SECOND SECTION

DECISION

Application no. 40259/07 Nezahat GÃœLAÄžACI against Turkey

The European Court of Human Rights (Second Section), sitting on 13 April 2021 as a Chamber composed of:

Jon Fridrik Kjølbro, President, Marko Bošnjak, Valeriu Griţco, Egidijus Kūris, Branko Lubarda, Carlo Ranzoni, Saadet Yüksel, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 3 September 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Nezahat Gülağacı, is a Turkish national who was born in 1963 and lives in Istanbul. She was represented before the Court by Mr İ.H. Ateş, a lawyer practising in Istanbul.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 17 August 1999 the Ä°zmit region, located on the coast of the Sea of Marmara, 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 people and injured 43,953 others.

5. One of the buildings that collapsed during the earthquake in Gölcük Province was the Çavuşoğlu apartment building (“the building”), in which thirteen people lost their lives.

6. On 28 August 1999 a panel of three technical experts and a photographer carried out an on-site examination of the collapsed building, noting that it had consisted of a ground floor and five floors. They observed, in particular, that the columns had been entirely demolished. In their view, insufficient concrete had been used, in particular in the columns, which were weak, whereas the beams were strong. The necessary reinforcements had not been included either in the columns or in the beams. The panel of technical experts concluded that the building had not been constructed in accordance with the provisions of the relevant regulations, which had resulted in the deaths of three [sic] people.

7 . The Kocaeli public prosecutor’s office filed a bill of indictment dated 1 March 2004, charging the applicant before the Kocaeli Assize Court with “causing the death of multiple persons by failing to abide by orders and rules”, on the ground that she was the person responsible for the technical implementation of the building project ( fenni mesul / teknik uygulama sorumlusu ), the collapse of the building during the earthquake having claimed the lives of thirteen people.

8. At the first hearing on 11 June 2004, noting the absence of the applicant, the trial court directed that the necessary letters be sent with a view to establishing her address.

9. The trial court held seven hearings from June 2004 to February 2006, during which it made several attempts to establish the applicant’s address and notify her of the criminal proceedings against her, but to no avail.

10. At a hearing held on 3 June 2005, the Kocaeli Assize Court decided to obtain an expert report with a view to ascertaining whether the applicant had borne any criminal responsibility vis-à-vis the collapse of the building in her capacity as the person responsible for the technical implementation of the building project.

11. On 28 November 2005 a panel of experts, consisting of a professor and two assistant professors from the Engineering Faculty of Istanbul University, drew up their report; they lodged it with the registry of the trial court on 6 February 2006. The experts found that the applicant was liable for the collapse of the building in a proportion of two-eighths, while apportioning three-eighths’ liability each to the contractor, A.M., and the municipal officers. In sum, the explanation that the experts gave for the collapse of the building was as follows: (i) the characteristics of the soil on which the building had been constructed had been overlooked; and (ii) the material used in its construction was deficient and insufficient.

12. As regards the first ground, the experts noted that while the case file had not contained the details of the structural and reinforced-concrete analyses for the building, there had been an irregularity in the column application plan given that the rigidity of the carrier system had been designed in such a way as to concentrate it in a certain direction. Furthermore, although the building had had four residential floors and a ground floor designated as shops, its foundations had been 100 cm high, and in the absence of a basement floor, the building had not been sufficiently elevated from the ground.

13. As regards the use of deficient and insufficient material, the experts stated that there was a strong likelihood that the building had been built on a type of soil with an insufficient load-bearing capacity, while at the same time noting that the case file had contained no information in that respect. In any event, after examining the photographs and the on-site inspection reports available in the case file, the expert panel found, in particular, that insufficient concrete had been used in the columns, which had resulted in the collapse of the building.

14. The expert report stated that according to the construction permit, the applicant had been “the person responsible for the building” ( yapı sorumlusu ) and that the permit had been issued for five floors in total. It was also stated in the report that according to the documents relating to the occupancy permits, it had been established that construction of the building had started on 3 October 1989 and had ended in 1991. The expert report furthermore stated that the applicant had been designated as the building’s structural project manager, as her name had been included instead of that of H.G., the applicant’s husband, whose name had apparently been crossed out on the cover of the file. The experts also noted that the file sent to them for examination had not contained the details of the structural and reinforced-concrete analyses for the collapsed building.

15. As regards the applicant’s responsibility, the report found that on 19 August 1988 the applicant had started her activities as the person responsible for the technical implementation of the building project (see paragraph 7 above) and the structural project manager ( statik proje müellifi ) but had resigned from those duties on 21 February 1991. Nevertheless, given that the construction permit ( ruhsat ) in respect of the collapsed building had been issued on 3 October 1989 and the housing licence ( iskan ) in 1991, and bearing in mind that most of the documents relating to the housing licence had been drawn up prior to the applicant’s resignation and that the load-bearing elements had been complete, the experts found that the applicant had been the person responsible for the technical implementation of the building project and that, under section 28 of the Urban Planning Act (Law no. 3194), she had retained legal liability.

16. The expert panel also examined in its report information that had been submitted to the Kocaeli Assize Court by the Directorate of the Kandilli Observatory and Earthquake Research Institute of Boğaziçi University in connection with a separate case. As a result, the experts concluded that the relevant area had been a first-degree earthquake zone and that, considering that the magnitude of the 17 August 1999 earthquake had been 7.4 on the Richter scale, it could be deemed normal for a building which had been constructed there in compliance with the regulations applicable at the material time to sustain a certain amount of repairable damage. However, the report added that such buildings were not supposed to collapse or to cause deaths.

17. At a hearing held on 20 February 2006 the trial court decided to disjoin the case against the applicant, noting that it had not been able to establish her address despite all its efforts. Basing its decision mainly on the expert report, the trial court acquitted a certain K.Ç. (the owner of the land on which the building was erected).

18. On 10 March 2006 the applicant’s lawyer filed defence submissions with the Kocaeli Assize Court and contested the expert report, arguing that it had relied on evidence obtained in the applicant’s absence. In that connection, the lawyer noted that although the experts had claimed that the details of the structural and reinforced-concrete analyses were not in the case file, they were in the Gölcük Municipality’s file no. 3925 and should thus be obtained by the trial court. The lawyer also invited the trial court to ask the experts to answer the following question: if the building had been constructed in compliance with the regulations, how much damage would it have sustained in the earthquake of 17 August 1999? For those purposes, the lawyer asked the trial court to commission a new expert report drawn up by a new panel, consisting of two civil engineers and one geophysicist.

19. At a hearing held on 10 April 2006 the applicant gave evidence in person and pleaded not guilty. The applicant’s lawyer asked the court to rule on the requests included in the submissions of 10 March 2006. However, the trial court dismissed those requests, holding that in view of the scope of the case file, there was no basis to extend the scope of the investigation or to obtain a fresh report.

20. On 27 April 2006 the applicant filed further submissions, in which she reiterated her two previous requests and submitted that she had not been the person responsible for technical implementation because she had not been working as an engineer as of 31 August 1989, whereas the construction permit for the building was dated 3 October 1989. According to her lawyer, the expert report had found the applicant liable for the collapse of the building solely on the basis of the characteristics of the soil, whereas no consideration had been given to the gravitational acceleration of the earthquake, which, he claimed, had soared to 56%, whereas the regulations allowed only 10% to be taken into account in calculating the horizontal force. In his view, this aspect had not been given any consideration owing to the fact that the expert panel had not included a geophysics engineer.

21. On 3 May 2006 the Kocaeli Assize Court convicted the applicant, on the basis of the expert report dated 28 November 2005, of causing the deaths of thirteen people by dint of constructing a deficient building. The court sentenced her to three years’ imprisonment and imposed a fine on her. In its reasoned judgment, it did not address any of the points raised by the applicant in her defence submissions.

22. On an unspecified date the applicant lodged an appeal against the judgment, repeating the grievances she had raised before the trial court.

23. On 8 February 2007 the Court of Cassation upheld the applicant’s conviction.

24. Article 63 § 2 of the Code of Criminal Procedure, entitled “Expert appointment”, reads as follows:

“The authority to appoint an expert, or to assign more than one expert on the basis of a reasoned decision, shall rest with the judge or the court. If requests for the appointment of multiple experts are dismissed, the decision shall be given by means of the same procedure.”

25. Article 67 §§ 5 and 6 of the Code of Criminal Procedure, entitled “Expert report, specialist opinion”, reads as follows:

“(5) Upon completion of the expert examinations, the public prosecutor, the intervening party [ katılan ], [his or her] representative, the suspect or the accused and [his or her] defence counsel or legal representative shall be granted time to lodge an application for a fresh expert examination or to submit their objections. In the event of dismissal of an application lodged by the above-mentioned persons, a reasoned decision on the matter shall be given within three days.

(6) The public prosecutor, the intervening party [ katılan ], [his or her] representative, the suspect or the accused and [his or her] defence counsel or legal representative may obtain a scientific opinion from a specialist regarding the subject matter of the proceedings or the expert report, or to be examined in the preparation of the expert report. No application for additional time shall be made solely on this basis.”

COMPLAINTS

26. The applicant complains under Article 6 of the Convention that she was denied a fair trial owing to her inability to challenge the expert report on which the domestic courts relied to convict her.

THE LAW

27. The applicant complained that she had not had a fair trial as she had been unable to challenge the expert report effectively as the trial court had failed to take into account her objections and requests to obtain further evidence in order to make an accurate finding as to the question of her guilt. The relevant parts of Article 6 of the Convention read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

28. The Government contested those claims.

A. The parties’ submissions

1. The Government

29. Reiterating that the authority to assess the evidence was a matter for the domestic courts, the Government argued in essence that the deficiencies alleged by the applicant as regards the expert report had already been assessed in that report. Bearing in mind that there was in principle no right under Article 6 of the Convention to obtain a second expert report, the Government emphasised that the impugned expert report had been thorough and had contained detailed assessments as regards the documents relating to the building, the contents of the file at the Gölcük Municipality, the destructive nature of the earthquake and the applicant’s liability.

30. The Government argued that the applicant had been able to challenge the impugned expert report by means of the written submissions she had submitted to the domestic courts. Moreover, the expert report, taken as the basis of the trial court’s judgment, had been drawn up by the experts appointed by that court during the trial and had not been a piece of evidence submitted by the prosecution or one which could not be challenged. Thus, the applicant had been provided with an adequate and proper opportunity to challenge the expert report. In their view, despite the fact that the applicant had had a statutory right to obtain an opinion from specialists of her own choice, she had not submitted any such opinion to challenge the findings of the expert report.

31. Furthermore, the panel of experts had had all the necessary documents at their disposal, and had based their analysis on reputable scientific research and evidence collected in connection with a previous on-site inspection of the building. Lastly, the Government pointed out that the experts, who had had file no. 3925 in their possession, had found that that file had not contained the detailed analyses sought by the applicant. In sum, the Government invited the Court to hold that there had been no violation of Article 6 of the Convention in the present case.

2. The applicant

32. The applicant alleged that the trial court had convicted her on the basis of the expert report, which had several technical and factual inaccuracies, and that it had dismissed with insufficient reasoning her requests aimed at eliminating the discrepancies in the report. In that connection, the applicant argued that the panel of experts had not studied the characteristics of the soil, nor had they had at their disposal the details of the structural and reinforced-concrete analyses for the collapsed building. According to the applicant, some of the information had in fact been readily available to the panel of experts but the panel had not examined the content of the documents and had thus failed to conduct a proper technical assessment. The trial court had also dismissed, without sufficient reasoning, her request for the commissioning of a new expert report and to obtain the details of the structural and reinforced concrete calculations of the collapsed building. Thus, the trial court had found her guilty without, in fact, resolving the alleged deficiencies in the report.

33. The applicant further argued that despite the fact that the building had been constructed with a ground floor and four other floors, an additional floor had been built after her responsibilities had come to an end, which had disturbed its statics, and, in her view, had broken the chain of causation for her criminal liability. Nevertheless, that had been another factor which had completely been ignored by the experts.

34. Furthermore, the panel of experts had neither looked into whether the collapse of the building had been unavoidable, nor had they taken into consideration whether the time between the construction and the earthquake had been a factor in the damage. She further asserted that the panel of experts had erred in concluding that she had been the engineer in charge. In finding her guilty, the domestic courts had also failed to take into account the magnitude and strength of the earthquake. As a result, the domestic courts’ approach had violated her right to a fair trial as they had failed to address the deficiencies surrounding the main component of her conviction.

B. The Court’s assessment

1. General principles

36. Nevertheless, the Court has to ascertain whether the way in which the evidence was taken was fair (see Mantovanelli v. France , 18 March 1997, § 34, Reports of Judgments and Decisions 1997-II, and, mutatis mutandis , Schenk v. Switzerland , 12 July 1988, § 46, Series A no. 140). The “fairness” principle requires that all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument (see Mirilashvili v. Russia , no. 6293/04, § 162, 11 December 2008).

37. It is a matter for the domestic judge to assess the relevance and evidentiary value of all available evidence, including expert opinions, the Court’s power in this area being very limited. Thus, the mere fact that the court preferred the opinion of a particular expert does not reveal any “unfairness” within the meaning of Article 6 of the Convention (ibid., § 174). Similarly, under Article 6 it is normally not the Court’s role to determine whether a particular expert report available to the domestic judge was reliable or not (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 700, 25 July 2013).

39. The Court furthermore reiterates that, in view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard” – that is to say, properly examined by the tribunal (see Carmel Saliba v. Malta , no. 24221/13, § 65, 29 November 2016, with further references therein, and Fodor v. Romania , no. 45266/07, § 28, 16 September 2014). In examining the fairness of criminal proceedings, the Court has also held in particular that by ignoring a specific, pertinent and important point made by the accused, domestic courts fall short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine , no. 42310/04, § 280, 21 April 2011).

40. Moreover, according to the Court’s established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Moreira Ferreira (no. 2) , cited above, § 84). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to arguments that are decisive for the outcome of those proceedings (see, among other authorities, Ruiz Torija v. Spain , 9 December 1994, §§ 29-30, Series A no. 303-A, and Higgins and Others v. France , 19 February 1998, §§ 42-43, Reports 1998 ‑ I).

2. Application of the principles to the case at hand

41. Turning to the circumstances of the present case, the Court observes that the trial court found the applicant guilty, on the basis of the court-appointed experts’ report dated 28 November 2005, of causing the deaths of thirteen people who had lived in the collapsed building, since she had failed to comply with the standards provided by the relevant domestic provisions in her capacity as the person “responsible for the technical implementation of the building project”.

42. The Court notes at the outset that the only complaint by the applicant of which the Government were given notice was the one relating to her alleged inability to challenge the expert report dated 28 November 2005 on account of the trial court’s dismissal of her application for a new expert report to be obtained, given that that report had not taken into account the details of the structural and reinforced-concrete analyses for the collapsed building, which, she argued, had formed part of the Gölcük Municipality’s file number no. 3925 and could thus have been obtained by the trial court. At the time when notice of the application was given, the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

43. Therefore, there is no call for the Court to examine the remaining arguments the applicant raised to contest the findings of the expert report dated 28 November 2005, namely that (i) the earthquake’s magnitude and the addition of an illegal floor had been such as to extinguish her criminal responsibility; (ii) she had not been the person responsible for the technical implementation of the building project because the relevant documents had lacked her signature; and (iii) the amount of time between the earthquake and the construction of the building had not been taken into consideration by the domestic courts.

44. In any event, the Court notes that the expert report contained detailed explanations as regards almost all of the above-mentioned points. In the Court’s view, the applicant’s complaints in this connection concern either specific technical issues or matters that had already been addressed by the experts in detail. They are, moreover, beyond the competence of the Court, which is simply not equipped to deal with questions of fact and other issues requiring specialist knowledge regarding a building that collapsed after the deadly earthquake in 1999. In the absence of any arbitrariness or manifest unreasonableness in the expert examination and the ensuing conviction, the Court’s task is to determine whether the guarantees of the right to a fair trial embodied in Article 6 of the Convention were observed as regards the trial court’s obtaining and assessment of the impugned expert report in convicting the applicant.

45. That brings the Court to the question of the trial court’s allegedly unjustified refusal to obtain the details of the structural and reinforced-concrete analyses for the collapsed building. In that connection, the Court notes that the experts stated in their report dated 28 November 2005 that the Gölcük Municipality’s file number no. 3925, which they had examined in the preparation of their reports, had not contained those analyses. Subsequently, the applicant informed the trial court that that file had in fact included them, requesting that the analyses be obtained and examined. However, the trial court dismissed that request, holding that there was no need to extend the investigation in view of the scope of the criminal case file.

46. While such a generic line of reasoning may be open to criticism under Article 6 § 1 of the Convention (compare Sergey Afanasyev v. Ukraine , no. 48057/06, § 70, 15 November 2012), the Court is not convinced that in the circumstances of the present case it was such as to warrant the conclusion that the applicant was deprived of her ability to challenge the impugned report effectively in accordance with the guarantees of a fair trial under Article 6 § 1 of the Convention.

47. In that connection, the Court observes that, according to the documents in its possession, the applicant did not argue that she had not been allowed to obtain copies of the detailed analyses, despite the fact that she had been able to notice them after consulting the Gölcük Municipality’s file. Nor did she assert that any other obstacles had prevented her from obtaining copies of them and submitting them to the trial court for examination. According to the documents in the Court’s possession, the applicant did not argue either before the domestic courts or the Court that the period between the hearings had been too short or that she had not been able or allowed to have access to the Gölcük Municipality’s file number no. 3925. Nor did she put forward any other plausible reason as to why it would not have been possible for her to obtain the details she sought.

48. As regards the Government’s argument that the applicant could have obtained an opinion from specialists of her own choice under Article 67 § 6 of the Code of Criminal Procedure, the Court reiterates that the procedural position of such a witness would not have been equal to the position of court-appointed experts. Statements of court-appointed experts, who are by the nature of their status supposed to be a neutral and impartial auxiliary of the court, would carry greater weight in the court’s assessment than an opinion of an expert witness called by a party (see Shulepova v. Russia , no. 34449/03, § 68, 11 December 2008).

49. Be that as it may, the Court is not convinced in the particular circumstances of the case at hand that the applicant took reasonable steps to challenge effectively the experts’ alleged failure to examine the details of the structural and reinforced-concrete analyses for the building. As a result, the Court is unable to conclude that the conditions in which the applicant presented her case placed her at a distinct disadvantage vis-à-vis the prosecution.

50. In view of the above, the nature of the applicant’s complaints before the Court essentially boils down to her disagreement with the conclusions of the court-appointed experts’ report, which was the central pillar of her conviction.

51. Accordingly, the applicant’s complaints are directed at the evaluation of evidence, and hence are of a fourth-instance nature. Therefore, they fall outside the Court’s competence unless the domestic courts’ findings can be regarded as arbitrary or manifestly unreasonable so as to prejudice the fairness of the proceedings in that either no reasons were provided for them or the reasons given were based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (see Moreira Ferreira (no. 2) , cited above, § 85). As the domestic courts’ decisions cannot be characterised as such in the instant case, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see Mirilashvili , cited above, § 174).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 May 2021.

{signature_p_2}

Stanley Naismith Jon Fridrik Kjølbro Registrar President