CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 novembre 2015

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ÖZEL AND OTHERS v. TURKEY   (Applications nos. 14350/05, 15245/05 and 16051/05)         JUDGMENT   This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 31 March 2020.     STRASBOURG   17 November 2015     FINAL   02.05.2016   This judgment has become final pursuant to Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of M. Özel and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Işıl Karakaş,   Nebojša Vučinić,   Helen Keller,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 20 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos. 14350/05, 15245/05 and 16051/05) 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 eight Turkish nationals, namely Mr Mehmet Özel, Mr Mehmet Özel, Mr İsmail Erdoğan, Mr Ali Kılıç, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Msr Şehriban Yüce (Ergüden) (“the applicants”), on 16 April 2005 (as regards Mr Özel and Mrs Akan, application no. 14350/05), on 22   April 2005, (as regards Mr Erdoğan, Mr Kılıç, Mrs Kılıç, Mrs Erdoğan and Mrs Yüce (Ergüden), application no. 15245/05) and 24 April 2005 (as regards Mr   Çakır, application no. 16051/05). 2.     Mr Özel and Mrs Akan were represented by Mrs F Saraç, a lawyer practising in İstanbul. Mr Çakır was represented by Mr   M.U. Yılmaz, a lawyer practising in Istanbul. The other applicants were represented by Mr   R.P. Şat, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicants complained of an infringement of their relatives’ right to life (Article 2 of the Convention), unfair criminal proceedings and the excessive length of the latter (Article 6 of the Convention), and the lack of effective remedies (Article   13 of the Convention). They also alleged a violation of Article   1 of Protocol No. 1 to the Convention. 4.     On 21 October 2009 the applications were communicated to the Government. 5.     On 28 August 2014 the President of the Chamber invited the parties to submit additional information on the facts (Rule   54 § 2 [a] of the Rules of Court). The parties accordingly submitted the additional information requested. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants, Mr. Mehmet Özel, Mr Ali Kılıç, Mr İsmail Erdoğan, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Mrs Şehriban Yüce (Ergüden), were born in 1974, 1955, 1938, 1954, 1960, 1956, 1927 and 1966 respectively. A.     Circumstances surrounding the deaths of the applicants’ relatives 1.     The apartment blocks built in Çınarcık 7.   The Çınarcık Municipal Council, meeting in October 1994, adopted a decision increasing to six storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in Kocadere, on allotment 987, plot   1, and allotment   1257, plot 1. Pages 7 and 8 of the minutes of that meeting, recording the Municipal Council’s discussions, comprise the following exchange: “H.D.: ... at the Municipal Council meeting of 17.10.1994 [the height of buildings in] the restricted zone was raised to six storeys in Kocadere, where, on the worksite belonging to K.P., [the blocks were already] six storeys high. [During] the on-site visit it was noted that there were two more six-storey buildings in Kocadere. I think the decision we took at the time was insufficient. I am therefore requesting a modification of the restricted zone for sites comprising six-storey blocks of flats... The Mayor: ... As I said at the 17.10.1994 meeting, our friend here is proposing legalising the six-storey buildings which have been completed, without bothering about the mistakes made in the past... I repeat what I said at the June meeting: let us correct, rather than mull over, our past mistakes. I acknowledge that mistakes have been made. But from now onwards no one will be able to add an extra storey, we will not allow it. And it was not us that made the mistake. That was already the situation when we arrived [in the municipality]. N.P.: Mr Mayor, three persons have built six-storey blocks in Kocadere. What a cheek! And we subsidise these builders.. V.G. has built six-storey blocks on the site ... Who was asked for authorisation? ... I don’t have to clean up his mess! In June we decided that he should coat [the buildings] in concrete. He should just bury them... the municipality should revise the plans for the whole Kocadere region and authorise six storeys ... Y.B.: The new Municipal Council has been in place for seven months now. Have we visited the site where K.P.’s and V.G.’s buildings stand to record our findings and impose a fine? What exactly have we done so far? The Mayor: They are standing trial. As things stand [their buildings] are not lawful. They have put up five- to six-storey buildings, which is against the law... We at no stage authorised their construction. There are two or three blocks. Either we authorise the six storeys or they will have to be demolished... If you ask me, I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the six storeys, thus correcting the mistake. After which we will not allow any more such buildings... Y.B.: Mr Mayor, you did not answer my questions. What has been done about these blocks over the last seven months? The Mayor: As I say, the builders are being prosecuted. Representatives of the housing department have inspected the site and the municipality has fined certain persons. Furthermore, we will not issue permits [for] these buildings before ... having imposed fines of two or three million Turkish lire ... ... M.P: Mr Mayor, the fine you mentioned is the second stage in proceedings. I would remind you that the first stage, [relating to] your responsibility as Mayor, is to implement section 32 of the Urban Planning Act (Law No. 3194). Pursuant to that legislative provision, apart from [cases of] constructions which are exempt from the permit requirement, where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices, the Municipality or the Office of the Governor must immediately visit the site and work must stop forthwith. You have been in office for six months now: have you, or have you not, honoured that obligation? The Mayor: ... I repeat that I did not authorise the buildings in question... They had already been finished and roofed when I took up my duties. ...” 8.     On 8 and 12 June 1995 a Çınarcık resident complained to the Directorate General for Research and Implementation of the Ministry of Housing and Public Works about the alleged unlawfulness of the buildings constructed in the Çınarcık municipality by the V.G. company. 9.     The Çınarcık Municipal Council held a meeting on 13 October 1995, during which the Municipal Head of Technical Services informed the councillors of the criteria for amending the municipal urban planning scheme. The minutes of the deliberations of the Municipal Council read as follows: “The Municipal Head of Technical Services: Mr Mayor, I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued. According to these provisions, two conditions must be met for such work: the first relates to the width of the street, and the second concerns technical and social infrastructure. I would just inform the Council that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings. ... Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ...” Following these discussions, the Municipal Council accepted several applications for amendments to the municipal urban planning scheme. 10.     On 4 October 1996 the Ministry of Housing and Public Works (the “Housing Ministry”) invited the Office of the Governor of Yalova to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations, to monitor the action taken by that municipality and to keep the Çınarcık resident who had complained to the aforementioned directorate informed of the situation. 11.     On 7 October 1996 the Municipal Council agreed that the number of storeys authorised for the buildings already constructed could be increased from five to six. 12.     On 30 May 1997 the Housing Ministry invited the Governor of Yalova to adopt the urgent measures set out in sections 32 and 42 of the Urban Planning Act (see Relevant Domestic Law, paragraph   134 below) in respect of the buildings and the real estate developers at issue. 13.     On 18 August 1997 the Office of the Governor of Yalova informed the Housing Ministry that despite the transmission of the latter’s orders to the municipality in question, the latter had failed to take any action. 14.     By letter of 15 September 1997 the Housing Ministry invited the Office of the Governor of Yalova to issue the municipality with a final warning on the need to comply with its orders, failing which action would be taken against all persons failing to comply with their obligations under the Urban Planning Act. 15.     On 15 October 1998 the Housing Ministry reminded the Office of the Governor of Yalova that section 32 of the Urban Planning Action prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits, and in fact required the authorities to correct any incompatibility with those permits. 2.     The 17 August 1999 earthquake and the destruction of the buildings in Çınarcık 16.     During the night of 17 August 1999 the Izmit region, located on the coast of the Marmara Sea, was hit by an earthquake of a magnitude of 7.4 on the Richter scale. The earthquake was one of the deadliest to hit Turkey in recent years. According to official statistics, it killed 17,480 persons and injured 43,953 [1] . 17.     Seventeen buildings were destroyed in the municipality of Çınarcık, ten of them in the so-called Çamlık sitesi [2] and Kocadere sitesi [3] estates. On those estates 195 persons lost their lives and hundreds of others were injured as their dwellings collapsed. 18.     Seher Özel, the mother of Mrs Akan and Mr Özel, Mehmet and Şadiye Yüce, the parents of Mrs Yüce (Ergüden), Hasan Kılıç, the son of Mr and Mrs   Kılıç, Kazim Erdoğan, the son of Mr and Mrs Erdoğan, and Can Çakır, the son of Mr Çakır, were buried under the rubble of the blocks of flats in Çınarcık, where they had been when the earthquake struck. Mr Çakır was himself trapped beneath the rubble for about ten hours. Mrs Yüce (Ergüden) was injured, and personally rescued her daughter from the debris. Mrs Akan had also been trapped under the rubble for several hours. 19.     According to a medical report of 18 August 1999 drawn up by a doctor working at the Bursa hospital, Mr Çakır had been placed under observation: he had suffered burns to various parts of his body and display whole-body trauma and respiratory problems. 20.     On 24 August 1999 the Yalova public prosecutor visited Çınarcık together with technical experts and officers from the Directorate of Security. On the same day official inspection reports were drawn up on the Çamlık estate, covering allotment 1648/15-1, plot 7, sections C, D and E, allotment 1649/15-1, plot 3, and allotment 1927/15-1, plot 1, section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular , that the concrete contained mussel shells, that the material used for the construction had been sea-sand based and that as a result the cement had lost its binding capacity. 21.     On 25 August 1999 the Yalova public prosecutor and a group of technical experts visited the Kocadere estate. On the same day they drew up official reports on allotment 1258/3-2, plot 1, allotment 1256/3 ‑ 2, plot   5, section D, and allotment 1257/3-2, plot 1. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular , that the concrete contained mussel shells, that the concrete displayed a very poor granulometry, that the concrete had not been cured, that the metal brackets in the buildings had not been properly fastened to the columns, and that because of the corrosion of the brackets the iron had worked loose from the concrete. 22.     Moreover, on 13 September 1999 Mrs Akan had requested that the Yalova Regional Court determine, on the basis of the evidence gathered, the causes of the collapse of building D2   on allotment 1649-15/1, plot 3, in the Çamlık estate, under whose rubble her mother had died, and establish the relevant responsibilities. An expert opinion was commissioned to that end on the same day. 23.   On 13 October 1999 the expert opinion commissioned set out the following findings: “... (d)     Defects noted upon examination of the collapsed building, the rubble and the construction blueprint. 1.     The height of the building was increased by 2.80 m by raising the basement above ground level, thus transforming it into the ground floor. 2.     The foundations of the building were raised to soft ground (topsoil) level, which had low stability in terms of ground safety stress; the stability calculations ... were at no point revised. 3.     The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint... 4.     Neither the basement included on the plan, whose existence would have greatly increased earthquake resistance, nor the reinforced concrete retaining walls, which, according to the plans, were to have surrounded the basement, were ever built. 5.     The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting, which had been a major factor in diminishing the concrete’s resistance. 6.     It was noted that the reinforcing rods inside the concrete had rusted, suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal. 7.     The broken beams found in the rubble showed that the 20-cm distances between the brackets had not been respected, and in some places the interstices measured 30 cm... 8.     ... The stress testing carried out on the samples showed that their stress resistance was only half what it should have been. In conclusion: ... The building was constructed without any kind of technical   control; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner’s request in order to increase the number of housing and commercial units. Furthermore, the fact that the municipality failed to stop the building work raises issues. It is therefore necessary to ascertain whether a permit was issued for the building’s shallow foundations, which were, in fact, incompatible with the blueprint as from the first storey. If such a permit was issued, it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality. If so, it is necessary to establish the identities of the signatories of that occupancy permit. It is possible that other blocks have been built without inspection by the Çınarcık municipality. The photographs taken show buildings with seven storeys above ground level and others with two storeys. It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction.” B.     Criminal prosecution of the real estate developers 24.     On 6 September 1999 the Yalova public prosecutor took statements by V.G., the real estate developer responsible for buildings which collapsed in Çınarcık. V.G. stated that he had been working in the real estate field for nine years and that he had constructed numerous buildings with his partnership, the company V.G., and with the company G. Arsa . He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself, but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold. He also submitted that the buildings located on allotment 1927/15-1, plot 1, section D, allotment 1649/15-1, section C, and allotment 1649/15-1, plot 3, section D, had been constructed by İ.K. and Z.C. He did not know who had constructed the buildings in the Çamlık estate which had collapsed. He added that he was neither a construction engineer nor an architect, and that was why he called on the services of persons with expert knowledge of these fields, who should, in his view, be held responsible. 25.     V.G. was remanded in custody the same day. 26.     On 14 September 1999 the Yalova public prosecutor charged five individuals: the partners in the company V.G. Arsa Ofisi , to wit V.G., C.G. and Z.C., and also the company’s scientific officers, to wit D.B. and İ.K. They were charged with having caused, through negligence and recklessness, the deaths of 166 persons, buried under the rubble of three buildings which they had constructed in breach of the relevant norms. It transpired from the indictment that several site sections – section E on allotment   1927, sections C and D on allotment 1649, and sections A, C, D and E on allotment   1648 – had been built in Çınarcık, on Çamlık square, and that three buildings, which had totally collapsed, had been erected in the Kocadere estate, on Hanburnu square, on allotments 1256 and 1258. It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had, in particular, found as follows: in the buildings in question, the iron brackets had not been tightened at the interstice between the beams and the columns; mussel shells had been found in the concrete, resulting in low resistance owing to the use of sea sand and sea gravel; the distance between the columns and the beam brackets was 40   cm   in places; and there was insufficient iron in some of the columns. 27.     Criminal proceedings were commenced before the Yalova Criminal Court. 28.     In September 1999 İ.K., D.B. and C.G. were remanded in custody in absentia by the Yalova Criminal Court. 29.     On 30 September 1999 Z.C. was remanded in custody. 30.     On 6 October 1999 the Yalova public prosecutor wrote to the General Directorate of Criminal Affairs of the Ministry of Justice to inform it of the following facts: a large number of articles had been published in the local and national press about V.G.; given the very large number of deaths involved, the trial would be attended by many journalists and also numerous relatives of the victims; there was likely to be a very tense atmosphere during the hearings; Yalova prison had been closed following the earthquake and the prisoners were therefore housed in the Bursa   prison; the courtroom would be too small for the number of persons attending proceedings; there were credible risks of the accused being abducted or murdered; and any preventive measures which the security forces would be able to put in place would be insufficient, such that it would be better to transfer the case to a different court. 31.     On 14 October 1999 the General Directorate of Criminal Affairs of the Ministry of Justice invited the State Prosecutor with the Court of Cassation to transfer the case from the Yalova Criminal Court to a different criminal court pursuant to Article 14 in fine of the Code of Criminal Procedure, in order to guarantee public security during the proceedings. 32.   On 15 October 1999, before the start of proceedings before the Yalova Criminal Court, the Court of Cassation, to whom the matter had been referred, decided to transfer the case to the Konya Criminal Court [4] for reasons of security during the proceedings and of the accused’s safety. 33.     On 19 October 1999, therefore, the Yalova Criminal Court transferred the case file to Konya Criminal Court. 34.     On 20 October 1999 Mr Çakır applied to join the proceedings as a third party. On the same day Mrs Akan and Mr   Özel also applied to join the proceedings as third parties, and declared that they reserved their rights as potential civil parties. 35.     On 29 October 1999 Mr and Mrs Erdoğan and Mr and Mrs Kılıç lodged similar applications, and Mr Çakır reiterated his request. 36.     On 20 November 1999 Mr Çakır forwarded a memorial requesting the criminal conviction of V.G. and his partners and stating that he reserved his rights vis-à-vis claiming compensation for the pecuniary and non ‑ pecuniary damage which he considered he had sustained. 37.     On 29 November 1999, after the case had been transferred to the Konya Criminal Court, Mr   Çakır once again applied to take part in proceedings as a third party, and declared that he reserved his rights as potential civil party to proceedings. Mrs   Yüce (Ergüden) also applied to take part in the criminal proceedings as a third party. Similarly, counsel for Mrs Akan and Mr Özel submitted a third-party application on behalf of each of her clients. 38.     On 29 December 1999 Mr and Mrs Erdoğan applied to participate in proceedings, reserving their rights as potential civil parties. They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son. Mr and   Mrs   Kılıç also lodged a third ‑ party application. Mr   Çakır was heard as a victim, and he gave evidence against the accused. Counsel for Mr Çakır requested the admission of his client’s application to take part in proceedings. At the conclusion of the hearing held on the same day, the Konya Criminal Court admitted that third ‑ party application. 39.     On 28 January 2000 the Konya Criminal Court examined Mr and Mrs Erdoğan’s third-party application, and noted that their son’s name was not on the list of deceased victims set out in the indictment. The court therefore requested submissions from those two applicants, including fresh information on the deceased persons. In a memorial of the same day, Mr   and Mrs Erdoğan requested that charges be pressed against the officials allegedly responsible for the impugned acts. 40.     During the hearing of 21 February 2000 the Konya Criminal Court questioned the victims, the accused and their lawyers. Mr Çakır was examined in his capacity as a third party, and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question. 41.     According to the official record of the hearing held on 20 March 2000, Mrs   Akan, Mrs Yüce (Ergüden) and Mr Çakır had been examined as third parties: Mrs Akan had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings; and counsel for Mr Çakır had also demanded the conviction of those officials. At the conclusion of the hearing, the State Prosecutor was asked for information on the measures adopted by his Office regarding the provincial officials, as well as those working in the Çınarcık municipality and the Housing Ministry. Furthermore, V.G. and Z.C. were released on parole. 42.     On 21 April 2000 Mr Çakır once again requested the prosecution of the Mayor of Çınarcık and of the municipal Head of Technical Services and Architecture. Mr and Mrs Kılıç were granted third-party status in the proceedings. 43.     On 30 June 2000 Mr Erdoğan was granted third-party status in the proceedings. Mr Çakır was heard as a third party, and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed. Counsel for Mrs Akan reiterated a request previously submitted for provisional measures covering all of V.G.’s assets. 44.     On 22 September 2000, during the proceedings, the Yalova public prosecutor once again charged the five accused persons with having caused the deaths of several other persons through negligence and recklessness. 45.     On 12 October 2000 three experts from the Istanbul Technical University prepared a report on their inspection of ten buildings which had collapsed, seven of them in the Çamlık estate and three in the Kocadere estate. The conclusions of this expert report read as follows: “ Tectonics and seismic activity in the region between Çınarcık et Yalova ... This region is one of the most dangerous in seismic terms, which is why it has been marked out as a major hazard area on the map of Turkish seismic regions. Impact of the Izmit earthquake of 17 August 1999 on the region between Çınarcık and Yalova The 17 August 1999 earthquake, which was of a magnitude of 7.4 on the Richter scale and whose epicentre was at Izmit, created a 120-km-long superficial fault from Gölcük to Akyazı ... The fault segment was interrupted at a distance of 50 km from Çınarcık ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods. Conclusions The coastal zone between Çınarcık and Yalova is an extremely dangerous region in seismic terms ... The Çamlık estate, which collapsed, had been built on an active rockslide area and on particularly soft soil. In such a high seismic risk region there can be no valid reasons for issuing building permits for six- or seven-storey buildings on such soft soil. Moreover, the fact that six-storey building located 300   m away in the Çamlık estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the Çamlık estate had building defects. ... Appraisal of the blueprints and the permits ... Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed... Expert reports included in the case file The expert appraisals commissioned by the Yalova public prosecutor ... highlighted the following shared defects: –   Concrete resistance was unsatisfactory. The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells. It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned. –   The metal brackets on the load-bearing parts had not been reinforced and the anti-rust fixtures [ paspayı ] were unsatisfactory... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete. –     ... –   The softness of the soil was established. Establishing the responsibility of the accused persons and conclusions The owner and developer of all the impugned buildings [which] collapsed during the 17 August earthquake is the “ V.G. Arsa ofisi ” partnership. The founding partners of that company are İ.K., Z.C., C.G. ... Assessment of the evidence and documents contained in the case file shows that V.G. was the actual organiser [of the project]... For this reason V.G.’s responsibility is estimated at 2/8. The responsibility of the public authorities which allowed the urban development of the Çamlık and Hanburnu neighbourhoods, authorised the multi-storey buildings there without commissioning the requisite prior geological studies, failed to provide for satisfactory supervision of the projects in the area, failed to request studies of the soil   ..., failed to prevent the defective concrete-manufacturing procedures [and] failed to monitor the work of those responsible for the technical applications is estimated at 2/8. C.G.’s responsibility is set at 1.5/16 and Z.C.’s at 1.5/16... İ.K.’s responsibility is set at 3/16 on the grounds that he was a partner in the V.G. company, but also because he was responsible for the architectural and structural design of seven buildings and for the relevant technical applications... D.B.’s responsibility is set at 1/8 because he was responsible for the architectural and structural design of three buildings and for the relevant technical applications. ...” 46.     On 23 October 2000 the Yalova Criminal Court, to which the case had been referred following the indictment of 22 September 2000 (see paragraph 44 above), found that a similar action against the accused was pending and therefore requested the joinder of the two sets of proceedings. 47.     On 22 December 2000 the Konya Criminal Court declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question; the case was then referred to the Konya Assize Court. 48.     Between 16 April 2001 and 21 October 2004 the Konya Court Assize held twenty-three hearings. At the hearing on 16 April 2001 the State Prosecutor pointed out that transferring the case to Konya was against the procedural regulations and in breach of the rights of the third parties. He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in Yalova, where the offence had been committed. The applicants also applied for the setting aside of the transfer order in question, submitting that the security grounds advanced no longer applied. On the same day the Konya Assize Court rejected the application, pointing out that pursuant to the case-law of the Court of Cassation the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied. Counsel for Mr Özel, Mrs   Akan, Mr and Mrs Kılıç, and Mr and Mrs Erdoğan presented their case during the hearing. 49.     On 26 April 2001 the Istanbul Criminal Court remanded C.G. in custody. 50.     On 3 May 2001 the Konya Assize Court wrote to the Konya public prosecutor requesting the preparation of a further expert report, complementing that of 12   October 2000, on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards. 51.     On 8 June 2001 Mrs Akan gave evidence. She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble. She also submitted that the accused had not been the only parties criminally responsible for the impugned acts, as various municipal officials and members of the Chamber of Architects responsible for the technical oversight of the constructions in question had also been guilty. Counsel for that applicant stated that he had heard, through unofficial channels, that the decision had been taken to broaden the investigation in order to establish the municipal officials’ responsibility, and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question. During the 8 June 2001 hearing Mr Çakır also gave evidence as a third party, as did another person, who stated that the Council of State had adopted a decision on 4 October 2000 to the effect that the Mayor of Çınarcık could not be prosecuted (see paragraph 89 below). On the same day V.G. was once again remanded in custody. 52.     On 11 June and 6 July 2001 the Konya Assize Court wrote to the Office of the Governor of Yalova   , asking, in particular, whether any action had been taken against the Mayor of Çınarcık and the other officials liable to be held responsible for the consequences of the earthquake. 53.     On 1 August 2001 V.G. and C.G. were released on parole. In a memorial of the same day, Mrs Akan and Mr   Özel requested the indictment of the officials whose responsibility had been engaged for the impugned acts. Mr   Çakır also submitted a memorial requesting the conviction of the accused and the prosecution, in the framework of the ongoing criminal proceedings, of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality. 54.     At the hearing on 1 October 2001 Mr Çakır read out the minutes of meetings of the Çınarcık Municipal Council which, in his view, established that the buildings in the zone at issue had been constructed without prior authorisation. He once again submitted that the municipality and the officials had been responsible for what had happened. 55.     On 11 April 2002 the Assize Court noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials (see paragraph   87 below) previously issued by the Interior Ministry had been set aside by the Council of State (see paragraph 89 below) and that the Inspectorate of Administration had adopted an opinion to the effect that there was no need to bring proceedings. 56.     In a memorial of 16 July 2002 Mr Çakır requested the commencement of proceedings against the Mayor of Çınarcık and the Head of Technical Service and Architecture, suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings. 57.     On 24 July 2002 General Directorate of Local Administration of the Interior Ministry prepared a document for the Assize Court mentioning the following points: (a) the Interior Ministry’s 4 May 2000 decision to authorise a criminal investigation had been cancelled on 4   October 2000 by the Council of State, which meant that no action had been taken against the officials in question (see paragraph 89 below); (b) a report on an inquiry authorised by the Interior Ministry on 10 September 2001 had also concluded that there were no grounds for proceedings against the officials in question (see paragraph   91 below); and (c) another report on an inquiry authorised by the Interior Ministry on 25 January 2002 had concluded that there was no need to prosecute the officials in question (see paragraph   93 below). 58.     At the hearing on 17 October 2002 the Assize Court noted that the document from the Directorate General of Local Administration of the Interior Ministry had been read and added to the case file. 59.     In a claim submitted on 11 November 2003 Mr Çakır demanded a certain sum in respect of procedural expenses for the transfer of the case to Konya, and reserved his rights as regards that outlay. 60.     On 18 November 2003 he repeated his request for the indictment of the officials whose responsibility had been engaged. 61.     On 1 March 2004 Mrs Akan and Mr Özel submitted a memorial on the merits in which they relied on Article 6 of the Convention to complain of unfair proceedings and an infringement of the “natural judge” principle owing to the transfer of the case to Konya and a breach of the right of prosecution. They considered that their inability to obtain leave of prosecution under the Prosecution of Civil Servants and other Public Officials Act (“Law No. 4483”) with regard to the municipal officials in question was contrary to the principle of equality before the law, as well as Articles 6 and 13 of the Convention. 62.     On 4 May 2004 the Konya Assize Court ordered the separation of the case in hand from that concerning D.B. and İ.K. on the ground that the latter two accused persons had been untraceable for almost three years, thus delaying the proceedings. 63.     On the same day a joint memorial was lodged with the registry of the Konya Assize Court by Mr and Mrs Kılıç and Mr and Mrs Erdoğan, declaring that they reserved their rights to claim civil damages in the criminal proceedings. Mrs Yüce (Ergüden) lodged a third-party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused’s company had been sold off, which she considered as jeopardising the chances of success for any future action for damages. She also pointed out that the Mayor of Çınarcık had been given a thirty-five-month prison sentence for the architectural practices implemented in the Çamlık estate (see paragraph 85 below), and that he had been removed from office. 64.     On 24 June 2004 İ.K. was remanded in custody. 65.     On 5 July 2004 a fresh expert report was prepared at the Assize Court’s request. According to the report, V.G. had been issued with six different building permits, twenty-two blocks had been built in Çınarcık for which no occupancy permit was to be found in the assessment file, and 195 persons had died buried in the rubble of those buildings, 152 of them in the Çamlık estate, 12 in the Kocadere estate and   31 in the V.G. estate. It also transpired from that report that İ.K. had been responsible for the architectural project regarding the buildings in the Çamlık estate, on allotment 1927/15-1, plot 1, allotment 1649/15-1, plot   3 and allotment 1648/15-1, plot 7, and that D.B. had been in charge of the architectural project regarding the buildings in the Kocadere estate, on allotment 1258/3 ‑ 2, plot 1, allotment 1257/3-2, plot 1, and allotment 1256/3 ‑ 2, plot   5. The report also specified that the V.G. company, in which İ.K. and Z.C. had been partners, had been responsible for the construction of all those buildings. 66.     On 14 October 2004 the State Prosecutor presented the prosecution case on the merits. He submitted that 195 persons had died in the estates built by V.G.: 115 persons had been killed on allotment 1925, plot   1, allotment 1648, plot 7, and allotment 1649, plot 3, and 80 other persons in other buildings. Those deaths had been caused not by the earthquake alone but also by the actions of the accused, who had used deficient materials with full knowledge of the risks involved. He demanded the conviction of the accused pursuant to Articles 383/2 and 40 of the Penal Code, insisting that the sentence should be delivered six times, one for each of the building permits issued. 67.     On 21 October 2004 the Assize Court found the accused V.G., C.G. and Z.C. guilty of endangering the lives of others through negligence and recklessness and, pursuant to Article 383/2 of the Penal Code, sentenced each of them to twenty years’ imprisonment without parole and four years and twelve months’ [5] imprisonment, and to a fine of 360,000,000 Turkish lire [6] (TRL). The Assize Court gave the following reasons: “... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent, virtually intentional, acts had been built in breach of many current legal obligations. Even though the area in question had been classified as a major seismic hazard zone, no soil studies had been carried out on the worksites. The concrete, metal and other materials used lacked the necessary resistance. A large number of obligations set out in the blueprint were breached. The buildings thus constructed collapsed under the impact of the earthquake, and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [offset] the unlawful acts committed, such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings. ... The provisions relating to the concurrence of offences are applicable to this case... The present proceedings concern six different building permits... Consequently, the accused were held responsible for six different events. Having regard to the lists drawn up by the Governor of Çınarcık district and by the Kocadere municipality... 11 persons lost their lives on plot no.   1, allotment   1927 (1 st section), 28 on plot no. 3, allotment 1649 (2 nd section), 76 on plot no. 7, allotment   1648 (3 rd section) and 2 on plot no. 5, allotment 1256 (blocks A and B). It has not been established with certainty whether there were any deaths on the other plots. Where it was established that there were deaths, it was also established that buildings collapsed. Therefore, it must be acknowledged that in those buildings people’s lives had been jeopardised. Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article 383/2 of the Penal Code, multiplied by four, as regards the deaths which occurred in four zones covered by a permit. As regards the two zones covered by a permit where no loss of life could be established, the first section of Article 382/2 of the Penal Code, multiplied by two, must be applied. All the buildings were constructed by the real estate developer, that is to say the ‘ V.G. Arsa Ofisi ’ company ... At the material time the two accused persons V.G. and C.G. had been partners in that company. The accused person Z.C. had also been a partner in the company in respect of the buildings covered by permits. Z.C. had also been the owner of five buildings covered by permits. Insofar as Z.C. was involved in the construction of the buildings, he must be held responsible for all the relevant actions... Even though permits had indeed been issued for all the building lots, none of them was covered by an occupancy permit, that is to say a permit for utilisation. In this context, since at the time of the offence the company and its partners were still under the obligation to correct the shameful [defects] in the buildings, [they] are also criminally liable for the collapse of the latter owing to these disgraceful [defects] throughout the whole period... As already stated above, the consequences of the impugned acts amounted to a disaster. Solely because of those acts, 195 persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify. The accused bear enormous responsibility for those consequences. As highlighted by the expert reports, using such construction methods in a 100% earthquake risk zone really was a recipe for disaster...” 68.     On 4 November 2004 İ.K. was also found guilty of homicide and bodily harm through recklessness. He was sentenced to twenty years’ imprisonment without parole and four years and twelve months’ imprisonment, and to a fine of TRL 360,000,000. 69.     The accused appealed on points on law. 70.     By judgment of 27 June 2005 delivered on 6 July 2005 the Court of Cassation set aside the convictions of V.G., C.G. and Z.C. on the following grounds: the fact that a judge had failed to sign the minutes of the 20   March 2000   hearing; conviction for the collapse of a building on allotment 1257, plot 1, which was not mentioned in the indictment; the failure to read out the 22 September 2000 indictment before taking statements from the accused; and the entry into force of the new Penal Code. 71.     By judgment of 18 July 2005 delivered on 20 July 2005 the Court of Cassation also set aside İ.K.’s conviction on the following grounds: the conviction for the collapse of a building on allotment 1257, plot no. 1 was not mentioned in the indictment; one judge had failed to sign the minutes of the 20   March 2000   hearing; the criminal prosecution of İ.K. should have been joined to that of the other accused persons; and the new Penal Code had come into force. 72.     Between 18 June 2005 and 11 April 2006 the Konya Assize Court, to which the case had been referred back by the Court of Cassation after the setting aside of the 21   October 2004 judgment, held eleven hearings. The preparatory report for the 18   June 2005 hearing included the applicants’ names in the list of third parties to the proceedings. 73.     On 17 August 2005 the Konya Assize Court ordered the joinder of the criminal proceedings against İ.K. with those pending against V.G., C.G. and Z.C. 74.     On 31 January 2006 the Assize Court decided to separate the proceedings against the accused Z.C. and C.G. untile they were arrested. 75.     On 11 April 2006 the Konya Assize Court sentenced V.G. and İ.K. to eighteen years and nine months’ imprisonment and to a fine of TRY 250 [7] . Mr Çakır, Mrs Yüce (Ergüden), Mrs Akan, Mr   Özel and Mr and Mrs   Erdoğan were mentioned as third partie