SECOND SECTION
DECISION
Application no. 78906/11
Gülşen ŞAN
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 15 November 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Gülşen Şan, is a Turkish national, who was born in 1956 and lives in Konya. She was represented before the Court by Mr M. H. Şenalp, a lawyer practising in Konya.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant’s son, G. Murat Üstel, participated in a kickboxing tournament on 26 and 27 January 2010 in Konya. On the second day of the tournament, he fell unconscious following a blow he received to his head and was hospitalised. On 31 January 2010 he lost his life at the hospital due to cerebral haemorrhage.
1. Criminal proceedings
4. Shortly afterwards, a criminal investigation was initiated into the incident by the Konya public prosecutor’s office. According to the expert report commissioned by the public prosecutor, a number of people involved in the organisation and the conduct of the tournament, including the representative of the Ministry of Youth and Sports in Konya, namely S.G., had been responsible for the death of the applicant’s son, as they had not observed certain rules set by the Kickboxing Federation during the tournament. The experts established that the applicant’s son had been accepted to participate in the tournament despite lacking the necessary qualifications to compete.
5. On the basis of the findings in the expert report, criminal proceedings were initiated against all suspects for causing death by negligence, except S.G., whose prosecution as a civil servant required the authorisation of the Konya Governor’s office pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials).
6. On 5 January 2011 the Konya Governor’s office refused to authorise the public prosecutor to initiate criminal proceedings against S.G. The applicant objected to that decision. On 14 April 2011 the Konya Regional Administrative Court dismissed the applicant’s objection.
7. In the meantime, following the refusal of the Konya Governor’s office to authorise the prosecution of S.G., on 14 January 2011 the Konya public prosecutor’s office issued a decision not to prosecute S.G. On 8 August 2011 the Seydişehir Assize Court dismissed the applicant’s objection to that decision.
2. Administrative proceedings
8. On an unspecified date the applicant brought compensation proceedings against the Ministry of Youth and Sports before the Konya Administrative Court in respect of her son’s death.
9. On 14 March 2012 the Konya Administrative Court found that the Ministry of Youth and Sports had been responsible for the death in question and ordered that Ministry to pay the applicant 10,000 Turkish liras (TRY) (approximately 4,250 euros (EUR) at the material time) in respect of pecuniary damage and TRY 25,000 (approximately EUR 10,600 at the material time) as non-pecuniary damage, together with interest.
10. On 15 September 2015 the Supreme Administrative Court quashed the judgment of the Konya Administrative Court, holding that the non‑pecuniary damage awarded by that court had been insufficient.
11. According to the information in the case file, the proceedings are still pending before the Konya Administrative Court.
COMPLAINTS
12. The applicant complained under Article 6 § 1 of the Convention that the representative of the Ministry of Youth and Sports, S.G., had not been prosecuted due to his status as a civil servant, despite having been responsible for her son’s death. In that connection, the applicant also complained under Article 14 that the procedure under Law no. 4483 governing the prosecution of civil servants created an inequality between private persons and civil servants.
THE LAW
13. The Court considers at the outset that the applicant’s complaints should be examined from the standpoint of Article 2 of the Convention alone.
14. 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)).
15. The Court notes in this connection that in the event of serious injury or death, the duty to safeguard the right to life under Article 2 requires 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).
16. The Court notes that in the instant case, the applicant does not claim that the death of her son had been caused intentionally or that the circumstances in which the death had occurred were such as to raise suspicions in that regard. Nor does she 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 her son 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).
17. In these circumstances, while the Court acknowledges that the failure to indict and 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 applicant had at her disposal an effective civil-law remedy capable of establishing the facts and the alleged responsibility of the authorities for the death of her son and enabling her to obtain redress, as appropriate (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; Ciechońska, cited above, § 66; and Gençarslan, cited above, §§ 19-22).
18. Turning to the facts before it, the Court notes that the applicant has in fact resorted to a civil remedy before the Konya Administrative Court against the administration which she held responsible for her son’s death, and she has not challenged the capacity of that court to provide her with a judicial remedy that satisfied the requirements of Article 2 of the Convention. The Court notes that the administrative court has duly established the responsibility of the administration for the death at issue and offered her some redress. While that judgment was eventually quashed by the Supreme Administrative Court, it had only been done so for the purpose of awarding the applicant a higher amount of non-pecuniary damage. The applicant has not, in any event, submitted any complaints regarding the administrative proceedings.
19. 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 applicant’s 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
Full & Egal Universal Law Academy