SECOND SECTION
DECISION
Application no. 64344/11
Ahmet TEMEL and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 30 September 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 June 2009 the applicants’ sons Esat Temel and Osman Şimşek, who were aged 16 and 15 respectively at the material time, lost their lives by drowning in the Batman river, after entering the river of their own accord.
5. The Batman public prosecutor’s office initiated an investigation into the accident on the same day. Accordingly, an incident report was prepared and a post-mortem examination was conducted on the bodies of the two victims, which confirmed the cause of death as drowning. On the same day the public prosecutor also questioned an eye-witness, M.S.K., who was a relative of the victims. M.S.K. told the public prosecutor that he had gone to the river that afternoon with the victims and some other family members. At some point Esat and Osman had left to use the toilet. When they did not return after twenty minutes, he started searching for them and noticed their clothes next to a large pit that had formed by the river. He asked two nearby fishermen to search for them in the pit. Following a search, the fishermen recovered the dead bodies of the applicants’ sons.
6. On 7 August 2009 the applicants filed a criminal complaint with the Batman public prosecutor’s office in connection with the incident, and requested the identification of those allegedly responsible for their sons’ deaths. In this connection they claimed that their sons had drowned as a result of reckless sand mining activities performed by a private company, TPK Engineering, in the Batman River, that had left deep pits in and by the river.
7. On 29 September 2009 the Batman public prosecutor’s office instructed the police to investigate the applicants’ allegations against TPK Engineering.
8. On 29 October 2009 the police took a statement from M.E., who was a shareholder of the company in question. M.E. confirmed to the police that his company engaged in sand mining activities in the Batman River under a licence obtained from the relevant State authorities. He also stated, however, that the deaths had occurred on the Batman side of the river, whereas TPK Engineering operated on the Diyarbakır side. He submitted a map indicating the coordinates of their area of operation, together with a copy of their mining licence.
9. Upon the instructions of the Batman public prosecutor’s office, on 16 November 2009 the police visited the scene of the accident again and prepared another incident report. That report confirmed that TPK Engineering carried out its activities on the Diyarbakır side of the river, and that there were two other companies, namely Hasman Beton and Okanlar Beton, who operated on the Batman side near the scene of incident.
10. Relying on all the information and evidence collected, on 26 November 2009 the Batman public prosecutor issued a decision not to prosecute in respect of M.E. of TPK Engineering. The public prosecutor held that the victims had drowned because they had jumped into the river despite not knowing how to swim. Accordingly, they had lost their lives as a result of their own recklessness, and no causal link could be established between their deaths and the sand mining activities performed by TPK Engineering in the Batman River.
11. On 16 December 2009 the applicants objected to that decision. They claimed that similar drowning incidents involving children occurred every summer on account of deep pits excavated in the river in a negligent manner by sand mining companies. Notwithstanding, the public prosecutor had neither carried out an on-site inspection to see if safety measures had been put in place by the river, nor had he taken steps to identify the company or companies engaging in sand mining around the place of incident. The decision not to prosecute had, therefore, been the result of an inadequate and perfunctory investigation.
12. On 19 January 2010 the Midyat Assize Court upheld the applicants’ objections and ordered the identification of the company or companies performing sand excavations at the scene of the incident. It also ordered the establishment, with the assistance of experts, of any measures taken by those companies to ensure public safety.
13. Accordingly, on 2 February 2010 an inspection was carried out at the site of the accident, with the participation of the Batman public prosecutor, police officers from the Batman Security Directorate, and the eye-witness M.S.K., who repeated his previous statement (see paragraph 5 above). In his inspection report the public prosecutor noted a number of sandpits by the river close to the scene of the incident, and ordered the police to identify the sand mining companies operating in the vicinity, as well as their exact areas of operation.
14. According to a report prepared on 4 February 2010, the police identified a total of five private companies engaging in sand mining around the site of the accident.
15. On 5 February 2010 the Batman public prosecutor’s office requested the Batman Special Provincial Administration (İl Özel İdaresi) to provide a list of companies who had been involved in sand mining activities in the Batman River at the material time, along with the licences and maps indicating their respective areas of operation.
16. On 15 February 2010 the Batman Special Provincial Administration provided a list of five companies, four of which had not previously been identified by the police, along with their licences indicating the coordinates of their areas of operation. The list also included a public company.
17. On 3 March 2010 the Batman public prosecutor took the statement of A.N., the owner of Hasman Beton, noted in paragraph 9 above. A.N. said that he had no direct knowledge of the accident, but that he had noticed from the photographs in the case file that the incident had occurred in an area that had been excavated some twenty to thirty years ago.
18. On 24 June 2010 the Batman public prosecutor ordered an expert report to determine whether the identified sand mining companies had any fault regarding the deaths of the victims.
19. In their report dated 27 August 2010, the experts (two civil engineers and one mechanical engineer) noted that there were many companies that had been engaging in sand mining activities along the Batman River for a very long time, and it was not possible to identify which one of them, if any, had dug and had then failed to close the pit in which the applicants’ sons had drowned. This was particularly the case, because these companies were known to carry out activities outside their authorised areas of operation, and there were also companies excavating sand in the area clandestinely. The experts therefore concluded that it was not possible to hold any one company liable in relation to the deaths at issue. They also noted that the applicants’ sons had decided, of their own free will, to swim in the pit and that they were at an age where they could appreciate the dangers of such an action.
20. Relying mainly on the findings of the experts, on 14 February 2011 the Batman public prosecutor delivered a decision not to prosecute in respect of M.E.
21. The applicants objected to that decision. They stressed that their sons had drowned in a sandpit which had been left uncovered by sand mining companies, contrary to the requirements of the relevant legislation. For that reason, both the sand mining companies operating in the area, and the State authorities responsible for monitoring and inspecting their activities had been liable for their sons’ deaths. The inadequate investigation conducted by the public prosecutor had not, however, shed light on any of these matters.
22. On 29 March 2011 the Midyat Assize Court rejected the applicants’ objections, holding that the deficiencies identified in its previous decision had subsequently been remedied by the public prosecutor’s office.
B. Relevant domestic law
23. All mining activities, including those involving sand mining, are governed by the Mining Act (Law no. 3213) and its implementing regulation (no. 25716), which regulate the operation, licensing, safety and inspection of mining activities.
24. In addition, the Occupational Health and Safety Act (Law no. 6331) and its implementing regulations, in particular Regulation no. 28762 on Health and Safety Signals, Regulation no. 28512 on Occupational Health and Safety Risk Assessment, and Regulation no. 28770 on Occupational Health and Safety at Mining Work Places, also provide for measures to ensure the safety of sand mining sites.
COMPLAINTS
25. The applicants complained under Article 2 of the Convention that the State authorities had been responsible for their sons’ deaths, as they had failed to duly inspect whether the sand mining companies operating around the Batman River had covered, or otherwise secured, the pits that they had dug alongside the river.
26. The applicants also complained under Articles 2 and 13 that the Batman public prosecutor, acting in allegiance with the State authorities, had not taken the necessary investigative steps to identify the authorities who had failed in their duties to inspect the mining activities at the place of incident, and had failed to conduct an effective investigation that was capable of holding accountable those responsible for the deaths. The applicants argued that the public prosecutor had thus misused his powers, which in turn amounted to a violation of Article 17 of the Convention.
27. The applicants maintained under Article 3 that they had suffered great stress on account of the deaths of their sons and of the failure of the judicial authorities to bring those responsible to justice.
28. The applicants lastly claimed under Article 14 that the aforementioned violations of their rights had been a result of the respondent State’s discriminatory practices against its citizens of Kurdish ethnic origin.
THE LAW
A. As regards the application lodged by Mr Ahmet Şimşek
29. According to the information provided by the Government, the applicant Mr Ahmet Şimşek died on 21 January 2014, after lodging the present application. However, his heirs did not indicate their wish to continue the application in respect of his complaints.
30. The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the application inasmuch as it concerns the complaints made on behalf of Mr Ahmet Şimşek (see, amongst others, Dinçer and Others v. Turkey, no. 10435/08, §§ 13-14, 3 November 2011).
31. In view of the above, it is appropriate to strike the case out of the list pursuant to Article 37 § 1 (c) of the Convention insofar as it relates to Mr Ahmet Şimşek.
B. As regards the alleged violation of Article 2 of the Convention
1. The parties’ arguments
32. The applicants complained under Article 2 of the Convention that the State authorities had been responsible for the deaths of their sons on account of their failure to inspect the safety of the sand mining activities carried out by private companies along the Batman River. They further claimed under Articles 2, 13 and 17 that the Batman public prosecutor’s office had failed to conduct an effective investigation into the incident, and that it had purposefully refrained from taking any action against the responsible State authorities.
33. The Government claimed that since the present case did not involve an intentional infringement of the right to life, a claim for compensation before the administrative and/or civil courts would have been fully capable of establishing the facts and responsibility for the accident, and providing adequate redress. Since the applicants had not brought such proceedings, their complaints under this head had to be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. They also claimed that, for the same reason, the complaints concerning the criminal proceedings were incompatible ratione materiae with the provisions of the Convention, as criminal-law remedies were not required in the circumstances according to the Court’s case-law under Article 2.
34. The applicants responded that they were prevented from bringing compensation proceedings as claimed by the Government on account of their financial difficulties.
2. The Court’s assessment
35. The Court considers at the outset that the applicants’ complaints under this head should be examined from the standpoint of Article 2 of the Convention alone, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
36. The Court notes in this connection that the applicants’ sons had lost their lives by drowning in a river. The applicants did not argue that their sons had been killed intentionally, nor did they suggest that there had been any suspicions in that regard. The present case, therefore, concerns the non‑intentional infringement of the right to life.
37. Having regard to the approach adopted in previous cases involving non-intentional infringements of the right to life, the Court reiterates that the positive obligations under Article 2 of the Convention require States to adopt in this context regulations for the protection of people’s safety in public spaces, and to ensure the effective functioning of that regulatory framework (see Ciechońska v. Poland, no. 19776/04, § 69, 14 June 2011).
38. The applicants in the instant case did not complain about the absence of a legislative or regulatory framework governing sand mining activities, or of a structural deficiency resulting from a malfunctioning of the relevant framework framework (see, for instance, Aydoğdu v. Turkey, no. 40448/06, §§ 62-64 and §§ 87‑88, 30 August 2016). They rather complained that the State authorities had failed in their inspection duties arising from that regulatory framework.
39. The Court observes that soon after the incident, the Batman public prosecutor initiated an investigation into the deaths of the applicants’ sons of his own motion. However, this investigation focused solely on identifying the private sand mining companies operating around the scene of incident, and did not in any way seek to establish the alleged responsibility of the competent State authorities in connection with the deaths. The Court therefore considers that the criminal investigation was incomplete in that respect.
40. The Court also notes, however, that where death results from negligence, as in the instant case, the obligation under Article 2 to provide an effective independent judicial system may be satisfied if the legal system affords the victims a remedy in the civil and/or administrative courts, either alone or in conjunction with a remedy in the criminal courts (see Ciechońska, cited above, § 66). It is only in exceptional circumstances – that involve a level of negligence that goes beyond a mere error of judgment or carelessness – that a criminal-law remedy would be required in such cases involving a non-intentional infringement of the right to life (see, for instance, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII, where the authorities, despite knowing about the imminent danger posed by a rubbish dump, had failed to respond with due regard to protection of the right to life; see also 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; and Sinim v. Turkey, no. 9441/10, §§ 62 and 63, 6 June 2017). The applicants in the instant case have not, however, provided any evidence or arguments to suggest that the present case involved such similar circumstances calling for a criminal-law response.
41. The Court therefore considers that even assuming that the criminal proceedings at issue had been deficient as alleged by the applicants, the aforementioned obligation under Article 2 could still be satisfied in the instant case by way of an administrative law remedy capable of establishing the facts and the responsibility of the State authorities for the accident, and enabling them to obtain redress, as appropriate (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 73, 24 May 2011; Ciechońska, cited above; and Gençarslan v. Turkey (dec.), no. 62609/12, §§ 19-22, 14 March 2017). In the Court’s opinion, an action for compensation before administrative courts against the responsible State authorities would not only be capable, but perhaps also more suitable, to provide the applicants with an adequate redress. That is because omissions such as those alleged in the present case are more likely to result from a combined failure of a number of officials, whose individual liability does not necessarily attain the gravity required for a criminal conviction, especially if those omissions have been ongoing for some time as appears to have been in the instant case (see, mutatis mutandis, Budayeva and Others v. Russia, nos. 15339/02 and 4 others, § 112, ECHR 2008 (extracts)).
42. The Court notes that in the instant case, the applicants did not bring their claims against the relevant State authorities before administrative courts, arguing that they lacked the financial means to bring such action. They did not, however, explain why they could not seek legal aid from the administrative courts.
43. In the light of the foregoing, and of its decisions in similar cases involving non-intentional infringements of the right to life (see, for instance, Hafikli v. Turkey (dec.), no. 13394/12, 30 August 2016, and Uykur v. Turkey (dec.), no. 22879/10 and 2 others, §§ 20-25, 4 July 2017), the Court considers that the applicants did not pursue the available remedies relevant to their substantive complaints under Article 2 of the Convention. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.
44. Having already established the non-intentional nature of the deaths at issue, and the failure of the applicants to seek remedies outside the criminal-law context, the Court finds that the applicants’ complaints concerning the inadequacy of the judicial response in the aftermath of the incident are manifestly ill‑founded and must also be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention (see, for instance, Sansal v. Turkey (dec.), no. 28732/09, §§ 42-51, 2 September 2014, and Aktaş v. Turkey (dec.), no. 9054/13, §§ 22-30, 19 December 2017).
C. The remaining complaints
45. The Court notes that the applicants also complained of violations of Articles 3 and 14 of the Convention. In the light of all the material in its possession and its findings under Article 2 above, the Court finds that the applicants’ allegations under those provisions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the case out of its list of cases insofar as it concerns Mr Ahmet Şimşek;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 21 June 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Appendix
Ahmet TEMEL is a Turkish national who was born in 1965, lives in Batman and is represented by İ. Çeliker Ahmet ŞİMŞEK was a Turkish national who was born in 1957, lived in Batman and was represented by İ. Çeliker Emine ŞİMŞEK is a Turkish national who was born in 1964, lives in Batman and is represented by İ. Çeliker Hayal TEMEL is a Turkish national who was born in 1972, lives in Batman and is represented by İ. Çeliker
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