Individual Application 92/19
Press Release concerning the Judgment Finding a Violation of the Right to Life due to a Child’s Getting Injured by Touching the Transformer Panel
On 12 September 2019, the Second Section of the Constitutional Court found a violation of the right to life safeguarded by Article 17 of the Constitution in the individual application lodged by Selman Tumur and Others (no. 2015/18754).
The applicants are Selman Tumur (S.T.), born in 2011, and his parents. When he was only three years old, S.T. touched the open door of a transformer panel near their house and was exposed to electric shock, as a result of which he got injured. According to the provisional report issued, the applicant had sustained life-threatening injuries that could not be treated by a simple medical intervention. At the end of the investigation into the incident, the chief public prosecutor’s office issued a decision of non-prosecution. The applicant’s objection to the decision was dismissed.
The Applicants’ Allegations
The applicants claimed that their son’s right to life had been violated due to his having got injured seriously after being exposed to electric shock by touching the transformer panel, as well as due to the authorities’ failure to conduct an effective investigation into the incident.
The Court’s Assessment
In the present case, the investigation file contained no documents or findings concerning the construction date of the transformer panel –operated by an electricity distribution company– that caused the applicant to get injured when he was only three years old.
As the electric power generation and distribution is a hazardous activity, all organizations and technical devices serving this purpose must be placed in a safe manner in accordance with the requirements concerning the protection of the individuals’ life and physical integrity. Maintenance, repair and protection, as well as deactivation if necessary, of the buildings, technical equipment and other devices used in this scope fall within this obligation.
However, the public authorities must take into account children, mentally disabled persons and other persons in need of protection in their prediction of human conduct while carrying out hazardous activities and they must put into practice the appropriate administrative measures in due time.
The chief public prosecutor’s office immediately launched an investigation into the incident, and an expert report was issued, as well as the statements of the complainants, witnesses and suspects were taken within the scope of the investigation. However, the decision was rendered without investigating whether the said transformer panel had been built in accordance with the legal regulations and technical requirements as well as whether it had been inspected periodically, and with a mere reference to the statements of the suspects and to the role of the social events specified in the expert report.
The responsible authorities should be aware of the fact that the transformer panel, which clearly poses a serious danger to the physical integrities of the individuals, was easily accessible by the third parties. However, at this stage, it cannot be said that the said incident where the applicant had been injured seriously had resulted from a simple error of judgment or carelessness.
In view of the foregoing, solely ordering compensation against those who are responsible for explicitly endangering the lives of vulnerable persons who do not have ability to discern like adults, such as minors, will not be sufficient in terms of the State’s obligation to provide an effective judicial protection against such incidents. It should especially be emphasized that the judicial reaction of the State to the present incident is of importance in terms of the prevention of similar incidents.
It has accordingly been concluded that the action for compensation had no effect in the present application in terms of the exhaustion of legal remedies and the requirements for ensuring an effective judicial protection.
Consequently, the Court has found a violation of the right to life safeguarded by Article 17 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.