CASE OF SIDIKA İMREN v. TURKEY
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
4. The applicant was born in 1945 and lives in Ankara. 5. At the time of the events giving rise to the present application, the applicant’s daughter, Serpil İmren, worked as a secretary for a private company engaged in the trade of mineral oil, namely Kros Petrol Madeni Yağ Turizm İnşaat Emlak İth. İhr. San. Tic. Ltd. Şti (“the company”). On 18 December 2002, at approximately 8.30 a.m., a fire broke out at her workplace when one of her colleagues, M.Y., attempted to light the wood-burning stove used to heat the office area by pouring petrol onto it. Serpil İmren sustained serious injuries as a result of the fire. On 17 January 2003 she died at the hospital where she had been receiving treatment for her burns. 6. Upon being informed of the fire, three police officers arrived at the scene of the incident at approximately 9.30 a.m. on 18 December 2002. They prepared a report describing the state of the premises in the aftermath of the fire and a sketch map of the scene of the incident. 7. At 10.50 a.m. on the same day two police officers went to the hospital where the applicant’s daughter Serpil İmren had been taken for treatment. They reported that she was not in a condition to make a statement regarding the incident. 8. At 11 a.m. the police interrogated two suspects in relation to the fire, namely M.Y., Serpil İmren’s colleague who had apparently started the fire, and K.N.Y., who was the owner of the company for which Serpil İmren was working. M.Y described the incident as noted in paragraph 5 above. K.N.Y. stated that he had not been at the workplace at the time of the incident. 9. On 27 December 2002 the Ankara public prosecutor filed a bill of indictment with the Ankara Criminal Court of First Instance against M.Y. for starting a fire and causing bodily harm by negligence. 10. On the same day the Ankara public prosecutor delivered a decision not to prosecute in relation to K.N.Y. 11. On 1 April 2003 the Ankara Criminal Court of First Instance issued a decision of non-jurisdiction and transferred the case to the Ankara Assize Court. 12. In the meantime, inspectors from the Ministry of Labour and Social Security (“the Ministry”) initiated an investigation into the incident. According to their report dated 28 February 2003, the necessary precautions had not been taken at the relevant workplace to prevent and put out fires, such as training the employees in fire safety and the operation of woodburning stoves. Such training was particularly important bearing in mind that the company was engaged in the mineral oil business. 13. Relying on the inspectors’ findings regarding the lack of precautions necessary for the prevention of fires in the deceased’s workplace, on 18 April 2003 the applicant lodged a new complaint with the Ankara public prosecutor’s office against the owner of the company, K.N.Y. 14. On 26 May 2003 the Ankara public prosecutor issued an additional indictment against K.N.Y. for causing Serpil İmren’s death by negligence. 15. On an unspecified date the applicant joined the criminal proceedings as a civil party. 16. There is no information in the case file as to when the Ankara Assize Court started hearing the case. On 16 September 2003 the second hearing was held, during which the court heard the statements of the defendants and two prosecution witnesses. 17. At the third hearing held on 5 December 2003 the Ankara Assize Court heard three defence witnesses. It also ordered that an on-site inspection be carried out at the workplace on 23 February 2004 by courtappointed experts. It appears from the information in the case file, however, that the on-site inspection was carried out on 12 April 2004. 18. On 16 April 2004 the court-appointed experts issued their report, where they largely repeated the findings of the Ministry’s inspectors noted in paragraph 12 above. The experts concluded that M.Y. and K.N.Y. each bore 50 % responsibility for the incident. 19. On 19 April 2004 the Ankara Assize Court requested that the Forensic Medicine Institute issue a report examining whether a causal link existed between Serpil İmren’s death and the fire at her workplace. In a report dated 4 June 2004 the Forensic Medicine Institute confirmed that Serpil İmren had died on account of complications caused by the burns she had sustained during the fire. 20. In the meantime, on 6 May 2004 the Ankara Assize Court ordered the employer’s insurance company to provide the accident report prepared in the aftermath of the incident, along with photographs and any other documents relevant to the incident. On 9 July 2004 the insurance company submitted the requested documents. 21. Relying mainly on the reports issued by the court-appointed experts and the inspectors of the Ministry, as well as the report of the Forensic Medicine Institute, on 29 April 2005 the Ankara Assize Court convicted the defendants as charged and sentenced each of them to ten months’ imprisonment and a fine. The defendants appealed against this judgment. 22. On 1 May 2006 the public prosecutor’s office attached to the Court of Cassation remitted the case to the Ankara Assize Court for reassessment of the sentence in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. 23. On 17 November 2006 the Ankara Assize Court convicted the defendants once again as charged and issued the same sentence and fine. The defendants appealed against this judgment. 24. On 13 October 2008 the Court of Cassation quashed the Ankara Assize Court’s judgment of 17 November 2006. It found that the firstinstance court had to consider whether the procedure of suspension of pronouncement of judgments (hükmün açıklanmasının geri bırakılması) provided for in section 231 of the Code of Criminal Procedure (Law no. 5271), as amended on 6 December 2006, was applicable in the circumstances. 25. On 26 February 2009 the Ankara Assize Court convicted the defendants once again and sentenced them to the same term of imprisonment and fine as before. It held that the pronouncement of the judgment could not be suspended having regard, inter alia, to the nature of the offence and the gravity of the incident. The defendants appealed against this judgment. 26. On 27 December 2010 the Court of Cassation held that the criminal proceedings should be discontinued on the grounds that the prosecution of the offence in question had become time-barred. 27. On 18 July 2003 the applicant initiated proceedings against K.N.Y., the owner of the company for which her daughter had worked, before the Ankara 13th Labour Court (“the labour court”) requesting compensation in respect of pecuniary and non-pecuniary damage following her daughter’s death. 28. On 23 October 2003 the labour court dismissed the case, which it found should have been brought against the company for which the victim had worked rather than against K.N.Y. 29. On 5 November 2003 the applicant brought compensation proceedings before the labour court against the company in relation to her daughter’s death. 30. It appears from the information in the case file that during the three hearings held in April, June and October 2004, the labour court heard the parties’ witnesses (four witnesses in total). 31. At the hearing held on 25 September 2007 the applicant requested the appointment of experts to determine the defendant company’s responsibility for her daughter’s death. The labour court accepted that request and on 24 October 2007 it appointed three experts. 32. On 28 November 2007 the experts delivered their report, in which they found that the accused company and its owner, K.N.Y., bore 70 % and 5 % responsibility, respectively, for Serpil İmren’s death. According to the experts, the remaining responsibility lay with M.Y., who was not a party to the proceedings before the labour court. 33. Relying on the findings of the experts, on 3 March 2009 the applicant brought an additional compensation claim before the Ankara 7th Labour Court against K.N.Y. On 15 July 2009 the Ankara 7th Labour Court decided to join the case against K.N.Y. to the proceedings pending before the Ankara 13th Labour Court against the company. 34. Between 14 April 2004 and 28 December 2010 the labour court held twenty-three hearings. However, apart from those mentioned in paragraphs 30 and 31 above, the labour court did not take any procedural action during that period and decided to adjourn the case at the end of each hearing pending a judgment in the criminal proceedings. 35. At its first hearing following the termination of the criminal proceedings, which was held on 3 May 2011, the labour court ordered the appointment of an expert to determine the applicant’s pecuniary damage as a result of her daughter’s death. However, the expert was not officially appointed until 9 October 2012. 36. On 26 November 2012 the court-appointed expert delivered the report on the extent of the damage suffered by the applicant. 37. Between 8 February 2012 and 3 February 2014 the labour court held ten more hearings. It appears that six of those hearings were postponed pending information from the Social Security Institution (Sosyal Güvenlik Kurumu) concerning the benefits received by the applicant following her daughter’s death. 38. On 4 June 2014 the labour court delivered its judgment on the case. It rejected the applicant’s claims in respect of pecuniary damage, except for funeral costs in the amount of 1,306 Turkish liras (TRY) (approximately 455 euros (EUR)), plus interest (TRY 40 to be paid by K.N.Y. and the rest by the company). It granted her request in respect of non-pecuniary damage and ordered the payment of TRY 10,000 (approximately EUR 3,480), together with interest (TRY 1,000 to be paid by K.N.Y. and the rest by the company). 39. On 27 April 2015 the Court of Cassation upheld the judgment of the labour court. 40. It appears from the information in the case file that the applicant has not yet received payment of the damages ordered by the labour court. It also appears from the applicant’s undisputed allegations that during the time it took to reach a decision on her civil claim, the company had closed down and the damages ordered by the court against that company could therefore not be collected.