Individual Application

The Facts

The applicants’ relative E.Y., who was nine years old on the date of incident, had been residing in the Hüseyinoğlu Village of the Varto District of Muş. Together with his friends, he went to a single-storey derelict building made of reinforced concrete, which was located about five-hundred meters away from the village. He entered the building to tether his donkey. In the meantime, the donkey hit the wall and the building collapsed. E.Y. was trapped under one of the collapsed columns and died.

It has been understood that the building had been idle since its construction, as the public institutions and organizations had not used it.

The Varto Chief Public Prosecutor launched an investigation into the incident. The statements of the complainants and witnesses were taken, post-mortem examination and autopsy reports were issued, and on-site inspection, as well as, expert examination were carried out.

The Chief Public Prosecutor’s Office rendered a decision of non-prosecution on the grounds; that according to the expert reports, the deceased E.Y., who had entered the building together with a bovine animal, thereby causing the building’s collapse, died as a result of his own fault; that due the acts of the deceased and the persons destroying the building, no causal link could be established respecting the criminal liabilities of the PTT officers and the building contractor; and that there was no other person to whom fault might be attributed. In addition, it was concluded that there was no ground for a criminal action to be taken against the deceased’s mother for her not fulfilling her obligation of care and custody of her child.

The applicants’ petition against the decision of non-prosecution was dismissed by the Muş Magistrate Judge’s Office.

The applicants’ action for claim against the TRT as the owner of the building on the date of incident was also dismissed.

The 3^rd Civil Chamber of the Court of Cassation quashed the decision on the ground that the criminal liability and the liability for damages were subject to different principles and that a decision must be rendered on the basis of an expert report compatible with appellate court standard which establishes proportional fault and liability of the parties separately.

The proceedings were continued following the judgment of the Court of Cassation.

The Applicants’ Allegations

The applicants maintained that their relative’s right to life, their right to a fair trial, and their right to an effective remedy were violated on the grounds that the investigation against the suspects who had fault and negligence in the collapse of the building was ineffective. The applicants further alleged that as the persons who had responsibility in their relative’s death were not identified and punished, the prohibition of ill-treatment was also violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The right to life protected under Article 17 of the Constitution, taken together with Article 5 of the Constitution, imposes positive obligations on the State, besides the negative obligations.

Within the scope of its positive obligations, the State has a duty to protect the right to life of all individuals under its jurisdiction against the risks that may arise from the acts of the public officials, the other individuals and even the individual himself. The State must in the first place make deterrent and protective legal arrangements against the risks posed to the right to life. It must not confine itself to these arrangements and must also take the necessary administrative measures. This obligation of the State also includes its duty to protect the individual’s life from any danger, threat, or violence.

The positive obligations imposed on the State within the context of the right to life also encompasses a procedural aspect. This obligation requires the authorities to conduct an effective investigation capable of identifying those responsible and, if necessary, punishing them in cases of unnatural death. Such an obligation may be satisfied if an investigation, criminal, civil or administrative depending on the nature of the incident, is conducted.

The obligation to conduct an investigation into the deaths resulting from unintentional acts does not necessarily entail bringing a criminal action in every case. Nevertheless, if the public authorities fail to take necessary measures within their power despite being aware of the probable outcomes of a dangerous situation or if they act based on erroneous judgment or fault going beyond mere inattention, a criminal investigation must be initiated against those putting the individuals’ lives at risk even if the victims have resorted to other legal remedies.

In the present case, the collapsed building was a public property. The public authorities are liable to construct a building in compliance with technical requirements and in a safely manner. Afterwards, the public authorities are liable to have all kinds of maintenance and repair works of their buildings performed, to assess whether these buildings pose a threat to the protection of individuals’ lives and physical integrity and, if necessary, to tear down risky buildings.

It has been concluded in the present case that transmitter building, which was ordered to be constructed by a public institution contrary to the construction standards and which was not subsequently made subject to maintenance and repair process for not being in service, was left ruined; that the building posed a real and imminent threat to the lives of the residents, which could be foreseen by the public authorities; and that the public authorities failed to take any measure which may be reasonably expected from them in order to avoid such threat.

Considering that the relevant public authorities should have been aware that the building, which had been constructed contrary to the construction standards and revealed to pose a serious threat to the individuals’ physical integrities since its construction, was at risk of collapse from the beginning, it appears impossible at this stage to conclude that the complained death occurred as a result of mere erroneous consideration or inattention.

It is considered that compensation proceedings against those responsible for explicitly endangering the lives of  vulnerable persons, notably minors, would not be sufficient vis-à-vis the State’s obligation to ensure an effective judicial protection for such incidents. It is further concluded that judicial response by the State against this incident is also important for avoiding the occurrence of similar ones. Accordingly, it has been concluded that compensation proceedings have no bearing on the exhaustion of legal remedies with respect to the applicant in terms of the right to effective judicial protection.

For these reasons, the Constitutional Court found a violation of the right to life safeguarded by Article 17 of the Constitution and awarded a net amount of 40,000 Turkish Liras jointly to the applicants in respect of non-pecuniary damages which could not be redressed by merely finding a violation and re-opening of the proceedings.