SECOND SECTION

DECISION

Application no. 9054/13 EÅŸe Fatma AKTAÅž against Turkey

The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Chamber composed of:

Robert Spano , President, Julia Laffranque , Işıl Karakaş , Nebojša Vučinić , Paul Lemmens, Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 26 December 2012,

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 EÅŸe Fatma AktaÅŸ , is a Turkish national who was born in 1966 and lives in Adana. She was represented before the Court by Mr N. Karakaya , a lawyer practising in Istanbul.

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

The circumstances of the case

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

4. On 4 September 2011, at approximately 11.15 a.m., the motorcycle driven by the applicant ’ s son-in-law collided with a pickup truck on a highway. It appears that both the applicant ’ s son-in-law and her daughter, who was riding at the back of the motorcycle as a passenger, died on the spot. S.D., the driver of the pickup truck, was taken into detention for interrogation upon the orders of the Eskipazar Public Prosecutor.

5. Soon after the incident the Eskipazar Public Prosecutor arrived at the scene of the accident in order to carry out a preliminary examination. It appears from the public prosecutor ’ s initial incident report that the accident took place on a dual carriageway, where the traffic was flowing in single lanes on one carriageway due to roadworks on the other carriageway at the material time. According to the information that the public prosecutor received from the traffic police, the collision had occurred in the pickup truck ’ s lane.

6. During his interrogation by the gendarmerie, S.D. stated that he had been driving at a normal speed in his own lane when he noticed a motorcycle coming towards him at great speed in the same lane. Although he had tried to swerve to the right, the motorcycle had hit his vehicle on the left side. He denied any responsibility for the accident.

7. A detailed accident report was prepared by the traffic police on the same day, in which it was stated that no alcohol had been found in S.D. ’ s blood. The report also stated that the motorcycle driver, who had strayed into the opposite lane, had been entirely responsible for the accident. The traffic police also prepared a sketch map of the scene.

8. According to the crime scene report prepared by the gendarmerie the next day, the post-impact skid marks of the pickup truck were found to be 25.40 metres long, and the scratch marks left by the motorcycle on the road suggested that the collision had occurred in the pickup truck ’ s lane. According to the same report, the accident had not been caused by adverse weather conditions or any physical defects of the road. The report was accompanied by a sketch map of the accident scene.

9. On 5 September 2011 S.D. was brought before the Eskipazar Public Prosecutor and the Eskipazar Magistrates ’ Court, respectively, for questioning. He repeated the statements he had previously made to the gendarmerie. On the same day, the Eskipazar public prosecutor ’ s office requested S.D. ’ s arrest on suspicion of causing death through negligence. However, the Eskipazar Magistrates ’ Court rejected that request and ordered S.D. ’ s release from detention.

10. On 14 November 2011 the applicant requested the collection of certain evidence by the Eskipazar public prosecutor ’ s office, including any CCTV footage from the accident scene, the suspect ’ s traffic record, a technical examination of the pickup truck (the brake mechanism in particular), and a medical report on the suspect ’ s eyesight. The applicant also requested the calculation, by an expert, of the approximate speed of the pickup truck at the time of the accident on the basis of the skid marks it had left on the road.

11. On 25 November 2011 the Eskipazar public prosecutor ’ s office ordered the examination of the suspect ’ s traffic records and any available CCTV footage in accordance with the applicant ’ s request. It appears that no action was taken as regards the remaining requests.

12. On 1 December 2011 the Eskipazar Provincial Gendarmerie Command informed the public prosecutor ’ s office that there were no CCTV cameras in the vicinity of the accident scene, and that S.D. had not been involved in any traffic accidents previously.

13. On 12 December 2011 the applicant was invited to the Gültepe police station in Istanbul to make a statement. She complained that the Eskipazar public prosecutor ’ s office was not conducting the investigation in an effective manner. Once again, she requested the collection of all the evidence referred to in paragraph 10 above, as well as an examination of the suspect ’ s phone records to determine whether he had been talking on the phone around the time of the accident. She also asked to be provided with any expert reports submitted to the investigation file.

14. On 30 December 2011 the Eskipazar public prosecutor conducted an on-site examination of the accident scene with the participation of a traffic expert (a traffic police officer).

15. In his report dated 10 January 2012 (“the first expert report”) the traffic expert stated that the absence of any pre-impact skid marks suggested that neither of the drivers had had the opportunity to react in a timely manner (such as by applying the brakes or swerving to the side) to prevent the accident, which had increased the impact of the collision. He found that the motorcycle, which had strayed into the lane occupied by oncoming traffic, had been entirely responsible for the accident. The traffic expert ’ s report was not provided to the applicant.

16. The Eskipazar public prosecutor ’ s office subsequently ordered another expert report from the Forensic Medicine Institute, which conducted an examination on the basis of the material in the investigation file. In its report dated 13 February 2002 (“the second expert report”), the Forensic Medicine Institute repeated the findings of the traffic expert. It appears that that report was not sent to the applicant either.

17. Based on all the information and evidence collected, on 28 February 2012 the Eskipazar public prosecutor ’ s office delivered a decision not to prosecute S.D., who had not been found to be at fault in the incident.

18. The applicant objected to that decision, claiming in particular that she had not been sent the expert reports submitted to the investigation file, which had prevented her from challenging them, and that the public prosecutor had not collected all the evidence relevant to the incident. She also challenged the competence of the police officer who had prepared the first expert report, and claimed that the subsequent report by the Forensic Medicine Institute had merely repeated the findings of that first inadequate report.

19. On 21 June 2012 the Bartın Assize Court dismissed the applicant ’ s objection. That decision was served on the applicant on 31 July 2012.

COMPLAINTS

20. The applicant complained under Article 6 of the Convention that the Eskipazar Public Prosecutor had not collected all the evidence that could have shed light on the circumstances of the accident, and that neither the public prosecutor nor the Bartın Assize Court had provided sufficient reasoning for their decisions not to prosecute S.D. She also complained under the same provision that her rights as a complainant ( müşteki ) to participate in the proceedings in an effective manner had been violated as (i) the public prosecutor had failed to ensure equality of arms between the defendant and herself by not fulfilling his investigatory duties; (ii) her right to be informed of all the evidence, in particular of the expert reports submitted to the file, had not been respected; and (iii) she had not been informed as to why her requests for the collection of additional evidence had not been acted upon.

21. The applicant also complained under Article 13 that the investigation conducted by the Eskipazar public prosecutor ’ s office had not served to establish the facts of the case and had therefore been ineffective and that the failure to prosecute the suspect, despite the evidence against him, had breached her right to an effective remedy under Article 13.

THE LAW

23. The Government argued that since the present case did not involve an intentional infringement of the right to life, the appropriate remedy in the circumstances was a civil-law remedy for compensation. In these circumstances, the applicant ’ s complaints under Article 6 of the Convention concerning the ineffectiveness of the criminal investigation were inadmissible for being incompatible ratione materiae with the provisions of the Convention. Alternatively, since she had not sought any civil remedy, the application could be declared inadmissible for failure to exhaust the available domestic remedies. The Government also added, as a further alternative ground for inadmissibility, that the applicant could not claim to be a victim in connection with the death of her daughter and son ‑ in ‑ law, because the latter had been found to be entirely responsible for the accident in question.

24. In her response to the Government ’ s arguments, the applicant claimed in particular that the outcome of the criminal investigation would have prevented her from asserting any rights before civil courts and that, in any event, her principal aim was to secure the establishment of the truth through effective criminal proceedings.

25. The Court considers at the outset that the complaints submitted under Articles 6 and 13 are mainly a criticism of the judicial response provided by the relevant State authorities in the aftermath of the fatal accident, and as such fall to be examined under Article 2 of the Convention alone, the relevant part of which reads as follows:

“1. Everyone ’ s right to life shall be protected by law. (...).”

26. The Court reiterates in this connection that in the event of serious injury or death, the duty to safeguard the right to life under Article 2 requires the State to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see, for instance, Dodov v. Bulgaria , no. 59548/00, § 83, 17 January 2008, and CiechoÅ„ska v. Poland , no. 19776/04, § 67, 14 June 2011). Although this obligation may require the provision of a criminal-law remedy in certain special circumstances (see, for instance, Öneryıldız v. Turkey, [GC], no. 48939/99, §§ 93-96, ECHR 2004 ‑ XII; Mehmet Åžentürk and Bekir Åžentürk v. Turkey, no. 13423/09, §§ 104-106, ECHR 2013 ; Oruk v. Turkey , no. 33647/04, §§ 50 and 65, 4 February 2014; AydoÄŸdu v. Turkey , no. 40448/06, §§ 62-64 and §§ 87 ‑ 88, 30 August 2016; and Gençarslan v. Turkey ( dec. ), no. 62609/12, §§ 19-22, 14 March 2017), the Court stresses that neither Article 2 nor any other provision of the Convention guarantees an applicant the right to secure the prosecution and conviction of a third party or a right to “private revenge” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I, and Öneryıldız , cited above, § 147) . Where death results from negligence, for instance, the obligation under Article 2 may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see CiechoÅ„ska , cited above, § 66).

27. The Court notes that the victims in the instant case lost their lives as the result of a road traffic accident. The Eskipazar public prosecutor ’ s office initiated an investigation, of its own motion, against S.D. for causing death through negligence, but eventually decided not to proceed with his prosecution for lack of any evidence pointing to his responsibility. Before the Court, the applicant did not argue that the victims had been killed intentionally, or that there had been any unresolved suspicions in that regard. Nor did she argue that the death in question had been caused by negligence that went beyond a mere error of judgment or carelessness (such as in the case of Sinim v. Turkey , no. 9441/10, § 63, 6 June 2017) . Without challenging the public prosecutor ’ s classification of the accident as one caused by negligence, she complained that he had not collected all the evidence relevant for the purposes of deciding whether it had been S.D. or her son ‑ in-law whose negligence had caused the accident. The applicant ’ s complaints, therefore, revolve around the investigative measures that the public prosecutor should have taken and the alleged denial of some of her procedural rights.

28. The Court reiterates, however, that it is not called upon to determine whether the applicant ’ s procedural rights as a complainant were duly observed during the criminal investigation stage or to identify what sort of investigatory steps the public prosecutor should have taken, as the obligation under Article 2 does not necessarily require the State to provide criminal proceedings in cases – such as the present one – involving non ‑ intentional infringements of the right to life, even if it is clear that such proceedings could by themselves have fulfilled the requirements of Article 2 (see, for instance, Å ilih v. Slovenia [GC], no. 71463/01, § 202, 9 April 2009 ). In other words, even assuming that the criminal proceedings had been deficient, as alleged by the applicant, the obligation under Article 2 could still be satisfied in the instant case by way of a civil-law remedy capable of establishing the facts and the responsibility for the accident, and enabling her to obtain redress, as appropriate (see, for instance, Anna Todorova v. Bulgaria , no. 23302/03, § 73, 24 May 2011; CiechoÅ„ska , cited above , § 66; and Gençarslan , cited above, §§ 19-22).

29. The Court notes from the information in the case file that the applicant did not make use of any civil-law remedies. While she claimed that she would have had no prospects of success before a civil court in view of the outcome of the criminal investigation, the Court reiterates that under Turkish law, civil courts are not bound by the conclusions in criminal proceedings as to the absence of fault when deciding on the civil responsibility of the perpetrator, and that they have the competence to collect evidence and order new expert reports as they deem necessary for their own purposes (see, for instance, Mustafa TürkoÄŸlu v. Turkey , no. 58922/00, § 40, 8 August 2006; Dikici v. Turkey , no. 18308/02, § 25, 20 October 2009; see Güvenç v. Turkey ( dec. ), no. 43036/08, § 40 and §§ 42 ‑ 44 , 21 May 2013 ; and Sıdıka Ä°mren v. Turkey , no. 47384/11, § 64, 13 September 2016), and to provide redress as appropriate. The applicant has not submitted any arguments as to why the present case was an exception to that general rule. She has instead reiterated her wish to have the responsibility of S.D. established in criminal proceedings (see paragraph 24 above), but that right does not exist under any provisions of the Convention, as indicated in paragraph 26 above.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 25 January 2018 .

Hasan Bakırcı Robert Spano              Deputy Registrar President