DEMİR v. TURKEY
Inadmissible
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
1. The applicants, Mr Nurettin Demir and Mrs Çiçek Demir, are Turkish nationals who were born in 1976 and 1975 respectively and live in Manisa. They were represented before the Court by Mr C. Hüseyni, a lawyer practising in Manisa. 2. The Turkish Government (“the Government”) are represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 31 July 2002 the applicants’ three-year-old daughter Melisa, while walking with the second applicant, was severely injured and later died, after a rubbish container she had touched fell on top of her. 5. According to the post-mortem examination report, dated 1 August 2002, the cause of death was bleeding into the chest cavity (haemothorax), possibly resulting from the falling of a rubbish container on the deceased. A classic autopsy was not deemed necessary. 6. On the same day the first applicant gave a statement to the police in which he stated, inter alia, that if the incident was the result of negligence on the part of the Municipality then he wished to lodge a complaint. 7. On 6 August 2002 the second applicant gave evidence to the police. She submitted that while they were walking home from a visit, her daughter had grabbed the open metal lid of the rubbish container and the rubbish container had fallen on top of her. 8. On the same day the second applicant’s sister – an eye-witness to the events – also gave evidence along the same lines as the second applicant. 9. On 7 August 2002 two police officers inspected the area where the incident had taken place. They noted, inter alia, that the back wheels of the container were faulty and that the container had a tendency to fall backwards if the lid was pulled. 10. On 14 April 2003 the prosecutor heard evidence from Mr A.L., the municipal official responsible for rubbish containers, as a suspect. He maintained, inter alia, that he had been informed of the incident ten days after the events, that the municipality had given financial support to the family, and that the incident had been due to the applicants’ daughter pulling the lid of the rubbish container. 11. On the next day, 15 April 2003, the prosecutor filed a bill of indictment charging the second applicant and Mr A.L. with causing death by negligence. The charges were brought under Article 455 of the Criminal Code (no. 765). 12. Subsequently, criminal proceedings commenced before the Turgutlu Criminal Court of First Instance. 13. On 16 June 2003 the Turgutlu Criminal Court of First Instance conducted an on-site inspection. 14. On 4 July 2003 an expert report, prepared by Mr E.Ö., found that the degree of fault attributable to the second applicant for the death of the applicants’ daughter was 2/8, and it was 6/8 in respect of Mr A.L. The defendants objected to the report and a second expert report was commissioned by the court. 15. On 15 September 2003 a second expert report, prepared by one lawyer and two experts on job safety, held that no fault could be attributed to the accused as the responsibility lay with the Turgutlu Municipality, on the basis of the notion of service fault (hizmet kusuru), since the wheels of the rubbish container in question had been broken and it had been placed on an uneven surface. 16. On 25 February 2004 the Turgutlu Criminal Court of First Instance, on the basis of the expert report, acquitted the applicant of the charges against her. It also decided to halt the proceedings against Mr A.L. since no prior authorisation for his prosecution had been obtained, as required under domestic legislation. 17. On an unspecified date the prosecuting authorities requested the Turgutlu District Governor’s Office to grant authorisation for Mr A.L.’s prosecution. 18. On 11 November 2004 the Turgutlu District Governor’s Office, after a preliminary investigation, declined to grant the necessary authorisation for Mr A.L.’s prosecution. In its decision, the District Governor’s Office noted that under the provisions of the contract concluded between the Turgutlu Municipality and the Hastürkler limited company (the firm responsible for rubbish collection – hereinafter “the company”), it had been the responsibility of the company to repair the faulty container and to inform the municipal official with responsibility for rubbish containers about it. 19. On 8 December 2004 the Manisa Regional Administrative Court dismissed an objection by the prosecutor and upheld the decision of the Turgutlu District Governor’s Office. 20. On 7 February 2005 the prosecutor, noting that authorisation to prosecute Mr A.L. had been refused, decided not to prosecute him. 21. On 16 January 2004 the applicants had applied to the Turgutlu Municipality for compensation. Since no response was received, on 13 May 2004 the applicants brought an action for compensation in the Turgutlu Administrative Court against the Municipality. 22. On 1 July 2004 the first-instance court dismissed the applicants’ claim for compensation on the ground that they had submitted it too late (süre aşımı). In this connection, the court, referring to section 13 of Law no. 2577, noted that it should have been obvious to the applicants that the responsibility of the Municipality was engaged and therefore they should have applied to the relevant authority within a year of the death of their child. 23. On 9 February 2005 the Supreme Administrative Court, by a majority, upheld the judgment of the first-instance court. A request by the applicants for rectification of its judgment was also dismissed by the same court on 13 February 2006. On both accounts one judge dissented on the ground, inter alia, that the applicants had become aware of the fault of the municipality only on receipt of the expert reports, and that therefore they were within the applicable time-limits. 24. On 18 August 2006 the applicants lodged a criminal complaint with the Turgutlu public prosecutor’s office against Mr M.H., the authorised representative of the Hastürkler limited company, requesting that he be prosecuted and convicted for the death of their daughter. They submitted that nineteen months had elapsed since the prosecutor’s office had decided not to prosecute the municipal authorities and that no other steps had been taken since that time. In this connection, the applicants requested the prosecutor’s office to act without further delay as the statutory time-limit for trial in respect of the offence was approaching. 25. Mr M.H. gave evidence to the police on 6 December 2006, denying the allegations against him and claiming that the company was responsible only for collecting rubbish in and around the rubbish containers and nothing further. 26. In an indictment dated 13 May 2007 the Turgutlu Public Prosecutor charged Mr M.H. with causing death by negligence. The charges were brought under Articles 85 § 1, 22 and 50 § 4 of the Criminal Code. 27. On 21 May 2007 the criminal proceedings against the accused began before the Turgutlu Criminal Court of First Instance. 28. In the course of the trial the court heard evidence from the accused and the applicants, commissioned expert reports and conducted an on-site inspection. 29. The expert report prepared by Mr C.B., an inspector at the Labour and Social Security Ministry, concluded that the Municipality and the company responsible for collecting the rubbish were at fault. 30. On 14 September 2007 the applicants joined the proceedings as civil parties (müdahil). 31. On 5 December 2007 an expert report prepared by three engineers, experts on job safety, concluded that the second applicant was at fault to the degree of 4/8 for the death of the applicants’ daughter as she had not been diligent, the Municipality was at fault 2/8 for not conducting the necessary inspections, and Mr M.H. was at fault 2/8 for failing to replace the broken wheels of the rubbish container. 32. On 27 February 2008 the first-instance court, relying on the findings of the expert reports of 31 January 2007 and 5 December 2007, found that Mr M.H. was guilty as charged and sentenced him to two years’ imprisonment. This sentence was subsequently reduced to six months’ imprisonment and commuted to a fine. 33. On 16 September 2010 the Court of Cassation quashed the decision of the first-instance court and discontinued the proceedings against the accused on the ground that the prosecution of the offence had become timebarred under Articles 102 § 4 and 104 § 2 of the Criminal Code (no. 765) and Article 322 of the Code of Criminal Procedure. 34. On 30 July 2007 the applicants initiated compensation proceedings against the company on the ground that the latter was responsible for the death of their daughter. The first applicant requested 7,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 15,000 in respect of nonpecuniary damage. The second applicant requested TRL 8,000 in respect of pecuniary damage and TRL 15,000 in respect of non-pecuniary damage. The applicants further requested, on behalf of their remaining two children, TRL 5,000 in respect of non-pecuniary damage. They further requested the court to issue a temporary injunction banning the sale or transfer of the cars belonging to the company. 35. The company requested the court to dismiss the proceedings as they considered that no fault could be attributed to it. 36. On 1 August 2007 the compensation proceedings commenced before the Turgutlu Civil Court of First Instance. Regular hearings were held. The court examined the case-file of the criminal proceedings brought against the company representative and commissioned an additional expert report to examine the discrepancies between the expert reports contained in the casefile. 37. At a hearing on 9 October 2007 the first-instance court issued an injunction in respect of two cars belonging to the company. 38. On 18 July 2008 an expert report prepared by Mr Ö.T. concluded that both the Municipality and the company were 50% at fault. 39. On 30 July 2008 an expert report prepared by a lawyer was submitted to the court. This report concerned the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the expert report of 18 July 2008. 40. Another expert report prepared by three engineers, experts on job safety, concluded, on 15 December 2008, that the company was at fault in the circumstances of the present case. They considered that since the municipality had not been informed of the condition of the rubbish container, no fault could be attributed to it. The report further concluded that no fault could be attributed to the second applicant, as she had been holding the deceased’s hand at the time of the incident. 41. At a hearing held on 6 March 2009 the first-instance court decided to commission an additional expert report, as it considered the conclusions as to the attribution of fault in the earlier reports were divergent. 42. On 20 April 2009 an expert report prepared by three engineers, experts on job safety, was submitted to the court. That report concluded that the company was 25% at fault for not preventing its workers from misusing the containers, for not supervising the work, for the placing of the container on an uneven surface, and for the failure to inform the authorities about the broken wheel. It considered that Mr M.H. was 5% at fault for not ensuring general work discipline. The second applicant was 20% at fault for not preventing the child from touching the container, and the Municipality was 50% at fault for not placing the container on an even surface, for not ensuring the container did not overbalance when the lid was open, for not checking or prescribing and taking measures to prevent misuse of the container from causing harm, and for not checking whether the relevant work was being conducted in accordance with the provisions of the contract. 43. On 26 October 2010 an additional expert report was prepared by a lawyer, calculating the amount of pecuniary damage to be awarded to the applicants on the basis of the findings of the latest expert report. 44. On 5 October 2009 and 3 November 2009 the applicants requested the court to broaden the case so as to include Mr M.H. and the Municipality as co-defendants in the compensation claim. 45. On 3 November 2009 the first-instance court partially ruled in the applicants’ favour. It first held that the second applicant was at fault for letting her child get too close to a rubbish container in the middle of the night; the municipality was at fault for several reasons, such as not placing the bin on a proper surface, not ensuring that its lid was properly functional, and not checking whether the rubbish container posed a danger, or whether the company was abiding by its contractual obligations. It found that the company was at fault for various reasons, such as not enforcing work discipline, not preventing the misuse of its rubbish containers, and failing to monitor and inform the relevant authorities about faulty rubbish containers. It considered that the responsibility of the company for the incident was 25%. It thus awarded the first applicant TRL 3,319.56 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage, and the second applicant TRL 3,155.62 in respect of pecuniary damage and TRL 4,500 in respect of non-pecuniary damage. It further awarded TRL 1,500 in respect of nonpecuniary damage to each of the applicants’ surviving children. The court fixed the interest at the statutory rate applicable on 31 July 2002, the date of the incident. Finally, the court dismissed the applicants’ request for the broadening of the case to include Mr M.H. and the Municipality as codefendants, as no such procedure existed in domestic law. 46. The applicants appealed. 47. On 15 January 2010 the applicants commenced enforcement proceedings in order to claim the sums due, which amounted in total to TRL 53,671.49 at the time. The Government submitted correspondence between the enforcement office and various institutions, notably banks, concerning whether the company had any existing assets. According to the record prepared by Mr R.C., a deputy enforcement officer, on 16 February 2012 no movable or immovable property was registered under the name of the firm and the case-file was closed on 29 December 2011. 48. On 14 July 2011 the Court of Cassation rectified and upheld the decision of the first-instance court. 49. On 30 September 2011 the applicants initiated compensation proceedings against the Turgutlu Municipality. The latter raised the objection that the court was prevented from examining the case as the statutory time-limit had expired. 50. On 3 February 2012 the Turgutlu Civil Court of First Instance held that the statutory time-limit for examining a compensation claim arising out of a tortious act (haksız fiil) had expired. Referring to Article 60 of the Civil Code of Obligations, the court noted that the liability of the municipality as regards the events had been held to be 50% in the previous compensation proceedings, and thus the applicants had failed to lodge an application with the court against the Municipality within one year of the date on which they had learned of the damage and its perpetrator. 51. The relevant domestic law applicable at the time of the events is as follows. 52. Article 17 of the Constitution provides that everyone has the right to life. 53. Article 455 § 1 of the Criminal Code (no. 765) reads: “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.” 54. A prosecution for an offence punishable by a prison sentence of a maximum of five years must be brought within five years (Article 102 § 4 of the Criminal Code (no. 765)). 55. At the time of the incident, under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, was informed of a situation which gave rise to a suspicion that an offence had been committed was required to investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, the public prosecutor’s jurisdiction was restricted ratione personae at the preliminary investigation stage if the suspected offender was a State employee or public servant and the alleged offence had been committed during the exercise of official duties. Law no. 4483 (Law on the prosecution of civil servants and public officials) determined which authorities were empowered to give permission for a State employee or public servant to be prosecuted for an offence committed in the exercise of official duties and regulated the procedure to be followed. In such cases, it was for the competent authority (depending on the suspect’s status) to conduct a preliminary investigation and, consequently, to decide whether criminal proceedings should be opened. The decision given by the relevant authority could be challenged before the Supreme Administrative Court. A decision not to prosecute was automatically reviewed by that court. 56. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Under Article 85 § 1 of the new Criminal Code a person causing the death of another person by negligence was liable to a term of imprisonment of between two and six years. 57. Section 13 of Law no. 2577 (Code on Administrative Procedure) provides that persons who have suffered damage on account of a wrongful act of the administration must apply to the relevant authority for rectification of the situation within a year of the date on which they were notified or otherwise learned of the impugned act, before bringing a lawsuit. Should all or part of the claim be dismissed, or if no reply is received within sixty days, the victim may bring administrative proceedings. 58. Under the Code of Obligations (no. 818), anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53). 59. In civil law, the claim for damages must be initiated within one year of the date when the prejudiced party has received knowledge of the damage and of the person liable, but in any case within ten years of the date when the act which caused the damage took place (Article 60 of the Code of Obligations (no. 818)).