SECOND SECTION

DECISION

Application no. 61984/12 Fatma YAÄžLI and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 22 June 2021 as a Committee composed of:

Aleš Pejchal, President, Branko Lubarda, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 24 July 2012,

Having regard to the decision of 16 December 2014,

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

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They were represented by Ms F. Şüküroğlu, a lawyer from Ankara.

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 3 March 1997 the applicants’ relative, A.Y. died as a result of a workplace accident in a construction zone. Following his death, on 18 November 1997 the applicants initiated civil proceedings in the Ankara Labour Court against A.Y.’s employer, a private construction company, and requested pecuniary and non-pecuniary compensation. After examining the case file and obtaining experts’ reports, on 31 October 2000 the court decided that the construction company had been 75% at fault and awarded a substantial amount of compensation to the applicants. It was also indicated that interest would be applied to the due sum, running from the date of the incident. The applicants did not file an appeal against this decision and it became final.

5. Subsequently, in 2000 the applicants initiated enforcement proceedings and claimed the due amount. While the enforcement proceedings were pending, in 2002 the private construction company declared bankruptcy and as it did not have any existing assets, movable or immovable property, the applicants could not recover their debt. On 26 May 2011 the applicants applied to the bankruptcy estate to have their debt registered and on 24 July 2012 they obtained a certificate of insolvency.

6. Under the Code of Obligations, anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss and non-pecuniary loss (Articles 46 and 47 of Law no. 818 as it had been in force at the material time).

COMPLAINT

7. The applicants complained under Article 2 of the Convention that despite the fact that their relative had died as a result of negligence on the part of the construction company, the compensation proceedings had not yielded any result.

THE LAW

8. Relying on Article 2 of the Convention, the applicants complained that there had been no effective remedy to compensate for the death of their relative as in the end they had not been able to recover the compensation that had been awarded by the national courts.

9. The Government disputed the applicants’ allegations. In this connection, they submitted that the applicants had failed to duly exhaust domestic remedies given the fact that when their claim had been registered, the applicants failed to challenge their rank in the registry. As to the merits, the Government considered that there had been no violation of Article 2 of the Convention, as no fault could be attributed to the authorities for the death of A.Y. They also stated that they had fulfilled their procedural obligations under Article 2.

10. The Court considers that it is not necessary to examine the Government’s objection regarding non-exhaustion of domestic remedies as the application is in any event inadmissible for the following reasons.

11. The Court reiterates that the first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also involves a duty to take reasonable measures to ensure the safety of individuals within its jurisdiction as necessary (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 134-135, 25 June 2019 and the cases cited therein). These positive obligations entail above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against any threats to the right to life. In the event of serious injury or death, the duty under Article 2 of the Convention also requires an effective independent judicial system to be set up so as to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Although this obligation may require the provision of a criminal law remedy in certain special circumstances (see Nicolae Virgiliu Tănase , cited above, §§ 158-159), the Court stresses that neither Article 2 of the Convention nor any other provision of the Convention guarantees an applicant a right to secure the prosecution and conviction of a third party or a right to “private revenge”. The Court reiterates in that connection that where death results from negligence, for instance, the obligation under Article 2 of the Convention 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 Nicolae Virgiliu Tănase , cited above, § 169).

12. Turning to the facts of the present case, the Court notes that it is undisputed that the applicants’ relative died in a work accident. The Court further observes that the applicants made use of a civil remedy before the Ankara Labour Court, which established the facts and the responsibility of the parties for the accident and provided the applicants with redress. The Court notes that the applicants have not challenged the effectiveness of those civil proceedings or the amount awarded to them. Indeed, the applicants did not appeal against the judgment of the Ankara Labour Court. Moreover, the applicants were fully able to participate in the proceedings before the Ankara Labour Court, and a substantial amount of compensation was awarded on the basis of the experts’ reports.

13. This being so, the Court notes that the applicants’ complaint mainly concerned their inability to recover the due compensation amount from a private company. The Court regrets that the applicants appear not to have been able to recover the sums due from the company; however, the State’s responsibility for enforcement of a judgment against a private company extends no further than the involvement of State bodies in the enforcement procedures (see Fuklev. Ukraine , no. 71186/11, § 67, and §§ 90-91, 7 June 2005). Having regard to the documentary evidence available to it, the Court considers that the authorities have discharged their obligations to take sufficient steps for the enforcement of the judgment in the applicants’ favour.

14. In the light of the above considerations and notwithstanding the undoubtedly tragic events in this case, it cannot be held that the State failed to provide an effective judicial system in relation to the death of the applicants’ relative (see Demir v. Turkey (dec.), no. 34885/06, 13 November 2012).

15. The Court therefore concludes that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the remainder of the application.

Done in English and notified in writing on 15 July 2021.

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President

Appendix

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Fatma YAÄžLI

1959Turkish

Ordu

2.Eyüp YAĞLI

1990Turkish

Ordu

3.Ä°sa YAÄžLI

1977Turkish

Ordu

4.Musa YAÄžLI

1979Turkish

Antalya