SADAY v. TURKEY
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano
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. The applicants are the wife, children, parents and siblings of Orhan Saday, who died on 31 January 2008 as the result of an explosion in an unlicensed fireworks workshop operating in Zeytinburnu, a district of Istanbul. It appears that twenty other people lost their lives in the same explosion, and that some 115 people were injured. 5. On the same day the Bakırköy public prosecutor’s office initiated an investigation of its own motion into the incident. Accordingly, evidence was collected from the accident site, including photographic and forensic evidence, and an incident report was prepared. The Bakırköy public prosecutor’s office also commissioned two expert reports, one involving a chemical analysis of the substances collected from the accident site (“the first expert report”), and the other concerning the establishment of the circumstances of and responsibility for the explosion, including any responsibility on the part of any State officials (“the second expert report”). 6. On 4 February 2008 a lawyer from the Istanbul branch of the Contemporary Lawyers’ Association lodged a criminal complaint, in the name of that association, against various public officials in connection with the explosion. 7. The first expert report, which was added to the investigation file on 17 March 2008, concluded that most of the samples obtained from the accident site contained barium nitrate, a highly toxic and explosive chemical substance. 8. The second expert report was added to the investigation file on 31 March 2008. The report, which contained very detailed findings based on an examination of the forensic evidence and statements given to the police by a number of witnesses, found that – under the relevant regulations – the following persons and authorities had been responsible for the accident: - S.B., the owner of the workshop, had been 2/10 responsible for the explosion, on account of his failure to comply with various licensing and security requirements provided by the relevant legislation; - Istanbul Metropolitan Municipality and Zeytinburnu Municipality had each been 3/10 responsible, mainly on account of their failure to fulfil their respective licensing and inspection duties, as specified in the relevant legislation; - the electricity distribution company BEDAŞ (Boğaziçi Elektrik Dağıtım Anonim Şirketi) had been 1/10 responsible on account of having supplied electricity to a building which did not possess an occupancy permit; - the Ministry of Labour and Social Security had been 1/10 responsible, on account of having failed to inspect the workshop, in which uninsured workers had been employed. 9. Having regard to the findings of the experts and the criminal complaint lodged by the Contemporary Lawyers’ Association (see paragraph 6 above), and in compliance with the mechanism set out under Law no. 4483 (the Law on the Prosecution of Civil Servants and Public Officials) for the prosecution of civil servants, the Istanbul public prosecutor’s office sought authorisation from the competent authorities for the prosecution of a number of public officials. 10. After conducting its own examination into the matter, on 21 November 2008 the Istanbul Governor’s Office refused to authorise the prosecution of the former District Governor of Zeytinburnu (S.C.) and the Security Director of Istanbul (C.C.). It held that these authorities had been under no obligation to take action in respect of the workplace at issue, given that no irregularities had been brought to their attention by other organs, such as local municipalities, which had been responsible for inspecting that workplace. It appears that the applicants were not able to lodge an objection in respect of this decision, as it was not served on them. 11. On 15 September 2009 the Istanbul public prosecutor’s office issued a decision not to prosecute S.C. and C.C., in accordance with the decision of the Istanbul Governor’s Office. 12. On an unspecified date the applicants’ representative lodged another criminal complaint against S.C. and C.C. Referring to its previous decision of 15 September 2009, on 12 November 2009 the Istanbul public prosecutor’s office issued, once again, a decision not to prosecute. The applicants lodged an objection to that decision; this was rejected by the Beyoğlu Assize Court on 25 December 2009. 13. On 15 April 2011 the Ministry of the Interior – relying on the findings of an internal investigation (conducted by one of its own inspectors) into the respective responsibilities of the mayor of Istanbul Metropolitan Municipality (K.T.) and the mayor of Zeytinburnu Municipality (M.A.) in respect of the incident – decided not to grant permission for their prosecution. According to the findings of the Ministry inspector, the licensing and inspection of the workplace at issue had been outside the scope of the duties of Istanbul Metropolitan Municipality. Moreover, those officials from Zeytinburnu Municipality who had been responsible for the licensing and inspection of the workshop had indeed undertaken such an inspection, but since the owner had not declared that he was engaged in the production of pyrotechnic articles, such as fireworks, they had had no reason to take any measures against the workshop. The applicants lodged an objection against that decision. 14. On 25 November 2011 the Supreme Administrative Court dismissed that objection in so far as it concerned K.T., but it accepted it in so far as it concerned M.A., holding that under the relevant legislation, it was his municipality that had been responsible for licensing and inspecting the workplace in question. The Supreme Administrative Court therefore granted permission for his prosecution. 15. Accordingly, the Istanbul prosecutor’s office issued a decision not to prosecute in respect of K.T. Nevertheless, an investigation was launched by the Zeytinburnu public prosecutor’s office into whether or not M.A. had been responsible; that investigation resulted in a decision not to prosecute M.A. on account of a lack of evidence indicating negligence or misconduct on his part in connection with the incident. The applicants lodged an objection against that decision. 16. On 15 March 2012 the Istanbul Assize Court upheld that objection and annulled the decision not to prosecute M.A. 17. Upon receipt of the prosecution request from the Bakırköy public prosecutor’s office, an internal investigation was conducted at Istanbul Metropolitan Municipality into the responsibilities of current and former licence inspection directors of Istanbul Metropolitan Municipality (Y.P., F.K. and T.A.), which found that the licensing and inspection of the production of the explosive material in question was outside the scope of the duties of Istanbul Metropolitan Municipality. 18. Accordingly, on 16 January 2009 the Istanbul Governor’s Office refused to authorise the prosecution of Y.P., F.K. and T.A.; on 11 June 2009 the Istanbul Regional Administrative Court dismissed an objection lodged by the Bakırköy prosecutor’s office against that decision, as the objection had been lodged outside the statutory time-limit. 19. Following a request by the Bakırköy public prosecutor’s office for the prosecution of the Zeytinburnu Municipality personnel who had been in charge of the overseeing and inspection of the workplace at issue, the Zeytinburnu District Governor’s Office carried out a preliminary examination in respect of the following Zeytinburnu Municipality personnel: three zoning and urban development directors (Ş.Y., H.K. and S.K.); the licensing and inspection director (R.T.); the licence inspection and finance director (H.O.); and the municipal police director (F.K.). By a decision dated 30 December 2008, the Zeytinburnu District Governor’s Office decided not to grant permission for the prosecution of these individuals, on the grounds that they had not been at fault or been negligent in respect of the occurrence of the explosion. 20. The Bakırköy public prosecutor’s office lodged an objection against that decision; on 11 March 2009 the Istanbul Regional Administrative Court revoked the decision of the District Governor’s Office and granted permission for the prosecution of the persons in question. The Administrative Court held that there was enough material in the case file to justify an investigation into whether the Zeytinburnu Municipality personnel in question had been responsible for the explosion. 21. It appears from the submissions of the Government that the Bakırköy public prosecutor’s office also sought permission for the prosecution of A.T., the former director of the Istanbul Regional Labour Office, which was attached to the Ministry of Labour and Social Security. While the Istanbul Governor’s Office initially refused permission for the prosecution of A.T., that decision was subsequently overturned by the Istanbul Regional Administrative Court on 11 June 2010. 22. After obtaining administrative authorisation (idari izin) for the prosecution of the public officials in question, the Bakırköy public prosecutor’s office issued three separate bills of indictment in respect of the incident. 23. The first bill of indictment was filed on 28 October 2009 against the Zeytinburnu Municipality personnel Ş.Y., H.K., S.K., F.K. and R.T. (see paragraph 19 above), the owners of the building in question (Res. K. and Rem. K.), and H.A. (one of the employees of the workshop in question). All suspects were accused of causing death and bodily harm through negligence under Article 85 § 2 of the Turkish Criminal Code. The Zeytinburnu Municipality personnel were also accused of misconduct in office (görevi kötüye kullanma) under Article 257 § 1 of the Criminal Code. 24. The second bill of indictment was filed on 28 July 2010 in respect of A.T., the director of the Istanbul Regional Labour Office (see paragraph 21 above), under Articles 85 § 2 and 257 § 2 of the Criminal Code. 25. The third bill of indictment was filed on 29 June 2012 against M.A., the mayor of Zeytinburnu (see paragraph 16 above), under Article 85 § 2 of the Criminal Code. 26. The proceedings in respect of the incident were held before the Bakırköy Assize Court, which joined the three cases. During the course of the proceedings, statements from some eighty-five people were taken by the court as victims or complainants. The court also took many witness statements and examined all evidence collected during the preliminary investigation (such as photographs and video footage, autopsy reports, Forensic Medicine Institute reports, on-site examination reports, internal investigation reports issued by the public bodies concerned and other expert reports). It also ordered its own expert report from a group of experts consisting of six university professors and engineers, and also requested information and documents from all the public authorities concerned in relation to the circumstances that had led to the explosion at issue. 27. Relying on all the information and evidence before it, and having regard to the jurisprudence of the European Court of Human Rights on the matter (as established in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004XII), on 14 July 2014 the Bakırköy Assize Court delivered its judgment, which contained the following findings: - it found the Zeytinburnu Municipality personnel F.K. and R.T. guilty as charged and sentenced them each to seven years and six months’ imprisonment; - it found the Zeytinburnu Municipality personnel S.K. and Ş.Y. guilty as charged, sentenced them each to four years and two months’ imprisonment, and in both cases converted that sentence to a judicial fine of 30,400 Turkish liras (TRY) (approximately 10,535 euros (EUR) at the material time); - it found the Zeytinburnu Municipality employee H.K. guilty as charged, sentenced her to two years and six months’ imprisonment, and converted that sentence to a judicial fine of TRY 18,200 (approximately EUR 6,300 at the material time); - it found the building owners Res. K. and Rem. K. guilty as charged, and sentenced them each to five years’ imprisonment; - it acquitted the mayor of Zeytinburnu Municipality (M.A.) and the former director of the Istanbul Regional Labour Office (A.T.); and - it acquitted H.A., an employee of the workplace in question. 28. An appeal was lodged against the judgment of the Bakırköy Assize Court. According to the latest information in the case file, the appeal proceedings are still pending before the Court of Cassation. 29. On an unspecified date in 2008 the applicants brought an action for compensation in the Istanbul Administrative Court against the Ministry of the Interior, the Ministry of Labour and Social Security, Istanbul Metropolitan Municipality, Zeytinburnu Municipality and BEDAŞ. They requested a total of TRY 185,000 in respect of pecuniary damage and TRY 250,000 in respect of non-pecuniary damage. 30. Relying on the evidence in the criminal case file, together with an expert report that it commissioned to ascertain the damage incurred by the applicants, on 22 June 2011 the Istanbul Administrative Court found that Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been jointly and severally liable for the incident in question. It awarded the applicants TRY 138,203.35 (approximately EUR 59,950) in respect of pecuniary damage and TRY 180,000 (approximately EUR 78,000) in respect of non-pecuniary damage, plus interest. 31. On 26 September 2012 the Supreme Administrative Court quashed that judgment upon an appeal lodged by all parties. It held that while only Istanbul Metropolitan Municipality and Zeytinburnu Municipality had been found responsible for the incident, the information and documents in the case file suggested that the remaining three respondents had also been at fault. 32. On 28 January 2014 the Supreme Administrative Court dismissed a request lodged by all five respondents for the rectification of its decision. 33. The Istanbul Administrative Court ordered a new expert report to determine the respective liabilities of the respondents; the report found that all the respondents had been responsible for the accident to some degree. Accordingly, on 28 October 2015 the administrative court ordered the payment of the amounts it had previously determined (see paragraph 30 above) jointly and severally by the five respondents. 34. An appeal was lodged against the judgment of the Istanbul Administrative Court. According to the latest information in the case file, the appeal proceedings are still pending before the Supreme Administrative Court. 35. The relevant provisions of the Turkish Criminal Code are as follows: Article 85 “(1) Anyone who negligently causes the death of another shall be sentenced to a term of imprisonment of between two and six years. (2) If the act results in the death of more than one person, or injury to more than one person together with the death of one or more persons, the offender shall be sentenced to a term of imprisonment of between two and fifteen years.” Article 257 “(1) ... any public officer who secures an unjust financial benefit for another or causes any loss to the public or to an individual by acting contrary to the requirements of his office shall be sentenced to a term of imprisonment of between six months and two years. (2) ... any public officer who secures unjust financial benefit for another or causes any loss to the public or an individual through omission or delay in the performance of his duties shall be sentenced to a term of imprisonment of between three months and one year.” 36. Detailed information regarding Law no. 4483 on the Prosecution of Civil Servants and Public Officials may be found in the cases of M. Özel and Others v. Turkey (nos. 14350/05 and 2 others, § 133, 17 November 2015) and Aydoğdu v. Turkey (no. 40448/06, §§ 37-39, 30 August 2016).