CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 septembre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s24B66D7B { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.15pt } .s4892C878 { margin-top:0pt; margin-bottom:0pt; text-indent:14.15pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s6B505E72 { margin:0pt; padding-left:0pt } .sF7623534 { margin-left:35.45pt; font-family:Arial } .sFBC99493 { font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       SECOND SECTION Application no. 69546/12 Ali Murat CEVRİOĞLU against Turkey lodged on 13 September 2012 STATEMENT OF FACTS   1.     The applicant, Mr Ali Murat Cevrioğlu, is a Turkish national, who was born in 1956 and lives in Hatay. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 20 February 1998 the applicant’s ten-year-old son, Erhan Cevrioğlu, was found dead together with his friend, after falling in a hole full of water within the borders of a construction site, where he had gone to play.   1.     Criminal proceedings against the owner of the construction and municipality officials   4.     Following the incident, criminal proceedings were instigated against the construction owner H.C. and three officials from the Antakya Municipality for causing death by negligence and by failure to comply with rules, pursuant to Article 455 of the then valid Criminal Code (Law   no.   765). 5.     During the course of the criminal proceedings, three expert reports, apportioning the liability for the incident among H.C., the municipality officials and the children, were submitted to the Hatay Criminal Court of General Jurisdiction. 6.     The first report dated 16 April 1998 noted that no safety measures had been taken around the hole, which had been dug as a shelter and measured 5   x 15 m. with a 2 m. depth. According to the report, two construction workers maintained that they had placed wooden planks around the hole but had taken them to another construction later on as they had found that children played with them and threw them in the hole. The workers also stated that there had been no wooden fence around the hole. The committee of experts, comprising three civil engineers, attributed 2/8 of fault to the deceased children, finding that the construction site clearly fell outside the limits of their play zone. The experts noted that the Antakya Municipality officials were 2/8 at fault as they had failed in their duty to supervise. They also maintained that the Municipality should have made sure that the hole was surrounded with a wooden fence and should not have given permission for the construction of a shelter in the garden. The expert report indicated that the owner, H.C, was 4/8 at fault for failing to take safety measures in the construction, such as building a wooden fence around the hole, putting warning signs and recruiting a security guard. 7.     On 25 May 1998 a second expert report was drawn up by three experts in occupational safety. In line with the previous report, the experts established that the children had drowned in the hole which had not been surrounded by a wooden fence as verified by the construction workers. Moreover, there were no warning signs in or around the construction site, which was located in a residential area with several buildings and public spaces as close as 15   m. away. According to the report, the applicant stated that the hole had been there for about ten months, during which time they had warned H.C. of its danger but in vain. Consequently, the experts attributed 6/8 of the liability in the incident to H.C. for his failure to recruit a person responsible for the technical aspects and safety of the construction and because he had not taken the required measures by building a barrier around the hole and by placing warning signs. They added that each of the two deceased children was 1/8 at fault as they had acted in an inattentive manner. The experts finally found that the Municipality could not be considered to be at fault just because it had not inspected the construction and imposed measures on the general contractor unless it were proven that the authorities overlooked the deficiencies in the construction despite having noticed them. 8.     Finally, on 4 April 1999 a third expert report was issued by a committee of experts from the Istanbul Technical University: a professor and an associate professor from the faculty of mechanical engineering and an associate professor from the faculty of naval architecture and ocean engineering. The report indicated that the hole measuring 5 x 15 x 2 m., in which the children drowned, was not surrounded by a panel or a wooden fence and there were no warning signs around it. It then noted the statements of certain witnesses, taken during the on-site inspection. According to the report, H.C. and one of the workers maintained the following: “H.C.: I have total responsibility of the construction. We dug a hole of 2,5 m. depth in front of the building, which I surrounded with wooden planks. After it was noticed that children had thrown the planks in the hole, the workers removed them, as a result of which the hole started to fill up with water when it rained. We had actually pumped out the water from the hole once but apparently it filled up again. As I was not there and because the work stopped during that time, we did not have the possibility to drain the hole again. There were no warning signs which pointed out the hole. Construction worker B.Y.: The hole was dug around two months before the incident. We piled up several wooden planks on its south and west sides without fixing them in the ground. When we realised that children had thrown those planks in the hole, we took them to another construction site, leaving the edges of the hole empty. We stopped working while H.C. was on holiday and left the hole as it was. The hole would fill up with water at times and there was nothing around it to prevent that.” 9.     Referring to the relevant legislation regulating the safety measures which must be taken by the construction owner and the general contractor, and the administration’s duty to supervise, the experts from the Istanbul Technical University found that H.C. and the Municipality were at fault by 6/8 and 2/8, respectively and that no liability could be attributed to the deceased children. They indicated that H.C. had not taken any of the safety measures required by the Labour Code and had disregarded the danger posed by the hole, which had been known to fill up with water after rain and become muddy at the edges, facilitating the fall of those walking around. The experts noted that the reason children had played there was the lack of play zones and parks, which must be built by the Municipality. They concluded that, failing to comply with its duties set forth by Law no.   1580   on Municipalities, the latter had neglected to inspect the construction site and to warn the general contractor of its deficiencies. 10.     On 14 April 2000, in line with the third expert report, the Criminal Court held that municipality official İ.H.S. and construction owner H.C. were 2/8 and 6/8 responsible for the incident, respectively. Accordingly, the court found the accused guilty as charged and sentenced them to imprisonment. 11.     However, on 9 July 2001 the Court of Cassation quashed that judgment finding that the case should be assessed under Law no.   4616,   which governed conditional release, suspension of proceedings and execution of sentences in respect of certain offences committed before 23   April 1999. 12.     Accordingly, on 6 August 2001 the Criminal Court decided, pursuant to section 1 (4) of Law no. 4616, that the criminal proceedings should be suspended and subsequently discontinued if no offence of the same or a more serious kind was committed by the offenders within the following five-year period. 2.     Compensation proceedings before the civil courts 13.     On 16 September 2003 the family members of both deceased children, including the applicant, initiated compensation proceedings before the Hatay Civil Court of General Jurisdiction against H.C., the construction company and the Antakya Municipality, arguing that their children had died as a result of negligence. The applicant claimed 5,000,000,000 Turkish liras (TRL) [1] in respect of pecuniary damage and TRL 3,000,000,000 [2] in respect of non-pecuniary damage. 14.     On 5 November 2011 an expert report was drawn up by an architect and a mechanical engineer upon the request of the court. After stating the circumstances of the incident, the report noted the following:   “It is observed that the owner of the construction did not take any safety measures such as placing warning signs, informing the construction workers of possible dangers and employing a guard. However, according to the case-law of the Court of Cassation, it is his duty not only to take the necessary measures but also to inspect whether they are applied. Accordingly, the owner is liable for all dangers that have occurred or may occur at the construction site. In the instant case, the owner should have restricted access to the zone by surrounding the site by wooden panels of 2 m. height or by building fences. As for the children, although it should be considered normal for them to play outside, they should not have entered the construction site and approached the hole, the dangers posed by which were obvious. Finally, it would not be realistic to hold the Antakya Municipality liable for the deficiencies in all construction sites as its duty is to issue the required permissions for construction after evaluating the project. The sole person responsible for construction site is the general contractor or the owner of the construction. The Municipality cannot be held liable for damages occurring in such areas, which do not fall within the scope of public space. Consequently, without there being any fault attributable to the Municipality, the liability of H.C. and the deceased children should be established as 85% and 15%, respectively.” 15.     During the proceedings, on 11 February 2005 a lawyer issued another expert report, calculating the pecuniary damages to be awarded to the families of the deceased children, for loss of subsistence. The lawyer calculated that, taking into account the deceased children’s 15% fault in the incident, the applicant and his wife should be awarded a total pecuniary compensation of TRL 5,294,000,000 [3] . 16.     On 22 March 2005 the Civil Court partially accepted the applicant’s case. The court stated that after having examined the expert reports issued during the criminal proceedings before the Hatay Criminal Court of General Jurisdiction, it had requested a final report in order to clarify the conflicting aspects of the previous reports. On the basis of that final report, the court established that the responsibility of H.C. and his construction company for the incident was 85%. It thus concluded that H.C. and the construction company were to pay TRL 5,000,000,000 [4] in respect of pecuniary damage to the applicant and his wife and TRL 3,000,000,000 [5] in respect of non-pecuniary damage to the applicant, his wife and their three surviving children. The court dismissed the case concerning the Antakya Municipality, stating that no fault could be attributed to it. 17.     On 18 June 2007 the Court of Cassation quashed the judgment with regard to the part concerning the Antakya Municipality. It noted that the first-instance court should have dismissed the case against the Municipality for procedural reasons, without assessing it in substance, as the matter fell within the jurisdiction of administrative courts. The higher court upheld the rest of the judgment. 18.     Subsequently, on 11 December 2007 the Civil Court dismissed the case against the Antakya Administration, indicating that it lacked jurisdiction ratione materiae . The court noted that its previous judgment concerning the children’s families’ compensation claims from H.C. and the construction company had become final and that there was no need to render a new judgment in respect of that part of the case. 19.     The applicant did not appeal against that judgment, which eventually became final on 16 February 2009. 3.     Compensation proceedings before the administrative courts 20.     On an unspecified date in 2009 the applicant brought compensation proceedings against the Antakya Municipality, claiming 5,000 Turkish liras (TRY) [6] in pecuniary and TRY 3,000 in non-pecuniary damages. 21.     On 27 October 2010 the Hatay Administrative Court requested the case file of the criminal proceedings against H.C. and municipality officials from the Hatay Criminal Court of General Jurisdiction. 22.     However, in a letter dated 9 December 2010, the Criminal Court informed the Administrative Court that, although it had received back the case file following the civil proceedings, it could not be found despite all efforts and must have gone missing during the relocation of the archives. 23.     On 11 March 2011, without making any reference to the reports submitted during the course of the criminal proceedings, which had been outlined in the judgments of both the Criminal Court and the Civil Court, the Administrative Court dismissed the case on the basis of the last expert report. The Administrative Court indicated that according to that expert report, there was no fault attributable to the Antakya Municipality as the construction owner H.C. and the deceased children were liable for the incident by 85% and 15%, respectively. 24.     On 15 November 2011 the Adana District Administrative Court upheld the judgment of the first-instance court. 25.     Finally, on 26 April 2012 the District Administrative Court rejected the rectification requests of the applicant and his family. B.     Relevant domestic law in force at the material time 26.     At the time of the incident, Law no. 1580 on Municipalities ( Belediye Kanunu ) dated 1930 was in force. That law was abolished following the adoption of the new law (Law no. 5393) on 3 July 2005. Section 15 (12) of the abolished Law no. 1580 indicated the following among the Municipality’s duties: “12) To issue licences for constructions as well as for their repair and annexes in line with the relevant legislation, to abort construction of buildings which are built without the required licence, to demolish the walls and chimneys of defective buildings and to cover the holes or wells in construction sites or to take precautions to prevent the dangers which might be caused by those.” 27.     Regulations on Workers’ Health and Occupational Safety ( Yapı İşlerinde İşçi Sağlığı ve İş Güvenliği Tüzüğü ) state that all construction sites in residential areas within the borders of municipality should be surrounded by wooden fences of 2 m. height, which should be kept that way until the work is completed (Article 18). COMPLAINT 28.     Relying upon Articles 1 and 8 of the Convention, the applicant argues that although his son died as a result of negligence on the part of the construction owner and the Antakya Municipality, none of the domestic remedies available to him provided adequate redress for his loss. In that connection, he maintained that the proceedings lasted for an excessive period of time, that he could not obtain any compensation as he was never paid the amount awarded to him by the Hatay Civil Court of General Jurisdiction and that the domestic courts attributed no fault to the Municipality for the incident.     QUESTIONS TO THE PARTIES   1.     Having regard to the State’s positive obligation under Article 2 of the Convention, read in conjunction with Article 1, not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , 9   June 1998, § 36, Reports of Judgments and Decisions 1998-III), as well as the case-law concerning the management of dangerous activities and safety on building sites (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004-XII, Banel v. Lithuania , no. 14326/11, 18 June 2013, and Pereira Henriques and Others v. Luxembourg (dec.), no. 60255/00, 26   August 2003), was there a violation of Article 2 of the Convention as a result of the death of the applicant’s son?   2.     Were the remedies available to the applicant in the instant case capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the applicant (see Ciechońska v. Poland , no. 19776/04, § 67, 14 June 2011)? In this regard:   (a)     Has the judgment of the Hatay Civil Court of General Jurisdiction of 22 March 2005 been enforced?   Both parties are requested to provide the Court with documents relating to the enforcement proceedings.   (b) Could the expert report submitted before the Hatay Civil Court of General Jurisdiction, which was taken into account by both that court and the Hatay Administrative Court, be considered to have enabled the determination of the applicant’s case, regard being had to:   its subjective wording ( mainly concerning the “obvious” character of the danger that the children have had to consider before playing in the zone and/or the question whether it would be “realistic” or not to hold the municipality liable )? In Turkish procedural law, would such observations not fall within the ambit of the judge’s discretion? the qualifications of the two experts who had drafted that report ( a mechanical engineer and an architect ), compared to those of the experts who had drawn up the first and the third reports submitted before the Hatay Criminal Court of General Jurisdiction?   (c)     Did the Hatay Administrative Court try to obtain the expert reports in the case file of the proceedings before the Hatay Criminal Court of General Jurisdiction by other means ( for instance from the applicant or from the experts themselves ) after having been informed that the file could not be found in the archives of the Criminal Court?   In that connection, did the Administrative Court seek to obtain a fresh expert report in order to clarify the discrepancies between the first and third reports submitted to the Criminal Court and that submitted to the Civil Court?   Both parties are requested to inform the Court about the legislation ( including all regulations, guidelines and similar legal instruments ) in force at the material time, governing the supervision of construction sites and the precautionary measures that need to be taken for ensuring the safety of individuals.   [1] .     Approximately   3,200 euros at the material time [2] .     Approximately 2,000 euros at the material time [3] .     Approximately 3,300 euros at the material time [4] .     Approximately 2,800 euros at the material time [5] .     Approximately 1,700 euros at the material time [6] .     On 1 January 2005 the new Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY   1   = TRL   1,000,000.