BAŞKAYA v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
1. A list of the applicants is set out in the appendix. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 October 2003 the applicants’ son and brother, Celal Başkaya, who was a student at a public university in Konya at the material time (“Selçuk University”), drowned in the university’s Olympic swimming pool. 5. Soon after the incident police officers arrived at the swimming pool and examined the accident site together with the deputy manager of the pool, T.S. According to the information provided by T.S., Celal Başkaya was taken to the Konya Numune Hospital following initial medical assistance administered beside the pool. The police drew up a sketch map of the scene of the incident, showing that the victim had drowned in the middle of the pool, where the water depth was 220 centimetres. Another report prepared by the police on the same day indicated that a diabetic ID card had been found amongst the belongings recovered from victim’s changing room locker. 6. Still on 5 October 2003, the police questioned four suspects in respect of the incident: the lifeguards employed at the pool, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager of the pool, T.S. 7. B.Y. told the police that when he and his colleague, C.A., who had been positioned on the other side of the pool at the material time, noticed a person drowning in the middle of the pool, they jumped in and rescued him. When they first took him out, the young man was unconscious, but still had a pulse. They immediately performed the relevant first aid procedures with the assistance of the medical officer M.Ö., and ten minutes later an ambulance arrived and took the man to the hospital. B.Y. stated that it was only after the incident that they learned that the victim was diabetic. B.Y. also claimed that before sinking under water, the victim had not called for help in any way, nor had he made any movements suggesting that he was in danger of drowning. 8. The other three suspects, C.A., M.Ö. and T.S., gave similar statements to that of B.Y.’s. 9. On the same day, the police also questioned two eye witnesses, who gave statements along the same lines as the suspects. 10. The autopsy carried out on the same day confirmed the cause of death as drowning. 11. On 8 October 2003 the Konya public prosecutor’s office filed a bill of indictment with the Konya Assize Court against the two lifeguards, B.Y. and C.A., the medical officer at the pool, M.Ö., and the deputy manager, T.S., for causing the death of Celal Başkaya by their failure to take the necessary safety measures at the swimming pool. 12. The applicants joined the proceedings before the Konya Assize Court as civil parties not seeking compensation. In the petition which he submitted to the assize court, the first applicant, Haydar Başkaya (the victim’s brother), claimed that the lifeguards had failed to pay attention to his brother’s initial calls for help and had intervened too late. 13. Before the Konya Assize Court, the defendants repeated their previous police statements. The lifeguard C.A. informed the assize court that there had been approximately seventy-five to eighty people at the swimming pool at the material time. At the start of the proceedings, the defendants’ lawyer challenged the autopsy report as being incomplete, given that it had not been established during the autopsy whether the victim − who had suffered from diabetes mellitus − had died because he had lapsed into a diabetic coma in the swimming pool. The lawyer requested from the court another autopsy to establish whether he had died of diabetesrelated causes. The matter was brought before the Forensic Medicine Institute, which informed the assize court that blood samples taken after death would not be indicative of the glucose levels preceding death. 14. At the subsequent hearings the assize court heard statements from witnesses who confirmed that the victim knew how to swim and had drowned without making any noise or movements. The assize court also conducted an on-site examination of the university swimming pool in the presence of the defendants, the applicants’ lawyer, and two experts (one expert lifeguard and one physician from the Provincial Directorate of Youth and Sports). 15. In his report dated 10 December 2004 the expert lifeguard stated that according to the information in the case file the victim, who apparently knew how to swim, had drowned without any attempts to attract attention. There was, moreover, no evidence to suggest that the lifeguards had neglected their rescue duties in any way. In these circumstances, the expert found that there were no grounds to hold the lifeguards accountable in connection with the death of Celal Başkaya. 16. In his report dated 31 January 2005 the medical expert found that at the time of the incident there were two lifeguards and one medical officer on duty at the swimming pool, which showed that the necessary safety measures had been in place. The evidence in the case file suggested that the victim knew how to swim, that he had drowned without calling for help or showing any other signs of distress, and that the lifeguards had intervened as soon as they noticed the victim at the bottom of the pool. Without expressing any view as to whether the victim’s death had been related to his diabetes, the expert stated that strenuous physical activity could cause glucose levels to drop, which could in turn lead to loss of consciousness. If the victim had experienced such a hypoglycaemic attack while under water and had, as a result, lost consciousness, it was possible that the lifeguards or other people in the pool might not have realised right away that there was a problem. In the light of all this information, the medical expert stated that the defendants had no responsibility in connection with the victim’s death. 17. On 4 May 2005 the Konya Assize Court requested another expert report from the Istanbul Forensic Medicine Institute regarding the liability of the defendants in respect of the death of Celal Başkaya. 18. On 17 May 2005 the Forensic Medicine Institute rejected that request as being outside the scope of its duties. The Konya Assize Court therefore ordered another expert report from three experts on occupational safety. 19. In their report dated 30 September 2005 the experts on occupational safety made the following findings: – Considering that the victim knew how to swim, which was not contested, he must have experienced a health problem that caused him to lose consciousness and sink while halfway across the pool. – Although it was not possible to determine with any certainty what type of health problem had brought about his drowning, the victim was diabetic. The possible outcomes of hypoglycaemia caused by strenuous physical activity had been outlined in the medical expert’s opinion dated 31 January 2005 (see paragraph 16 above). – It therefore appeared that the victim had silently sunk to the bottom of the pool without calling for help or showing other signs of drowning as a result of his underlying medical condition. – Bearing in mind that the victim had been only one of the many swimmers in the pool, it could not be expected for the lifeguards to follow all the movements of all the swimmers at all times and to intervene despite the absence of any signs of distress. – In these circumstances, the lifeguards, who had intervened as soon as they noticed the victim at the bottom of the pool, could not be held accountable for the victim’s death. 20. Relying on all the evidence and the information in the case file, on 28 February 2006 the Konya Assize Court ordered the defendants’ acquittal. 21. The applicants appealed against that judgment. They objected in particular to the findings in the expert report issued by the physician on 31 January 2005. They also argued that the expert report of 30 September 2005 had not been made available to them. 22. On 16 March 2009 the Court of Cassation quashed the judgment of the first instance court and decided to discontinue the proceedings as the prosecution of the offence in question had become time-barred. This decision, which was deposited with the registry of the first-instance court on 28 May 2009, was served on the applicants on 3 June 2010. 23. The applicants alleged, without submitting any supporting documents, that the lifeguards had been discharged from their duties in the aftermath of the incident. This information was neither confirmed nor contested by the Government.