CASE OF İLBEYI KEMALOĞLU AND MERIYE KEMALOĞLU v. TURKEY
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
4. The applicants were born in 1965 and 1974 respectively, and live in İstanbul. They are the parents of Atalay Kemaloğlu, who died in 2004, when he was seven years old. 5. On 22 January 2004 Istanbul was hit by a heavy snow storm. Consequently, upon the instructions of the Ministry of Education, schools in Istanbul broke up for the winter beak a day earlier than scheduled. On that day, Atalay had gone to his primary school on the municipality’s shuttle, which travelled between his home and the school. After the school bulletins had been distributed, classes were dismissed at the beginning of the afternoon, before the normal school day was over. 6. According to the information in the case file, Atalay had not enrolled for the paid school bus, but was using the shuttle that was operated for free by the municipality. As the early dismissal of the classes had not been notified to the municipality, the shuttle did not come when the school was closed. Atalay therefore tried to walk back home, which was 4 km away from his school. Late in the afternoon, when he did not return from school, the applicants called the police. However, it was not possible to find Atalay. His body was found the following day, frozen near a river bed. 7. Following the incident, the Primary School Inspectors’ Presidency of the Istanbul Education Directorate (İstanbul Valiliği İl Milli Eğitim Müdürlüğü İlköğretim Müfettişleri Başkanlığı) initiated an investigation, during which the inspectors took the statement of the driver of the municipality’s shuttle. He explained that on the day of the incident he had taken seven students from their homes and had left them in front of the school. Every day, he took them back around 5.30 p.m. On that day, no one informed him that the school would be closed at 2.00 p.m. Therefore, when he went to the school, everyone had already left. The inspectors prepared a report on 27 January 2004 and found that the deputy headmaster of the school had been at fault for not informing the municipality about the early closure of the schools. On 18 February 2004 the Presidency concluded that the deputy headmaster of the school had been at fault for neglecting to inform the municipality’s shuttle service of the early dismissal of the classes. It accordingly decided to issue a warning to the deputy headmaster as a disciplinary sanction. 8. On 6 August 2004 the applicants filed two separate actions with the Istanbul Administrative Court against the Ministry of Education, Yenidoğan Municipality and Istanbul Municipality. Alleging that their son had lost his life due to the negligence of the domestic authorities, the first applicant requested 375,000,000,000 Turkish liras (TRL) (approximately 207,000 euros (EUR) at the time) and the second applicant TRL 324,000,000 (approximately EUR 188,000 at the time) covering both pecuniary and non-pecuniary compensation. They also requested legal aid for the court fees. 9. On 30 September 2004 the Istanbul Administrative Court requested the applicants to complete the case file by submitting relevant documents in support of their legal aid claim within one month. 10. In support of their legal aid claim, both applicants submitted to the Istanbul Administrative Court certificates from the office of the headman (muhtarlık) attesting to their indigence, certificates from the District Governor confirming that they did not own any immovable property and certificates indicating that they were in debt to the Tax Office. 11. On 8 June 2005 the Istanbul Administrative Court dismissed the applicants’ request for legal aid without giving any specific reasons. 12. Subsequently, on 8 August 2005 the applicants were notified that they were required to pay TRL 5,072,600,000 (approximately EUR 3,000 at the time) and TRL 4,384,100,000 (approximately EUR 2,600 at the time) respectively for the court fees within one month in order for the proceedings to be continued. 13. On 29 December 2005 the Istanbul Administrative Court decided to discontinue the proceedings as the applicants had failed to pay the relevant court fees. 14. In the meantime, on 27 February 2004 the applicants filed a criminal complaint with the Ümraniye Public Prosecutor against the school headmaster, the deputy headmaster and Atalay Kemaloğlu’s class teacher. On an unspecified date, pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) the Ümraniye Public Prosecutor referred the file to the Ümraniye District Governor’s office and requested authorisation to prosecute the accused persons. 15. On 16 April 2004 the Ümraniye District Governor refused to authorise the public prosecutor to initiate criminal proceedings against the school headmaster, the deputy headmaster and the class teacher, on the basis of a report prepared by the headmaster of the Ümraniye High School, who stated that no fault could be attributed to the accused persons. 16. On 13 May 2004 the applicants lodged an objection against the decision of the Ümraniye District Governor’s office. 17. On 25 June 2004 the Istanbul Regional Administrative Court annulled the decision of the Ümraniye District Governor and held that there was sufficient evidence in the case file to initiate criminal proceedings against the accused headmaster, deputy headmaster and class teacher. 18. Accordingly, on 4 October 2004 the Ümraniye Public Prosecutor filed an indictment with the Ümraniye Criminal Court against S.Ç (the deputy headmaster of the school), S.Ö. (Atalay’s class teacher) and Ö.Ö (the school headmaster), accusing them of misconduct in office under Article 230 of the former Criminal Code. The applicants joined the criminal proceedings as civil parties and reserved their right to claim compensation. 19. During the proceedings, the court heard the defence statements of the accused. Atalay’s class teacher, Ms S.Ö., maintained that a day before the incident she had told her students that their parents should be present on 22 January 2004 as school bulletins would be distributed. The court also obtained an expert opinion from a psychologist, who stated that a seven year old child could not be expected to find effective solutions when faced with extraordinary situations. In this connection, she stated that the child could not have foreseen the dangers he would face when he tried walking home alone in the heavy snow storm. 20. On 28 June 2006 the Ümraniye Criminal Court acquitted the accused persons of the charges against them. In its decision, the court held that the death of Atalay had not been the result of a deliberate action. The reasoning stated that there were 2,400 pupils in the school, and that it could not be considered reasonable to expect the school authorities to control where the pupils went after the classes were dismissed. The court further held that in order to conclude that there had been misconduct in office, the public officer had to have wilfully neglected performing his duty. According to the court, in the instant case the school authorities could not be reasonably expected to foresee that Atalay would be frozen to death on his way back home. The court also decided that it did not have jurisdiction to examine whether or not there had been a service-related fault (hizmet kusuru) in the circumstances of the present case. 21. On 11 November 2010 the Court of Cassation quashed the judgment of the Ümraniye Criminal Court, without examining the merits of the case, for procedural reasons, namely due to the absence of the signature of the court’s clerk on the minutes of a hearing which had been held on 2 February 2005. The case file was accordingly remitted to the Ümraniye Criminal Court. 22. On 13 May 2011 the Ümraniye Criminal Court once again acquitted S.Ç., S.Ö and Ö.Ö of the charges against them on the basis of the same reasoning as given in its previous judgment of 28 June 2006. 23. The appeal proceedings are still pending before the Court of Cassation. 24. A full description of the relevant domestic law regarding legal aid may be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007 25. In August 2004, the minimum wage in force was TRL 444,150,000 (approximately EUR 245 at the time) a month.