CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juin 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sBB9EE52A { font-family:Arial } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sE208486F { font-family:Arial; color:#ff0000 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s61ED8A2B { width:14.36pt; display:inline-block } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .s3C38CC87 { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; text-align:left } .s5D5DC104 { width:5.51pt; text-indent:0pt; display:inline-block } .s1C3E62F1 { width:220.49pt; text-indent:0pt; display:inline-block } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .sC5F8DF84 { width:222.8pt; text-indent:0pt; display:inline-block } .sD86A583 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; text-align:left } .sD3CD5B59 { width:232.8pt; text-indent:0pt; display:inline-block } .s2A50FE6D { width:2.67pt; text-indent:0pt; display:inline-block } .s812A4BBF { margin-top:36pt; margin-bottom:30pt; font-size:14pt } .s4EDC3409 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s21DA24D5 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt } .s7BB60D65 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s7A3B44D7 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt } .sDCCC0E43 { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt } .s32E480FE { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s9922FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt } .sB99F6272 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:10pt } .s97B7A20 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s98FF0DB { font-family:Arial; font-size:8pt; vertical-align:sub } .sFE6327B5 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt } .s65BBF621 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; font-size:10pt } .s9C624E27 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; font-size:10pt } .s36433D38 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-after:avoid; font-size:10pt } .sD3338BAA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; font-size:10pt } .sAF0B4C7 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; font-size:10pt } .s2E81CF26 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; font-size:10pt } .s5EC407A5 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-after:avoid } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .sDDEC8B1D { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; page-break-after:avoid } .s4AD8A65C { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s498509A2 { margin-top:6pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB20C2835 { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .s2452CEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt } .s69A82CF5 { margin-top:36pt; margin-bottom:12pt; text-align:left } .s4B2E8EA9 { width:215.04pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     FORMER FIRST SECTION     CASE OF ÖNERYILDIZ v. TURKEY     (Application no. 48939/99)     JUDGMENT     STRASBOURG   18 June 2002     THIS CASE WAS REFERRED TO THE GRAND CHAMBER, WHICH DELIVERED JUDGMENT IN THE CASE ON 30 November 2004     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Öneryıldız v. Turkey, The European Court of Human Rights, sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mrs   W. Thomassen ,   Mr   Gaukur Jörundsson ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O'Boyle , Section Registrar , Having deliberated in private on 22 May 2001, 16 October 2001, 23   April 2002 and 27 May 2002, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   48939/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Ahmet Nuri Çınar and Mr   Maşallah Öneryıldız, on 18 January 1999. 2.     The applicants were represented by Ms Esra Yıldız, of the Istanbul Bar. The Turkish Government (“the Government”) were represented by their co-Agent, Mrs Deniz Akçay, assisted by Mrs   Gökşen   Acar, Counsel. 3.     Relying on Articles 2, 8 and 13 of the Convention and on Article 1 of Protocol No. 1, the applicants claimed that the national authorities were responsible for the death of thirteen members of their families and for the destruction of their property as a result of a methane-gas explosion which had occurred on 28 April 1993 in the municipal rubbish tip of Ümraniye (Istanbul). They complained further that the administrative proceedings conducted in the present case were incompatible with the requirements of fairness and speed set forth in Article 6 § 1 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     By a decision of 22 May 2001, the Court decided to disjoin the application and reserve the proceedings in so far as they concerned Mr   Ahmet Nuri Çınar, who had since died. It declared the application admissible with regard to the applicant, Maşallah Öneryıldız (“the applicant”), who had applied to the Court both on his own behalf and on behalf of nine members of his family, namely his wife, Gülnaz Öneryıldız, his concubine, Sıdıka Zorlu, and his children, Selahaddin, İdris, Mesut, Fatma, Zeynep, Remziye and Abdülkerim Öneryıldız, who had all died in the accident of 28 April 1993, which is the subject of the present application. 6.     On 14 September 2001 the applicant filed two documents: his supplementary observations and his claims for just satisfaction under Article 41 of the Convention. The Government filed observations on the merits of the case and on the claims for just satisfaction on 17 September and 12 October 2001 respectively. On 3   November 2001 the applicant replied to the Government's observations on the merits. On 10 October 2001 the Government sent the Registry copies of documents relating to a case on which they relied in support of their submissions. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 October 2001 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mrs   D. Akçay ,   co-Agent , Mrs   G. Acar , Mr   S. Karakul ,   Counsel ; (b)     for the applicant Mr   E. Deniz ,   Counsel , Mr   Ş. Acar ,   Adviser.   The Court heard addresses by Mr Deniz, Mrs Akçay and Mrs Acar. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant, who is a Turkish national, was born in 1955 and is now living in Çobançeşme (Alibeyköy, Istanbul). At the material time he and the twelve members of his family were living in the slum quarter ( gecekondu mahallesi ) of Kazım Karabekir in Ümraniye (Istanbul).     A.     The Ümraniye site for the storage of household waste 9.     Since the beginning of the 1970s a household-refuse tip had been in operation in Hekimbaşı, a slum area adjoining Kazım Karabekir. On 22   January 1960 an easement had been created de facto over the site in question, which belonged to the Forestry Commission (and therefore to the Treasury), in favour of Istanbul City Council (“the city council”) for a term of ninety-nine years. Situated on a slope overlooking a valley, the site spread out over a surface area of approximately 350,000 square metres and was used as a rubbish tip by the districts of Beykoz, Üsküdar, Kadıköy and Ümraniye under the authority and responsibility of the city council and, ultimately, the ministerial authorities. When the rubbish tip started being used, the area was uninhabited and the closest built-up area was approximately 3.5 km away. However, as the years passed, rudimentary dwellings were illegally built in the zone surrounding the rubbish tip, which ultimately developed into the slums of Ümraniye. B.     The steps taken by Ümraniye District Council 1.     In 1989 10.     Following the local elections of 26 March 1989 and from 4   December of that year Ümraniye District Council began dumping heaps of earth and rubbish onto the land surrounding the Ümraniye slums in order to redevelop the site of the rubbish tip. However, on 15 December 1989 M.C. and A.C. – two inhabitants of the Hekimbaşı area – brought proceedings against the district council in the Fourth Division of the Üsküdar District Court to establish title to land. They complained of damage to their plantations and requested the works to be halted. In support of their request, they produced documents showing that M.C. and A.C. had been liable for council tax and property tax since 1977 under tax no. 168900. In 1983 the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the property and land could be validated (see paragraph 50 below). Following their request, on 21   August 1989, the city council water and mains authority had ordered a water meter to be installed in their house. Furthermore, copies of electricity bills show that M.C. and A.C., as consumers, regularly paid for the water they had used on the basis of the readings taken from a meter installed for that purpose. 11.     In the District Court the defendant district council based its defence on the fact that the land claimed by M.C. and A.C. was situated on the waste-collection site; that residence there was contrary to the health regulations; and that their application for validation of their title to the property conferred no rights on them. In a judgment delivered on 2 May 1991 under case no. 1989/1088, the District Court found for M.C. and A.C., holding that there had been interference with the exercise of their right over the land in question. However, the Court of Cassation set the judgment aside on 2 March 1992. On 22 October 1992 the District Court followed the Court of Cassation's judgment and dismissed M.C. and A.C.'s claims. 2.     In 1991 12.     On 9 April 1991 Ümraniye District Council applied to the Third Division of the Üsküdar District Court for experts to be instructed to determine whether the rubbish tip complied with the relevant regulations, in particular Regulation no. 20814 of 14 March 1991 on solid-waste control. A committee was set up for that purpose, composed of a professor of environmental engineering, a land-registry official and a forensic doctor. According to their report, drawn up on 7 May 1991, the rubbish tip in question did not conform to the technical requirements set forth in Articles   24 to 27, 30 and 38 of Regulation no. 20814 and, accordingly, presented a certain number of dangers liable to give rise to a major health risk for the inhabitants of the valley, particularly those living in the slum areas:   no wall or fencing separated the tip from the dwellings situated fifty metres from the mountain of refuse, and the tip was not equipped with collection, composting, recycling or combustion systems; nor had drainage or drainage-water purification systems been installed. The experts concluded from this that the Ümraniye tip “exposed humans and animals and the environment to every form of danger”. In that connection the report, drawing attention first to the fact that some twenty contagious diseases might spread, underlined the following: “... In any waste-collection site methane, carbon-dioxide and hydrogen-sulphide gases, among others, form. These substances must be collected under supervision and ... burnt. The tip in question is not equipped with such a system, however. If methane is mixed with air in a particular proportion, it can explode. This installation contains no means of preventing an explosion of methane occurring as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. ...” On 27 May 1991 the city council was made aware of that report and on 7   June 1991 the governor was informed of it and asked to brief the Ministry of Health and the Prime Minister's Environmental Office (“the Environmental Office”). 13.     On 9 June 1991 Nurettin Sözen, the mayor of Istanbul, requested the report to be ruled inadmissible on the ground that it had been ordered and prepared without his knowing about it. 14.     However, the Environment Council, which had been advised of the same report on 18 June 1991, made a recommendation (no. 09513) urging the Istanbul Governor's Office, the city council and Ümraniye District Council to remedy the problems identified in the present case: “... The report prepared by the committee of experts indicates that the waste-collection site in question breaches the Environment Act and the Regulation on Solid-Waste Control and consequently poses a health hazard to men and animals. The measures provided for in Articles 24, 25, 26, 27, 30 and 38 of the Regulation on Solid-Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our council to be informed of the outcome.” 15.     On 27 August 1992 Şinasi Öktem, the mayor of Ümraniye, applied to the First Division of the Üsküdar District Court for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste-collection site. He requested, inter alia , that no further waste be dumped, that the tip be closed and the damage repaired. On 3 November 1992 the mayors of Istanbul and Beykoz opposed that request. To that end Mr Sözen submitted, in particular, that a plan to redevelop the site of the tip had been put out to tender and would be implemented during the year 1993. 16.     While those proceedings were still pending before the Fourth Civil Division of the Court of Cassation, Ümraniye District Council informed the mayor of Istanbul that from 15 May 1993 no dumping of waste would be authorised. C.     The accident 17.     Prior to that date, however, at about 11 a.m. on 28 April 1993 a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and buried some ten slum dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died, including nine members of the Öneryıldız family. D.     The proceedings instituted in the present case 1.     The initiative of the Ministry of the Interior 18.     Immediately after the accident two members of the municipal police force attempted to establish the facts. After taking evidence from the victims, including the applicant, who explained that he had built his house in 1988, they reported that thirteen huts had been engulfed. On the same day a crisis committee, set up by the Istanbul Governor's Office, also went to the site and found that the landslide had indeed been caused by a methane-gas explosion. 19.     The next day, on 29 April 1993, the Ministry of the Interior (“the Ministry”) ordered the circumstances in which the catastrophe had occurred to be examined by the administrative investigation department (“the investigation department”) in order to determine whether proceedings should be instituted against the two mayors, Mr Sözen and Mr Öktem. 2.     The criminal inquiry 20.     While those administrative proceedings were under way, on 30 April 1993 the Üsküdar public prosecutor (“the public prosecutor”) went to the scene of the accident, accompanied by a committee of experts composed of three civil-engineering professors from three different universities. In the light of his preliminary observations, he instructed the committee to determine the share of responsibility for the accident attributable to the public authorities and that attributable to the victims. 21.     On 6 May 1993 the applicant lodged a complaint with the local police station. He stated that “if it was the authorities that, through their negligence, caused my house to be engulfed and caused my wives' and children's death, I hereby lodge a criminal complaint against the authority or authorities concerned”. The applicant's complaint was added to the investigation file (no. 1993/6102) which had already been opened by the public prosecutor of his own motion. 22.     On 14 May 1993 the public prosecutor heard evidence from a number of witnesses and victims of the accident in question. On 18 May 1993 the committee of experts submitted the report ordered by the public prosecutor. The experts confirmed that the landslide – affecting land which had been unstable as it was – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the tip. Reiterating the obligations and duties on the public authorities under the relevant regulations, the experts concluded that liability for the accident should be attributed as follows: (i)     2/8 to the Istanbul City Council, which failed to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and had continued to deteriorate since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law   no.   3030; (ii)     2/8 to Ümraniye District Council for implementing a development plan for the area while omitting, contrary to Regulation no. 20814, to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the region and taking no steps to prevent them from being built, despite the experts' report of 7 May 1991; (iii)     2/8 to the inhabitants of the slum for endangering the members of their families by settling near a mountain of waste; (iv)     1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with Regulation no. 20814 on solid-waste control; (v)     1/8 to the Government for encouraging the spread of this type of illegal dwelling by granting an amnesty on a number of occasions and property titles to the occupants. 23.     On 21 May 1993 the public prosecutor declined jurisdiction ratione personae and referred the case to the Governor of Istanbul, considering that it fell within the Prosecution of Civil Servants Act, the application of which was a matter for the administrative council of the province of Istanbul (“the administrative council”). The public prosecutor stated, in his order, that in respect of Istanbul City Council and Ümraniye District Council, the applicable provisions were Articles   230 and 455 § 2 of the Criminal Code. On 27 May 1993, when the investigative department had completed the preliminary inquiry, the public prosecutor's file was transmitted to the Ministry. 3.     The outcome of the administrative inquiry 24.     On 27 May 1993, having regard to the conclusions of its own inquiry, the investigative department sought authorisation from the Ministry to commence a criminal investigation in respect of the two mayors implicated in the case. 25.     The day after that request was made Ümraniye District Council made the following announcement to the press: “The sole waste-collection site on the Anatolian side stood in the middle of our district of Ümraniye like an object of silent horror. It has broken its silence and caused death. We knew it and were expecting it. As a district council, we had been hammering at all possible doors for four years to have this waste-collection site removed. We were met with indifference by Istanbul City Council. It abandoned the decontamination works ... after laying two spades of concrete at the inauguration. The ministries and the Government were aware of the facts, but failed to take much notice. We had submitted the matter to the courts and they had found in our favour, but the judicial machinery could not be put into action. ... We are now faced with a responsibility and will all account for this to the inhabitants of Ümraniye...” 26.     The authorisation sought by the investigative department was granted on 17 June 1993 and a chief inspector from the Ministry (“the chief inspector”) was accordingly put in charge of the case. In the light of the investigation file compiled in the present case, the chief inspector took down Mr Sözen and Mr Öktem's defence. The latter stated, among other things, that in December 1989 his district council had begun decontamination works in the Hekimbaşı slum area, but that these had been suspended at the request of two inhabitants of the area (see paragraph 10 above). 27.     The chief inspector finalised his report on 9 July 1993. It confirmed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor. It also mentioned two other scientific opinions sent to the Istanbul Governor's Office in May 1993, one by the Ministry of the Environment and the other by a professor of civil engineering at Boğaziçi University. These two opinions confirmed that the fatal landslide had been caused by the methane explosion. The report also indicated that on 4 May 1993 the inspection department had requested the city council to inform it of the measures actually taken in the light of the expert report of 7 May 1991, and it reproduced Mr   Sözen's reply: “Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until the end of 1993 and completed all the preparatory steps for the construction of one of the biggest and most modern installations ... ever undertaken in our country. We are also installing a temporary waste-collection site satisfying the requisite conditions. Alongside that, rehabilitation works are continuing at former sites [which have run their course]. In short, over the past three years our city council has been studying the problem of waste very seriously... [and], currently, the works are continuing...” 28.     The chief inspector concluded, lastly, that the death of twenty-six people and the injuries to eleven others (figures available at the material time) on 28 April 1993 had been caused by the two mayors' failure to take appropriate steps in the exercise of their duties and that they should account for their negligence under Article 230 of the Criminal Code. In spite of, inter alia , the expert report and the recommendation of the Environment Office, they had knowingly breached their respective duties:   Mr   Öktem because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip, as he was empowered to do under section 18 of Law no. 775, and Mr Sözen because he had refused to comply with the above-mentioned recommendation, had failed to rehabilitate the rubbish tip or order its closure, and had not complied with any of the provisions of section 10 of Law no. 3030, which required him to order the destruction of the slum dwellings in question, if necessary by his own means. 4.     Allocation of a subsidised dwelling to the Öneryıldız family 29.     In the meantime, the Department of Housing and Rudimentary Dwellings asked the applicant to attend its offices, informing him that, by an order (no.   1739) of 25 May 1993, the city council had allocated him a flat in the subsidised housing complex of Çobançeşme (Eyüp, Alibeyköy). On 18 June 1993 the applicant signed for possession of flat no. 7 in building C-1 of that complex. That transaction was officialised by an order (no. 3927) of 17   September 1993 of the city council. On 13 November 1993 the applicant signed a notarised declaration in lieu of a contract stipulating that the flat in question had been “sold” to him for 125,000,000 Turkish liras (TRL), a quarter of which was payable immediately and the remainder in monthly instalments of TRL 732,844. The applicant paid the first monthly instalment on 9 November 1993. Since then he has been living in the flat in question. 5.     The criminal proceedings 30.     In an order of 15 July 1993, the administrative council decided, by a majority, on the basis of the chief inspector's report, to institute proceedings against Mr Sözen and Mr Öktem for breach of Article 230 of the Criminal Code. Mr Sözen and Mr Öktem appealed against that decision to the Supreme Administrative Court, which dismissed their appeal on 18 January 1995. The case file was consequently sent back to the public prosecutor, who, on 30 March 1995, committed both mayors for trial in the Fifth Division of the Istanbul Criminal Court (“the Division”). 31.     The proceedings began before the Division on 29 May 1995. At the hearing Mr Sözen stated, among other things, that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since 1970. Nor could he be blamed for not having rehabilitated the Ümraniye tip when none of the 2,000 sites in Turkey had been rehabilitated; in that connection, relying on a number of measures which had nonetheless been taken by the city council, he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it. Lastly, he submitted:   “the elements of the offence of negligence in the exercise of duties have not been made out because I did not act with the intention of showing myself to be negligent ( sic ) and because no causal link can be established” between the incident and any negligence on his part. Mr Öktem submitted that the groups of dwellings which had been buried dated back to before his election on 26 March 1989 and that since then he had never allowed slum areas to develop. Accusing the Istanbul City Council and Governor's Office of indifference to the problems, Mr Öktem alleged that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that, in any event, his district council lacked the staff necessary to undertake the destruction of these huts. 32.     In a judgment of 4 April 1996, the Division found the two mayors guilty as charged, considering their defence to be unfounded. In reaching that conclusion, the judges held as follows: “... although they were aware of the [experts'] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. ... They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that lack of foresight with their lives...” 33.     The Division sentenced Mr Sözen and Mr Öktem to the minimum prison sentence provided for in Article 230 of the Criminal Code, namely three months, and to fines of TRL 160,000. Under section 4(1) of Law   no.   647, the Division commuted the prison sentences to fines, so the penalties ultimately imposed were fines of TRL 610,000. Satisfied that the defendants would not reoffend, the Division also decided to suspend enforcement of the penalties in accordance with section 6 of the same Law. 34.     Both mayors appealed on points of law. They submitted, inter alia , that the Division had exceeded the scope of Article 230 of the Criminal Code in assessing the facts, and had treated the case as one of unintentional homicide within the meaning of Article 455 of that Code. In a judgment of 10 November 1997 the Court of Cassation upheld the Division's judgment. 35.     The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts; nor does any court decision appear to have been served on him. 6.     The applicant's administrative action 36.     On 3 September 1993 the applicant sued the mayors of Ümraniye and Istanbul and the Ministries of the Interior and the Environment for both pecuniary and non-pecuniary damages. The amount claimed by the applicant was broken down as follows:   TRL 150,000,000 in damages for the loss of his dwelling and household goods; TRL 2,550,000,000, 10,000,000, 15,000,000 and 20,000,000 in compensation for the loss of financial support incurred by himself and his three surviving sons, Hüsameddin, Aydın and Halef respectively; and TRL 900,000,000 in non-pecuniary damages for himself and TRL   300,000,000 for each of his three sons. 37.     In letters of 16 September and 2 November 1993 respectively, the mayor of Ümraniye and the Minister for the Environment rejected the applicant's claims. The other authorities did not reply. 38.     The applicant then sued the four authorities for damages in his own name and on behalf of his three children in the Istanbul Administrative Court (“the court”). He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods, and claimed the aforementioned amounts again. On 4 January 1994 the applicant was granted legal aid. 39.     The court gave judgment on 30 November 1995. Basing its decision on the experts' report of 18 May 1993 (see paragraph 22 above), it found a direct causal link between the accident of 28 April 1993 and the contributory negligence of the four authorities in question. Accordingly, it ordered them to pay the applicant and his children TRL   100,000,000 in non-pecuniary damages and TRL 10,000,000 in pecuniary damages (at the material time those sums amounted to approximately 2,077 and 208 euros respectively). The latter amount, determined on an equitable basis, was limited to the destruction of household goods, save the domestic electrical appliances, which the applicant was not supposed to own. On that point the court appears to have confined its assessment to the authorities' submissions that “these dwellings had neither water nor electricity”. The court dismissed the remainder of the claim;   in its view, the applicant could not claim to have been deprived of financial support because he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family's living expenses. The court held that it also ill befitted the applicant to claim compensation for the destruction of his slum dwelling given that, following the accident, he had been allocated a subsidised flat and that, even if the Ümraniye District Council had not exercised its power to destroy the dwelling, nothing could have prevented it from doing so at any time. The court decided, lastly, not to apply default interest to the damages awarded for non-pecuniary damage. 40.     The parties appealed against that judgment to the Supreme Administrative Court, which dismissed their appeal in a judgment of 21   April 1998. An application for rectification of the judgment, lodged by the City Council, was not successful either, whereupon the judgment became final and was served on the applicant on 10 August 1998. The damages in question have still not been paid to date. 41.     The Ümraniye tip no longer exists today. The local council had it covered with earth and installed air ducts on it. Furthermore, land-use plans are currently being prepared for the areas of Hekimbaşı and Kazım Karabekir. The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid. Two monuments have also been erected there in memory of the victims of the accident of 28   April 1993. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Turkish criminal law 42.     The relevant provisions of the Criminal Code read as follows: Article 230 §§ 1 and 3 “Any agent of the State who, in the exercise of his public duties ... acts negligently and delays or who, for no valid reason, refuses to comply with the lawful orders ... of his superiors shall be sentenced to a term of imprisonment of between three months and one year and to a fine of between 6,000 and 30,000 Turkish liras. ... In every ... case, if third parties have suffered any damage on account of the negligence or delay by the civil servant in question, the latter shall also be required to compensate for such damage.” Article 455 § 1 and 2 “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 sentenced to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras. If the act has caused the death of more than one person or has been the cause of the death of one person and the injuries of one or more others ... the perpetrator shall be sentenced to a term of imprisonment of between four and ten years and to a heavy fine of a minimum of 60,000 Turkish liras.” Article 29 § 8 “The judge has full discretion to determine the principal sentence, which can vary between a minimum and maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ... the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even where the minimum penalty is imposed, the reasons for the choice of sentence must be mentioned in the judgment.” Article 59 “If the court considers that, other than the statutory mitigating circumstances, there are other circumstances favourable to reducing the penalty [imposed] on the perpetrator, capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of thirty years. Other penalties shall be reduced by a maximum of one-sixth.” 43.     Sections 4(1) and (6) of Law no. 647 on the Execution of Sentences read as follows: Section 4(1) “Apart from imprisonment, short custodial sentences may, having regard to the personality and state of the defendant and to the circumstances in which the offence was committed, be commuted by the court: (1)     to a heavy fine ... of 5,000 to 10,000 Turkish liras per day; ...” Section 6(1) “Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [maximum] term of one year's imprisonment may have his sentence suspended if the court is satisfied that [the offender], having regard to his criminal record and criminal tendencies, will not reoffend if his sentence is thus suspended ...” 44.     Under the Turkish Code of Criminal Procedure a public prosecutor who – in any way whatsoever – is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, if the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act of 1914, which restricts the public prosecutor's jurisdiction ratione personae with regard to that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, decide whether to prosecute. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. B.     Administrative and civil remedies against agents of the State 1.     Administrative proceedings 45.     With regard to civil and administrative liability arising out of criminal offences, section 13 of Law no. 2577 on administrative procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. If this claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 46.     With regard to the status and organisation of the administrative courts, the status of the court judges and the organisation of the courts are governed by Law no. 2576 of 6 January 1982 on the powers and constitution of the administrative courts and by Law no. 2575 on the Supreme Administrative Court. Under these Laws, it is in theory the law faculties which recruit judges to the administrative-court benches. Civil servants who are not trained lawyers but have graduated from a law faculty can be recruited on the basis of relevant experience. Under the Turkish Constitution all administrative judges enjoy, while in service, constitutional safeguards identical to those of civilian judges (Article 140); they may not be removed from office or made to retire early without their consent (Article 139); they sit as individuals (Article 140); and their independence is enshrined in the Constitution, which prohibits any public authority from giving them instructions concerning their judicial activities or influencing them in the performance of their duties (Article 138 § 2). 2.     Civil proceedings 47.     Under the Code of Obligations, anyone who suffers damage as a result of an illegal act, be it a crime or a tort, 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 as to a defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in theory, only bring an action against the public authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where an act is found to be tortious or criminal and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article   50 of the Code of Obligations). C.     Enforcement of court decisions by the authorities 48.     Article 138 (4) of the Constitution of 1982 provides: “The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.” Article 28 § 2 of the Code of Administrative Procedure provides: “2.     Decisions determining appeals on matters of both law and fact and concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.” Under section 82(1) of Law no. 2004 on enforcement and bankruptcies, State property and property which, according to the appropriate law, is not subject to seizure cannot be seized. Section 19(7) of Law no. 1580 of 3 April 1930 on municipalities provides that municipal property can be seized only if it is not being used for a public service. According to Turkish legal theory in this field, the effect of the above provisions is that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation, the interested party can bring enforcement proceedings under the ordinary law. In that event the appropriate authority has power to impose on the administration the measures provided for by Law no. 2004, although seizure remains exceptional. D.     Regulations governing illegal buildings and sites for the storage of household waste 1.     Slums 49.     The information and documents in the Court's possession show that, since 1960, when inhabitants of underprivileged areas started migrating in their masses to the larger rich provinces, Turkey has been confronted with the problem of slums, consisting in most cases of permanent structures to which further floors were soon added. It would appear that currently more than one-third of the population live in such dwellings. Researchers who have looked into the problem maintain that these built-up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police. They point to the existence of more than eighteen amnesty laws which have been passed over the years in order to regularise the slum areas and, they believe, satisfy potential voters living in these dwellings. 50.     Regarding the fight against slum development, the following are the main provisions of Turkish law: Section 18 of Law no. 775 of 20 July 1966 provides that, after the Law enters into force, any illegal building, whether it is in the process of being built or is inhabited, must be immediately destroyed without any prior decision being necessary. Implementation of these measures is the responsibility of the administrative authorities, which may have recourse to the security forces and other means available to the State. With regard to dwellings built before the Law entered into force, section 21 provides that, under certain conditions, slum inhabitants can purchase the land they occupy and take out low-interest loans in order to finance the construction of buildings which conform to the regulations and urban-development plans. The built-up areas to which the provisions of section 21 apply are declared to be “slum rehabilitation and clearance zones” and are treated in accordance with a plan of action. Under Law no. 1990 of 6 May 1976, amending Law no. 775, illegal constructions built before 1 November 1976 were also considered to be covered by the above-mentioned section 21. Law no. 2981 of 24 February 1984 concerning buildings which do not conform to the slum and town-planning legislation also provided for measures to be taken for the conservation, regularisation, rehabilitation and destruction of illegal buildings erected prior to that date. Lastly, Law no. 4706 was passed on 29 June 2001. This Law, which is designed to strengthen the Turkish economy, lays down the terms and conditions of sale to third parties of real estate belonging to the Treasury. 2.     Sites for the storage of household and industrial refuse 51.     Pursuant to section 6-E, paragraph (j) of Law no. 3030 and Regulation 22 of the Public Administration Regulations implementing that Law, the city councils have a duty to designate waste sites for the deposit of household and industrial waste and to install or have installed systems for recycling and destroying the waste from such sites. Pursuant to Articles 5 and 22 of Regulation no.   20814 of 14 March 1991 on solid-waste control, district councils are responsible for organising the use of waste-collection sites and implementing all measures necessary to prevent rubbish tips from damaging the environment and the health of man and animals. Accordingly, no dwelling can be built at a distance of less than 1,000 metres from a rubbish tip. Regulation 31 empowers city councils to issue permits for the operation of district waste-collection sites. 52.     The general information which the Court has been able to procure as to the risk of a methane explosion at such sites can be summarised as follows:   methane (CH 4 ) and carbon dioxide (CO 2 ) are the two main products of methanogenesis, which is the final and longest stage of the anaerobic process. These substances are generated, inter alia , by the biological and chemical decomposition of waste. The risks of explosion and fire are mainly due to the large proportion of methane in the bio-gas. The risk of an explosion occurs when there is between 5% and 15% of CH 4 in the air. Above 15% methane will catch fire, but not explode. E.     The work and conventions of the Council of Europe 53.     Concerning the various texts adopted by the Council of Europe in the field of the envir