Individual Application 16/19
Press Release Concerning the Judgment Finding No Violation of the Right to Life As No Permission Was Granted for an Investigation Against Public Officers for Their Alleged Negligence After the Van Earthquake
On 17 January 2019, the Plenary of the Constitutional Court found no violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution in the individual application lodged by Mehmet Ali Emir and Others (no. 2014/16482).
Another earthquake took place in Van 16 days after the first earthquake which occurred in 2011 and as a result of which a large number of persons died. A hotel building located in the city centre of Van was destroyed by this earthquake, and 24 persons accommodating at the hotel –including the applicants’ relatives– were trapped in the wreckage and lost their lives.
The Van Chief Public Prosecutor’s Office initiated an ex-officio investigation into the incident. At the end of the investigation, the file whereby a decision of non-jurisdiction had been issued in respect of the relevant public officers was sent to the Chief Public Prosecutor’s Office at the Court of Cassation (“the Chief Public Prosecutor’s Office”) which consequently refused to process with the complaint on the ground that the allegations against the officers were not substantiated by documents. Upon the dismissal, by the Council of State without examination, of the challenge against this decision, some of the applicants lodged an individual application with the Court.
The Court found a violation of the obligation to conduct an effective investigation −the procedural aspect of the right to life− due to the decision not to proceed with the complaint that had been issued by the Chief Public Prosecutor’s Office. In compliance with the Court’s violation judgment, the Chief Public Prosecutor’s Office sought a permission for investigation against the public officers. However, the Ministry of Inferior refused to grant such permission.
The Chief Public Prosecutor decided to discontinue the proceedings without challenging the Ministry’s decision. Having been served the decision, the applicants raised a challenge which was not concluded for a long time. Therefore, some of the aggrieved parties lodged an individual application with the Court. Upon the applicants’ challenge, the Council of State decided to return the file to the Ministry of Inferior as the decision granting no permission for investigation had not been duly served on all the parties concerned. After the service procedure had been duly completed, the file was re-sent to the Council of State which consequently dismissed the challenge on the ground that “the act imputed to the public officers was not of a nature to require an investigation to be conducted against them”.
Besides, the Van Chief Public Prosecutor’s Office filed a criminal case against the hotel manager. It appears that the decision whereby the hotel manager was sentenced to imprisonment by the 2nd Chamber of the Van Assize Court for causing death and injury with malice is pending before the incumbent appeal court. The compensation actions brought by the applicants against the relevant institutions are also still pending.
The Applicants’ Allegations
The applicants maintained that their rights to life were violated on the grounds that no permission had been granted for an investigation against the public officers −who had allegedly failed to duly perform, following the first earthquake, the damage assessment surveys with regard to the hotel building demolished during the second earthquake in Van− and that the Court’s violation judgment had not been executed.
The Court’s Assessment
It is a requisite of the State’s positive obligation within the ambit of the right to life to determine whether there is any negligence on the part of public officers liable to take precautions for the protection of individuals’ lives and physical integrities and, in case of any negligence, to provide an efficient redress. The failure to fulfil this obligation may give rise to a violation of the obligation to conduct an effective investigation.
In its judgments of 17 September and 7 November 2013, the Court found a violation of the obligation to conduct an effective investigation, the procedural aspect of the right to life, as the Chief Public Prosecutor’s Office had decided not to proceed with the complaint. The main reason for the Court to find the relevant investigations ineffective was the decision not to proceed that had been rendered by the Chief Public Prosecutor’s Office. In finding a violation through these judgments, the Court took into consideration that the decision not to proceed had not contained any assessment which would reveal the actions and steps taken by the relevant authorities to carry out the damage assessment procedure and to prevent entry into damaged buildings and that it had also precluded examination by an appeal authority of the request for continuation of the investigation.
Regard being had to the reasoning of the violation judgments, it cannot be said that execution of these judgments necessitates granting of permission for investigation, or directly initiation of investigation, against those concerned. Besides, it cannot be inferred from these violation judgments that such an inquiry will be necessarily conducted by a public prosecutor.
It may be deemed sufficient for the duly execution of the violation judgments to revoke the decision not to proceed rendered by the Chief Public Prosecutor’s Office and to make an examination capable of revealing whether the public officers were at fault.
In the present case, after the Court’s violation judgments had been sent to the Chief Public Prosecutor’s Office for necessary action, a permission for investigation was sought from the relevant administrations. Thereupon, the Ministry of Inferior and the Prime Ministry had preliminary surveys carried out in order to establish what kinds of actions had been taken by the authorities to conduct damage assessment surveys and prevent entry into damaged buildings. In the light of the findings obtained as a result thereof, decisions were rendered with regard to the requests for permission for investigation, reserving the right to appeal.
It has been observed that the applicants’ challenges against the decisions granting no permission for investigation were rejected after examination; and that therefore, the violation judgments rendered by the Court were duly executed by the authorities. The question whether the conducted preliminary surveys were effective within the meaning of Article 17 § 1 of the Constitution has been discussed separately from the question whether the Court’s judgments were duly executed. In this regard, the applicants’ allegations concerning the non-execution of the Court’s judgment have been considered to be unfounded.
Preliminary survey is conducted for the purpose of determining whether there exists any tangible data which would necessitate initiation of a criminal investigation against civil servants and other public officers for the alleged offences imputed to them. In this respect, the procedure whereby permission for investigation is obtained must not be applied beyond the said purpose and in the manner that would impede the course of criminal proceedings, hinder the opportunity to carry out an effective investigation or provide criminal exemption for public officers.
In the present case, the applicants’ relatives died due to collapse of the hotel building during the second earthquake in Van. It must be primarily noted in this respect that as required by its obligation to protect lives, the State is to protect individuals’ lives and physical integrities and to take the necessary measures for preventing deaths and injuries, with regard to the disasters having occurred.
During the preliminary surveys conducted in the present incident, a comprehensive examination was made in respect of the alleged negligence of the public authorities. It was accordingly found out that the authorities had not failed to act but had promptly taken the necessary precautions to the extent permitted by their powers and duties; that they had warned the public, through a written announcement, not to enter into the damaged buildings; and that however, the second earthquake had taken place 16 days after the first one –a very short time to determine the damages having occurred− without the damage assessment process being completed yet. In the light of these findings, no permission for investigation was granted.
In the present case, it has been observed that the procedure whereby permission for investigation could be obtained was not applied beyond the purpose of revealing whether there was any tangible evidence requiring a criminal investigation and in the way that would impede the course of criminal proceedings, hinder the opportunity to carry out an effective investigation or provide criminal exemption for public officers. There was no situation hindering the use of appropriate means in determining negligence on the part of the public officers or precluding the relevant parties from bringing the negligent acts of the public officers, if determined, before judicial authorities.
Besides, it has been observed that the challenge against the Ministry of Inferior’s act granting no permission for investigation was concluded within a total period of nearly three years. It took a long time to conclude the challenge as the appeal authority remitted the case several times due to the Ministry of Interior’s failure to serve the decision granting no permission for investigation on all parties concerned.
It is obvious that the public authorities should have acted more diligently in duly completion of the service procedure and conclusion of the challenge; however, it has been concluded that the delay did not per se constitute a violation of the obligation to conduct an effective investigation.
Consequently, the Court found no violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution.