SECOND SECTION
DECISION
Application no. 64289/12
Eren ÖZÜTEMİZ and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 July 2017 as a Committee composed of:
Julia Laffranque, President,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 20 September 2012,
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. The applicants are the children and the former wife of Ali Özütemiz, who lost his life on 11 January 2011 in a traffic accident when his car crashed into a trailer parked on a bend in the road.
1. Criminal proceedings
4. Shortly after the incident, a criminal investigation was initiated. The Büyükçekmece public prosecutor’s office received three reports from different expert groups to determine the causes of the accident and to identify those responsible for it, including any public authorities. All expert groups agreed that the victim held the main responsibility for the accident on account of his failure to observe some basic traffic regulations, as he had been driving too speedily and under the influence of alcohol. Two of the reports, however, also found that the General Directorate of Highways, which was the authority responsible for the maintenance, repair and the operation of the road in question, had also been partly liable for the accident as they had failed to take sufficient measures to ensure the safety of the road, in particular by putting up traffic signs to warn drivers against the bend in the road.
5. On 20 September 2011, pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), the Büyükçekmece public prosecutor’s office requested authorisation from the Istanbul Governor’s office to prosecute H.G., a representative from the General Directorate Highways, for causing death by negligence.
6. On 24 November 2011 the Istanbul Governor’s office refused authorisation for the prosecution of H.G. Both the applicant and the Büyükçekmece public prosecutor objected to that decision. On 10 February 2012 the Istanbul Regional Administrative Court dismissed the objections.
7. Accordingly, on 4 April 2012 the Büyükçekmece public prosecutor’s office issued a decision not to prosecute H.G. On an unspecified date the Istanbul Assize Court dismissed the applicant’s objection to that decision.
2. Administrative proceedings
8. On an unspecified date the applicants brought compensation proceedings against the General Directorate of Highways before the Istanbul Administrative Court in respect of the death of Ali Özütemiz.
9. Relying on the expert reports submitted to the criminal case file, on 20 November 2014 the administrative court held that the General Directorate of Highways had been 25 % responsible for the accident. It awarded the first applicant Ecem Gül Özütemiz (the victim’s daughter) 244,871.75 Turkish liras (TRY) (approximately 87,626 euros (EUR) at the material time) in respect of pecuniary damage, and TRY 25,000 (approximately EUR 8,950 at the material time) as non-pecuniary damage, plus interest on both amounts. It also awarded the second applicant Eren Özütemiz (the victim’s adult son) TRY 25,000 in respect of non‑pecuniary damage, plus interest. However, it rejected the request of the third applicant Şadıman Baş (the victim’s former wife) for damages. The administrative court noted in particular in respect of her request for non‑pecuniary damage that she had obtained a divorce from Ali Özütemiz in 2004 and that the latter had subsequently remarried. Having regard to the absence of any apparent legal or de facto ties between the third applicant and the victim, her request for non‑pecuniary damage had been unfounded.
10. On 25 January 2016 the Supreme Administrative Court upheld the judgment of the Istanbul Administrative Court. On 1 December 2016 the Supreme Administrative Court refused the request for the rectification of its judgment.
COMPLAINTS
11. The applicants complained under Articles 2 and 6 § 1 of the Convention that the State authorities had failed to protect the right to life of Ali Özütemiz as they had omitted to take the necessary safety measures on the road where the car accident had taken place, but that the public officer who had been responsible for that omission had escaped prosecution on account of the special mechanism envisaged under Law no. 4483 for the prosecution of civil servants.
THE LAW
12. The Court considers at the outset that the applicants’ complaints should be examined from the standpoint of Article 2 of the Convention alone.
13. 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).
14. 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).
15. The Court notes that in the instant case, the applicants do not claim that the death of Ali Özütemiz had been caused intentionally or that the circumstances in which the death had occurred were such as to raise suspicions in that regard. Nor do they argue that the death had resulted from the inaction of the authorities in the face of a real and immediate risk to the life of Ali Özütemiz which they knew or ought to have known (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002‑II), that it had involved a dangerous activity occurring under the responsibility of the public authorities (see, for instance, Öneryıldız, cited above, § 93), or that it had been caused by negligence that went beyond a mere error of judgment or carelessness (see, for instance, Mehmet Şentürk and Bekir Şentürk, cited above).
16. In these circumstances, while the Court acknowledges that the failure to prosecute persons holding public office owing to a refusal by the administrative authorities to authorise such action has been found to raise an issue under Article 2 of the Convention in certain circumstances (see, for example, Asiye Genç v. Turkey, no. 24109/07, § 83, 27 January 2015, and M. Özel and Others v. Turkey, nos. 14350/05 and 2 others, § 198, 17 November 2015), it considers in the light of its case-law on non‑intentional infringements of the right to life that Article 2 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 capable of establishing the facts and the alleged responsibility of the authorities for the death of Ali Özütemiz and enabling them to obtain redress, as appropriate (see, for instance, Anna Todorova, cited above, § 73; Ciechońska, cited above, § 66; and Gençarslan, cited above).
17. Turning to the facts before it, the Court notes that the applicants made use of a civil remedy before the Istanbul Administrative Court, which court established the facts and the partial responsibility of the General Directorate of Highways for the accident, and provided the first and the second applicants with some redress as it saw appropriate in the circumstances (see paragraphs 9 and 10 above). The Court notes that the applicants have not challenged before it the effectiveness of those administrative proceedings for the purposes of Article 2 of the Convention, nor have any of them complained about the outcome of those proceedings.
18. Having regard to the foregoing, and to its decisions in similar cases involving non-intentional infringements of the right to life (see, for instance, Sansal v. Turkey (dec.), no. 28732/09, §§ 42-51, 2 September 2014), the Court considers that the applicants’ complaint is 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 7 September 2017.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Appendix
Ecem Gül ÖZÜTEMİZ is a Turkish national who was born in 1996 and is represented by R. Epözdemir Eren ÖZÜTEMİZ is a Turkish national who was born in 1990 and is represented by R. Epözdemir
3.Şadıman BAŞ is a Turkish national who was born in 1970 and is represented by R. Epözdemir
Full & Egal Universal Law Academy