Communicated on 22 May 2017
SECOND SECTION
Application no. 41747/10
İbrahim IŞGIN
against Turkey
lodged on 11 June 2010
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s electrocution in 2005 at the hotel where he was working as a waiter, which incident left him severely disabled. The criminal proceedings initiated into the incident were discontinued in 2012, as the prosecution of the relevant offence had become time‑barred. The compensation proceedings that the applicant brought against the (private) employer company for the accident resulted in the award of a substantial amount of pecuniary and non-pecuniary damages (approximately 175,000 euros (EUR) in total, plus interest running from the date of incident). It appears, however, that the applicant has not yet been able to receive the said amount, despite the enforcement proceedings he has brought against the employer company.
The principles concerning the Contracting States’ positive obligations under Article 2 to protect the right to life are equally applicable to serious interference with the right to physical integrity falling within the scope of Article 8 of the Convention (see Trocellier v. France (dec.), no. 75725/01, 5 October 2006; Codarcea v. Romania, no. 31675/04, § 103, 2 June 2009; and S.B. v. Romania, no. 24453/04, § 70, 23 September 2014). The case therefore raises issues under Article 8 of the Convention as to whether the judicial response in the aftermath of the accident had been effective, particularly as regards the capacity of the judicial apparatus to provide adequate civil redress to the applicant, having regard to his apparent inability to secure the enforcement of the relevant civil court judgment granting him damages.
QUESTIONS tO THE PARTIES
1. In the light of all the circumstances of the case, was the applicant a victim of a violation of Article 8 of the Convention on account of the alleged infringement of his right to physical integrity?
2. Did the respondent State comply with its positive obligations under Article 8 of the Convention by providing the applicant with an effective remedy to establish any liability for the physical injury he had sustained at his work place and to obtain civil redress for his injury as appropriate (see, mutatis mutandis, Trocellier v. France (dec.), no. 75725/01, 5 October 2006; Codarcea v. Romania, no. 31675/04, § 103, 2 June 2009; and S.B. v. Romania, no. 24453/04, § 70, 23 September 2014)? In particular;
i. Has the applicant been able to receive the pecuniary and non‑pecuniary damages ordered by the Kemer Civil Court of First Instance on 4 December 2008? If not, has the applicant instituted enforcement proceedings against the employer company to recover the judgment debt and, if so, have the enforcement proceedings been conducted diligently? Are there any other steps that the applicant could have been reasonably expected to take to secure the enforcement of the judgment of the Kemer Civil Court of First Instance?
ii. Has the employer company in question ceased its commercial activities unlawfully after the accident at issue (ticareti terk suçu)? If so, have all reasonable measures been taken against that company and its directors, including those envisaged under the Enforcement and Bankruptcy Act (Law no. 2004), to hold them accountable to their debts?
iii. Could the remedy before the Kemer Civil Court of First Instance be considered to have been effective in practice having regard to the applicant’s alleged inability to enforce it for an extended period of time?
The Government are requested to provide the Court with a copy of the file pertaining to the enforcement proceedings initiated by the applicant, if any.
If no payment has yet been made to the applicant, the Government are requested to provide the Court with an official document issued by a competent State authority indicating the current amount of the pecuniary and non-pecuniary damages due to the applicant, together with interest.
The parties are also requested to provide the Court with the following information and documents:
- Has the judgment of the Kemer Civil Court of First Instance dated 4 December 2008 (2006/135 E., 2008/429 K.) been upheld by the Court of Cassation? If yes, the parties are requested to provide the relevant decision of the Court of Cassation.
- Has the applicant appealed against the judgment of the Kemer Criminal Court of First Instance dated 5 November 2012 (2011/314 E., 2012/594 K.)? If yes, the parties are requested to inform the Court of the developments in the criminal proceedings and to submit the relevant documents.
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