CEDH · CASELAW;CLIN;ENG — 4 octobre 2016

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Turkey - 69546/12 Judgment 4.10.2016 [Section II] Article 2 Positive obligations Failure by domestic authorities to inspect construction site where child subsequently died and inadequacy of judicial authorities: violation Facts – In 1998 the applicant’s ten-year-old son drowned after falling into an uncovered water-filled hole on a construction site where he and a friend – who also died in the incident – had been playing. Three municipal officials were prosecuted for causing death by negligence, but the proceedings were ultimately suspended.* The applicant and other family members of the deceased children subsequently brought an action for compensation in the administrative courts, but it was dismissed on the grounds that no fault was attributable to the municipality. In the Convention proceedings, the applicant alleged that the State authorities had failed to enforce the relevant safety measures as the construction site had never been subjected to an inspection and there had been no adequate judicial response to the accident on the part of the domestic courts. Law – Article 2: The obligation of the State under Article   2 in cases involving non-intentional infringements of the right to life was not limited to adopting regulations for the protection of people’s safety in public spaces, but also included a duty to ensure the effective functioning of that regulatory framework. In the absence of the necessary safety precautions, construction sites, especially in residential areas, had the potential for life-endangering accidents that could impact not only the professional construction workers who were more familiar with the possible risks but also the public at large, including vulnerable groups such as children, who could easily become subject to those risks. That was why, unlike the position in respect of some other activities where the absence of a strict inspection mechanism might not pose a problem in view of their nature and limited extent, the respondent State in the instant case had borne a more compelling responsibility towards the members of the public who had to live with the very real dangers posed by construction work on their doorsteps. While the Court acknowledged that the primary responsibility for the accident in the instant case lay with the owner of the construction site, the failure of the respondent State to enforce an effective inspection system could also be regarded as a relevant factor. Although the Government had argued that the accident had not been foreseeable as the construction work had only recently started, the Court did not consider it unreasonable to hold the respondent State accountable for its failure to carry out an inspection bearing in mind that the hole had been in existence for at least two to eight months prior to the incident and that the municipality had been aware of the ongoing construction work from day one. While it could not speculate on whether the proper inspection of the construction site would have prevented the accident, such inspection would have forced the owner to close off the site and take precautions around the hole which, judged reasonably, might have exonerated the respondent State from liability under Article   2. As regards the response of the domestic courts, neither in the criminal proceedings instituted against officials of the municipality nor in the administrative proceedings against the municipality itself had the domestic courts definitively established the shortcomings identified above: the criminal proceedings had been suspended without a judicial assessment of the responsibility of the relevant officials and the administrative court had not engaged in an in-depth examination of the regulatory framework concerning the inspection of construction sites and the municipality’s responsibility for enforcing it. Conclusion : violation (unanimously). Article 41: EUR 10,000 in respect of non-pecuniary damage. *     Under section 1(4) of Law no. 4616, which provided that criminal proceedings in respect of certain offences committed before 23   April 1999 should be suspended and eventually discontinued if no offence of the same or of a more serious kind was committed by the defendants within the next five years.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes