06.06.2017
EGMR: Einstellung eines Ermittlungsverfahrens unter Verstoß gegen Art. 2 EMRK
The applicant, Arzum Makbule Sinim, is a Turkish national who was born in 1979 and lives in Istanbul. Ms Sinim complains of the authorities’ alleged failure to conduct an effective criminal investigation into her husband’s death. Mr Sinim died in 2006 as a result of a road traffic accident, after the truck in which he was travelling as a passenger collided with another vehicle and caught fire. It later transpired that the truck, which Mr Sinim had been renting along with a transport company, had not only been transporting his own goods, but also inflammable liquid. However, according to certain expert reports, the truck was not properly equipped to carry such goods, having regard to the requirements set out in the law for the transportation of dangerous goods: the truck had not had an electrical system to prevent short circuiting and fire, it had borne no warning signs, and the driver had not been trained in the transportation of dangerous goods.
The authorities decided not to pursue criminal charges against the alleged producer of the inflammables or the transport company. Ms Sinim brought civil proceedings against the alleged wrongdoers in 2007, but these are still pending.
Relying in particular on Article 2 (right to life), Ms Sinim complains of the authorities’ alleged failure to conduct an effective criminal investigation, including the responsibility of those who had knowingly disregarded the relevant regulations on transportation of dangerous goods and thus her husband’s right to life.
Decision of the Court
The Court notes that there is nothing to indicate that the death of the applicant’s husband was caused intentionally, and the circumstances in which it occurred were not such as to raise suspicions in that regard. According to the information gathered from the domestic proceedings, he rather lost his life as the result of a fire that was caused by the accidental collision of a truck loaded with apparently inflammable goods with another vehicle. There is little doubt that the transport of such dangerous substances involved a hazardous activity that required regulation by the State geared to the special features of that activity (see paragraph 58 above). The Court notes that the need for such regulation is not contested by the respondent State, which has put in place an extensive legislative and administrative framework regarding the packaging, labelling, storage and transportation of such substances.
The applicant in the instant case neither challenges the sufficiency of the regulatory framework in question, nor alleges that the State authorities failed in their obligation to monitor compliance with it or were in any other way responsible for the accident. She rather complains of their failure to establish, by way of an effective criminal investigation, the circumstances of her husband’s death, including the responsibility of those who had knowingly infringed the terms of the relevant regulations and had thus disregarded her husband’s right to life.
The Court reiterates that in cases involving non-intentional infringements of the right to life, the positive obligation under Article 2 does not necessarily require the provision of a criminal-law remedy in every case. There are, nevertheless, circumstances where a civil remedy alone may not suffice to satisfy the requirements of an effective judicial response under Article 2 of the Convention. The Court has so far adopted this approach in the context of dangerous industrial activities, such as the operation of waste‑collection sites , in the public health sphere and in the context of military activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities and where the negligence attributable to those authorities went beyond an error of judgment or carelessness. The Court observes that the circumstances of the present case differ from the aforementioned examples, notably because the activity in question, although undoubtedly dangerous, were not carried out by or under the responsibility of public authorities. The Court nevertheless considers that an effective criminal investigation was necessary to satisfy the requirements of Article 2 of the Convention on the present facts for the following reasons.
Firstly, while it is not for the Court to assess individual liability for an incident resulting in serious injury or death, it considers that the omission that led to the applicant’s husband’s death in the instant case went beyond a mere traffic accident caused by negligence or carelessness, as it also seems to have involved a deliberate disregard of the relevant rules on the transportation of dangerous goods noted in paragraphs 41-45 above, despite the obvious risks involved. It appears from the applicant’s unrefuted allegations, which also found support in the expert opinions obtained during the civil proceedings, that the truck in question had not been equipped with an electrical system to prevent short circuits and fire, that it had borne no warning signs, and that the driver had not been trained in the transportation of dangerous goods, contrary to the clear requirements of the law in these respects. The Court further notes that no licence had been obtained for the transportation of such goods and the shipment was incorrectly described as “raw material” in the invoice and delivery note, in a possible attempt to evade inspection by public authorities. All these elements taken together suggest that while it was certainly not caused intentionally, the death in the instant case resulted from the responsible parties’ voluntary and reckless disregard of their legal duties under the relevant legislation, as opposed to a simple omission or human error, which in the Court’s opinion sets this case apart from other cases of non-intentional deaths where it has found civil remedies to be sufficient. The Court stresses that by their apparently reckless conduct, the persons responsible for the shipment caused the kind of serious harm that the legislation in question was intended to prevent in the first place. Such action, in the Court’s opinion, requires a criminal-law reaction to ensure effective deterrence against similar threats to the right to life in the future.
Secondly, the Court notes that according to Article 174 § 1 of the Turkish Criminal Code, the transportation of certain categories of dangerous goods without the permission of the competent authorities is an offence punishable by imprisonment, even where such conduct does not result in serious injury or death (see paragraph 47 above). The Court considers that this criminal law provision had been introduced in order to ensure, inter alia, the effective enforcement of the regulatory framework on the transportation of dangerous goods, having regard to the serious public safety risks posed by such activity. In these circumstances, a criminal investigation into the accident was necessary in the instant case, if for no other reason than to determine whether the death had been caused on account of the unlawful transportation of one of the dangerous substances referred to in section 174 § 1 of the Criminal Code.
In the light of the foregoing, the Court will review whether and to what extent the domestic criminal law authorities may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life was not undermined . The Court recalls that compliance of an official investigation with the requirements of Article 2 is assessed on the basis of several essential parameters, including the adequacy of the investigative measures, the promptness of the investigation and the involvement of the deceased person’s family. These are criteria which, taken jointly, enable the degree of effectiveness of an investigation to be assessed.
The Court notes in this connection that a criminal investigation was indeed promptly initiated into the circumstances surrounding the applicant’s husband’s death. That investigation initially focused only on the responsibility of the two drivers involved in the accident, namely M.S. and S.S.H., for causing death by negligence under Article 85 of the Criminal Code. The Court notes that the investigation ended with a decision not to prosecute as M.S., who was found to be solely responsible for the collision, had also lost his life. Upon subsequent instructions by the Kadıköy Assize Court, the scope of the investigation was expanded to determine the possible liability of the producer and the transport company for the accident under Article 85 of the Criminal Code. That investigation, however, also resulted in a decision not to prosecute, on the grounds of an absence of evidence against the suspects.
The Court finds the investigation conducted by the Sultanbeyli public prosecutor to have been unsatisfactory for a number of reasons. It notes, first and foremost, that the public prosecutor appears to have treated the incident as an ordinary traffic accident caused by negligent driving. Although it was evident from the autopsy report that the applicant’s husband had died as a result of burns, and also evident from the scene‑of‑incident report that the truck had been loaded with some type of fuel, the investigation was from the beginning geared towards establishing the immediate cause of the accident, that is the responsibility of the truck driver for the collision from a technical point of view, without paying attention to the cause of the fire that claimed the applicant’s husband’s life. In that connection, even after the scope of the investigation had been expanded following the decision of the Kadıköy Assize Court, and despite the applicant’s persistent requests, the public prosecutor paid no particular attention to the dangerous nature of the truck’s cargo, nor did he discuss in any way the extensive legal requirements that the transportation of such material triggered under domestic law for different parties involved in the transportation. According to the information in the case file, the public prosecutor did not take any steps to determine the composition and the chemical properties of the truck’s cargo, despite the important legal implications of that information particularly under Article 174 § 1 of the Criminal Code, nor did he seek to identify the individuals or companies who had been involved in the transportation of such material and who could thus have had liability for the fatal accident under the relevant law. The Court notes that the Sultanbeyli public prosecutor’s significant omissions in taking these basic investigatory steps were disregarded by the Kadıköy Assize Court as well, despite the applicant’s objections.
Secondly, the Court notes that the Sultanbeyli public prosecutor based his decision not to prosecute on an expert report by the Forensic Medicine Institute, which appears to have been prepared without sufficient care. The Court reiterates that the obligation under Article 2 that an official investigation into a death cover all crucial elements that may shed light on the circumstances of the death equally applies in respect of expert reports, particularly where such reports form the main basis of the investigating authorities’ decisions as in the present case. The Court notes that the Forensic Medicine Institute report at issue did not only fall short of shedding light on the circumstances of the death, but appears not to have taken into account the evidence that was readily available in the case file. The Court observes in this connection that, in complete disregard of the evidence in the case file pointing to the contrary, including the scene‑of‑incident report, the delivery note and the statements by representatives of the suspect companies themselves (see paragraphs 8, 13 and 26 above), the Forensic Medicine Institute’s experts were somehow unable to identify Şenocak Ltd. Şti. as the producer or distributor of the dangerous goods in question. Moreover, they declared that Salihli Ltd. Şti. had not been at fault for the accident, without giving any reasons whatsoever for such a finding. The Court notes that the applicant’s objections to the experts’ unjustified findings were not taken into consideration by the public prosecutor, who accepted what was a clearly defective report without any reservations. The Court stresses that even if the public prosecutor had not been able to find any evidence regarding the specific involvement of Şenocak Ltd. Şti. and Salihli Ltd. Şti. in the shipment in question, as suggested by the expert report, he was still under an obligation to pursue the investigation, if necessary by commissioning another expert report, to establish the identities of the producer, the distributor and the transporter of the dangerous goods, whoever they were.
Thirdly, the Court observes that not only did the judicial authorities not display sufficient diligence in the conduct of the investigation, but that they for a considerable length of time ignored the applicant’s official complaints and denied her the right to participate effectively in the proceedings. Although the applicant had from the very beginning brought complaints against the producer of the chafing fuel, the transport company and the truck owner A.S., the public prosecutor initially confined the investigation solely to the liability of the driver for the accident in disregard of the applicant’s complaints. The applicant was, moreover, not notified of the expert opinion submitted to the file, or of the decision against prosecution delivered by the public prosecutor. Even after she had found out about those developments through her own efforts, her objections against the public prosecutor’s decision were not taken into consideration by the Kadıköy Assize Court. The Court notes from the information in the case file that the applicant was not recognised as a “complainant” by the Kadıköy Assize Court, which expanded the investigation only in line with the complaints of A.S., although A.S. had not even objected to the public prosecutor’s decision . As a result, the applicant’s complaints against A.S. were never pursued. Moreover, the Kadıköy Assize Court’s decision was not notified to the applicant, although she alone had carried the matter before the assize court with her objection , and she was once again left to her own means to find out about the developments in the case.
In the Court’s opinion, those considerations largely suffice to conclude that the criminal proceedings at issue did not satisfy the State’s positive obligations under Article 2 as noted in paragraph 65 above, as they failed to shed light on the circumstances of the death and had little deterrent effect in terms of ensuring the effective enforcement of the regulatory framework on the transportation of dangerous goods. It must be emphasised that although there is no right under Article 2 to have third parties prosecuted or sentenced for a criminal offence, the criminal investigation conducted by the domestic judicial authorities must nevertheless have been capable of leading to the identification and punishment of those responsible, to the extent that this was justified by the findings of the investigation.
The Court notes that in parallel to the criminal investigation, the applicant also brought compensation proceedings against the suspects, that so far appear to have involved more comprehensive discussions about the defendants’ liability under the relevant legislation on the transport of dangerous material. The Court has, however, already established that the appropriate judicial response in the instant case was a criminal-law remedy (see paragraphs 62-65 above). For that reason, contrary to the Government’s allegations, civil remedies aimed at awarding damages alone would not be sufficient for the fulfilment of the respondent State’s obligations under Article 2 in the present circumstances. However, even supposing that the compensatory remedy could alone suffice to provide adequate redress to the applicant, the Court considers the compensation proceedings in question to be far from effective in view of the fact that they have been pending before the first-instance court since July 2007 .
In the light of the foregoing, the Court dismisses the Government’s preliminary objections and concludes that there has been a violation of Article 2 of the Convention on account of the lack of an adequate judicial response by the authorities to establish the circumstances of the death of the applicant’s husband and to avert similar life‑endangering conduct in the future.