensured by Article 2 of the Convention, been violated in the present case?
2. Did the respondent State comply with its positive obligations under Article 2 of the Convention by providing the applicants with a remedy capable of establishing the facts surrounding the death of their daughter, holding accountable those at fault for the death and providing appropriate redress (see, for instance, Ciechońska v. Poland, no. 19776/04, § 66, 14 June 2011)? In particular;
i) Were the applicants unduly denied access to the remedy before the Yatağan Civil Court of First Instance?
ii) Was the manner in which the Yatağan Civil Court of First Instance calculated the statutory limitation period in the instant case foreseeable? In particular, did the applicants’ compensation claims qualify for an extended criminal-law time-limit as envisaged under Article 60 § 2 of the former Code of Obligations and, if so, was it foreseeable that the civil court would apply the time-limit set out in the former Criminal Code (Law no. 765) for the offence of causing death by negligence, as opposed to the longer time‑limit set out in the new Criminal Code (Law no. 5237) for the same offence?
The parties are requested to submit sample decisions of the Court of Cassation regarding the interpretation and application of the time-limit rule set out in Article 60 of the former Code of Obligations in cases where the tortious act that is the subject matter of the compensation claim also constitutes a criminal offence. In this connection, they are requested to indicate whether the compensation claim may become time-barred while the criminal proceedings regarding the same offence are still ongoing.
They are also requested to clarify, again with examples from the domestic case law, how the criminal limitation period is determined for purposes of compensation proceedings where the old and the new Criminal Codes envisage different time-limits for the same offence, as in the instant case.
Lastly, the Government are requested to submit a copy of the criminal case file.
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