ÖZ v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
1. The applicant, Ms İmihan Öz, is a Turkish national who was born in 1960 and lives in Malatya. She was represented before the Court by Mr M. Eryaman, a lawyer practising in Ankara. 3. On 13 March 2007 the applicant’s son Murat Öz, a construction worker, fell from a scaffold while working on a private construction site and died shortly afterwards as a result of the injuries he had sustained. 4. Right after the incident, an investigation into the death of the applicant’s son was initiated. Accordingly, a report on the scene of the incident was prepared, witnesses were interviewed and the applicant’s son’s employers were questioned as possible suspects. The Ankara public prosecutor’s office also commissioned an expert report to establish the causes of the applicant’s son’s death, in particular to determine whether his employers bore any responsibility for the fall. 5. The expert report submitted to the Ankara public prosecutor’s office on 21 March 2007 found that the applicant’s son had been primarily responsible for his fall, on account of his failure to take the necessary precautions to ensure his safety on the scaffold, which he would have been expected to do as an experienced construction worker. It added, however, that the construction site managers and the civil engineer in charge were also responsible for the accident, as they had not set up a system of checks to ensure work safety on the construction site, and had not provided the deceased with sufficient training on safety measures, contrary to the requirements of the relevant legislation. 6. On 22 March 2007 the Ankara public prosecutor’s office filed with the Ankara Criminal Court of First Instance a bill of indictment against four people in charge of the construction site in question, for causing the applicant’s son’s death by negligence. The applicant joined the proceedings as a civil party. 7. On an unspecified date the Ankara Criminal Court of First Instance appointed a panel of three experts, with a view to determining liability for the death of the applicant’ s son. The expert report submitted to the criminal court on 15 February 2009 found that the scaffold from which the applicant’s son had fallen had not been sufficiently secured, and this was the responsibility of the construction site manager, L.K. Accordingly, the expert report established that L.K. bore the main responsibility for Murat Öz’s death. 8. Relying on that second expert report, on 14 October 2009 the Ankara Criminal Court of First Instance convicted L.K. of causing the applicant’s son’s death by negligence. However, it decided to suspend the pronouncement of the judgment, in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271). 9. Following the death of her son, the Social Security Institution started paying the applicant a monthly “survivor’s pension” in the amount of 424.95 Turkish liras (TRY – approximately 227 euros (EUR)) as of 1 April 2007, in accordance with the Social Security Act (Law no. 506). 10. In the meantime, an investigation had been initiated into the death of Murat Öz by the Social Security Institution, which concluded on 12 June 2008 that the accident which had claimed his life had been a “work-related accident”. 11. Following that decision, the Social Security Institution allocated the applicant a monthly “work-related accident pension” as of 13 March 2007 in the amount of TRY 175.22 (approximately EUR 90), in addition to the survivor’s pension she was already receiving. However, relying on sections 92(2) and 96(5) of the Social Security Act, which concerned the calculation of payments to persons entitled to several different types of pension, it recalculated the amount of the applicant’s survivor’s pension and reduced it to TRY 63.10 (approximately EUR 32). Moreover, the Social Security Institution asked the applicant to pay back the excess from the survivor’s pension she had been receiving up to that date. 12. On 16 March 2009 the applicant filed an action with the Ankara Labour Court against the Social Security Institution, arguing that the latter had erroneously interpreted the relevant sections of the Social Security Act on the calculation of benefits, and had thus miscalculated her survivor’s pension. 13. On 17 February 2010 the Ankara Labour Court allowed the applicant’s claim and ordered the Social Security Institution to pay her the benefits she was due retrospectively, together with interest. 14. On 3 June 2010 the Court of Cassation upheld the judgment of the Ankara Labour Court. 15. Below is a table of the monthly payments received by the applicant from the Social Security Institution following the death of her son, based on the documents she submitted to the Court: 16. In addition to the amounts noted above, the applicant received a lump sum payment of TRY 8,937.5 (approximately EUR 4,335 in December 2010) on an unspecified date in 2010, in accordance with the judgment of the Ankara Labour Court, to cover the past benefits of which she had been deprived owing to the erroneous calculations of the Social Security Institution.