SECOND SECTION

DECISION

Application no. 10150/10 Ä°brahim Halil BEYHAN against Turkey

The European Court of Human Rights (Second Section), sitting on 26 May 2020 as a Committee composed of:

Valeriu Griţco, President, Arnfinn Bårdsen, Peeter Roosma, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 27 January 2010,

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, Mr Ä°brahim Halil Beyhan, is a Turkish national, who was born in 1968 and lives in Ä°stanbul. He was represented before the Court by Ms I. Kadirhan Peker, a lawyer practising in Ä°stanbul.

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 2 December 2006 the applicant ’ s nine-year-old son, who was playing with his friends on the street near a playground, was run over by a truck that was moving in reverse. He died instantly on the spot.

5 . Following the incident, the police officers who were called to the scene prepared a traffic accident report, drew a sketch of the scene of the incident and wrote three reports. According to these documents, it was reported that when the police had arrived, the applicant ’ s son was already dead, and upon receiving the instructions of the public prosecutor by phone, the body was transferred to the hospital for a body examination. The officers further noted that on the one side of the road there was a playground and on the other side there was the entrance of a construction site without any road sign or warning. In the accident report, the driver of the truck had been noted as 90 % at fault.

6 . On the same day, a post mortem examination was conducted on the body in the presence of the public prosecutor. It was decided to transfer the body to the Forensic Medicine Institute for a full autopsy to establish the definite cause of death.

7 . On 3 December 2006 a full autopsy was carried out and according to the final report, dated 12 January 2007, the cause of death was indicated as general body trauma due to skull fractures, multiple fractures on the pelvis, phalanges and ribs, together with cerebral haemorrhage and laceration of brain tissue.

8 . On 3 December 2006 the Gaziosmanpa ş a Public Prosecutor initiated an investigation into the accident and requested that the driver of the truck be placed in detention on remand. On the same day, the driver was brought before the Gaziosmanpaşa Magistrates ’ Court in Criminal Matters. In his statement, the driver explained that he had been carrying debris to a construction site when he needed to move back to let another vehicle pass. He recalled that he had controlled the mirrors and put on the back up alarm but he had not seen the children behind the truck. After taking the driver ’ s statement, the Magistrates ’ Court decided not to place him in detention on remand.

9 . On 22 May 2007 the Public Prosecutor initiated criminal proceedings against the driver before the GaziosmanpaÅŸa Criminal Court, accusing him of causing death by imprudence and negligence under Article 85 of the Criminal Code. The applicant joined the criminal proceedings as a civil party.

10 . While the criminal proceedings against the driver were pending, the applicant filed a further complaint with the Public Prosecutor against the construction company that the driver had been working for. The applicant alleged that the construction company did not have the requisite licence to carry construction debris. On 19 March 2009 the Public Prosecutor delivered a decision of non-prosecution against the construction company. The applicant ’ s objection filed against this decision was subsequently rejected by the Istanbul Assize Court on 15 July 2009.

11 . On 29 November 2011 the applicant filed a further complaint with the Gaziosmanpaşa Public Prosecutor, this time against the parties involved in the construction work on the river bed located in the premises of a military zone, and which was initiated as part of a flood protection plan by the Istanbul Metropolitan Municipality. The complaint was therefore directed against the Istanbul Metropolitan Municipality, the Istanbul Water and Sewerage Administration (ISKI), the MCC Konsorsiyum which was the main company responsible for the construction and the 66 th Brigade of the Land Forces. On 18 December 2012 the Public Prosecutor delivered a decision of non-prosecution referring to the criminal proceedings that were pending against driver who had been directly involved in the accident. The applicant ’ s objection filed against this decision was subsequently rejected by the Istanbul Assize Court on 20 March 2012.

12 . On 18 April 2012 the Gaziosmanpaşa Criminal Court found the driver guilty as charged and sentenced him to one year and eight months ’ imprisonment. Taking into account that the driver had expressed remorse and considering his good conduct in the course of the proceedings, the court decided to suspend the execution of the accused driver ’ s sentence.

13 . On 2 December 2013 the Court of Cassation quashed the judgment of the first instance court, considering that a heavier sentence should have been imposed on the accused driver.

14 . On 21 May 2014 the GaziosmanpaÅŸa Criminal Court declared lack of jurisdiction and transferred the case to the Istanbul Assize Court.

15 . On 14 October 2014 the Istanbul Assize Court found the driver guilty as charged and sentenced him to five years ’ imprisonment. The court then converted the prison sentence into a fine, amounting to 36,500 Turkish liras (TRY) and decided to suspend his driving licence for one year.

16 . On 31 March 2016 the Court of Cassation upheld the judgment of the Istanbul Assize Court.

17 . On 12 June 2016 the applicant filed an individual application with the Constitutional Court.

18 . On 14 December 2016 the Constitutional Court dismissed the application holding that there was no element in the case file which would lead it to conclude that the criminal investigation and the ensuing criminal proceedings against the accused driver had not been effective or adequate. In so far as the applicant complained that no proceedings had been initiated against the driver ’ s employer company and the other institutions that he had considered as responsible, the Constitutional Court held that this part of the application had been inadmissible due to non-exhaustion of domestic remedies as the applicant had not brought compensation proceedings against these third parties.

19 . The applicant claimed that as part of a flood protection plan, the Istanbul Metropolitan Municipality had started a construction work on a river bed located in the premises of a military zone and that the truck that had run over and caused the death of his son was being used in this construction work. He further alleged that requisite licences had not been obtained. Based on this information, in 2017 the applicant filed several compensation proceedings against relevant institutions, allegedly involved in the accident. During the proceedings, the applicant put forward all his submissions to the consideration of the domestic courts. After examining the relevant material, all cases brought against the Istanbul Metropolitan Municipality, the Ministry of Defence, and the main construction company which had undertaken the work were dismissed by the courts. The courts held that there had been no link between the accident and the construction work and the driver was the sole person who had been responsible for the accident because he had not taken the necessary safety measures as he had been driving in reverse.

20 . The applicant further brought compensation proceedings against the driver, the company that owned the vehicle and the insurance company, claiming both pecuniary and non-pecuniary compensation. On 8 October 2013 the Gaziosmanpaşa Civil Court of General Jurisdiction delivered its decision. As regards pecuniary damage, the court took into consideration the substantial amount of compensation that had already been paid to the applicant by the insurance company, and ordered the payment of TRY 1,086.98 with interest running from the date of the accident in respect of pecuniary damage. As regards non-pecuniary damage, the court held that the applicant should be awarded a total of TRY 47,500 (approximately 18,300 euros (EUR) at the material time). It was noted that the driver and his employer company were jointly and severally liable for this amount. This judgment was upheld by the Court of Cassation on 12 May 2014 and the applicant ’ s rectification req uest was further rejected on 16 February 2015.

21 . According to the applicant, he was not able to have the judgment of 8 October 2013 enforced, as the driver was insolvent and the company that owned the truck had gone into liquidation.

22 . The applicant did not file an individual application with the Constitutional Court in respect of the fairness of the impugned compensation proceedings or regarding his inability to have the judgment enforced.

COMPLAINT

23 . The applicant complained under Articles 2, 6 and 13 of the Convention that the investigation into the circumstances of the accident in which his son died had not been effective. The applicant alleged that there had been shortcomings in the criminal investigation, that he had been unable to have the enforcement of the compensation that had been awarded by the domestic courts, and that the national courts had erred in their interpretation of the facts of the case by deciding that the Istanbul Metropolitan Municipality, the Istanbul Water and Sewerage Administration (ISKI), the private company, the MCC Konsorsiyum and the Ministry of Defence, who were all parties to the construction work, had no liability in the accident.

THE LAW

24 . The applicant complained about the ineffectiveness of the domestic investigation following his son ’ s death. Firstly, he alleged that there had been shortcomings in the criminal proceedings that had been brought against the driver. He further maintained that the domestic courts had solely considered the incident as a simple traffic accident and failed to establish the link between the allegedly unlawful construction and the truck that had hit his son.

25 . The Government contested the claims.

26 . The Court notes at the outset that the applicant ’ s complaints fall to be examined under Article 2 of the Convention alone, which in so far as relevant reads:

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

27 . The Government argued at the outset that the application should be declared inadmissible under Article 35 of the Convention for being incompatible ratione materiae . They claimed in this regard that the present case did not involve an intentional infringement of the right to life and that the applicant had been provided adequate redress by bringing compensation proceedings (see para. 20 above). In this connection the Government further referred to the criminal proceedings against the driver and recalled that he had been found guilty by the domestic courts. Secondly, the Government argued that the applicant had failed to exhaust domestic remedies as he had failed to apply to the Constitutional Court following the respective compensation proceedings.

28 . At the outset, the Court considers that it is not necessary to examine the Government ’ s objection as to ratione materiae incompatibility, as the application is in any event inadmissible for the reasons stated below.

29 . The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This substantive positive obligation entails a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. Secondly, there is a further substantive positive obligation to take preventive operational measures to protect an identified individual from another individual. The Court has held that such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every alleged risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In order to engage this positive obligation, it must be established that the authorities knew or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Thirdly, the Court reiterates that the State ’ s duty to safeguard the right to life must be considered to involve not only these substantive positive obligations, but also, in the event of death, the procedural positive obligation to have in place an effective independent judicial system. Such system may vary according to circumstances. It should, however, be capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. This procedural obligation is not dependent on whether the State is ultimately found to be responsible for the death under its substantive limb, but constitutes a separate and autonomous duty. It entails an obligation to carry out an effective official investigation when individuals have been killed as the result of the use of force, but may extend to accidents where an individual has been killed. In this conte xt, the Court has found Article 2 to be equally applicable in the context of accidents, notably road traffic accidents, where the direct victim died (see Nicola e Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 134-138, 25 June 2019).

30 . The Court notes that in the present case, the domestic judicial authorities have established that the accident was caused as a result of the negligence of the driver, who had failed to take the necessary safety measures and run over and killed the applicant ’ s nine-year-old son while driving in reverse and that it was not intentional. The Court has no reason to depart from that finding, which the applicant has not challenged.

31 . The applicant complained about the effectiveness of the investigations following the death of his son. In this connection, he firstly argued that there had been certain shortcomings in the criminal proceedings against the driver; that the compensation proceedings against the driver and his employer had not been fair and that the national courts had erred in their evaluation of the facts of the case in the proceedings that had been initiated against the institutions, which he held responsible for the accident. In this connection, the applicant maintained that the driver had been carrying the debris of a construction on a riverbed which was situated in the premises of a military zone, and that this work had been undertaken by the Istanbul Metropolitan Municipality, and the Water and Sewerage Administration (ISKI) with the intermediary of a private company, the MCC Konsorsiyum. He argued that the construction lacked the requisite licences and the truck should not have been used on the road where his son was killed.

32 . The Court is therefore called to examine the applicant ’ s three-fold allegations to determine whether the domestic authorities have conducted an effective investigation into the death of the applicant ’ s son. Firstly, as regards the criminal proceedings initiated against the driver, there appears no element in the case file which would lead the Court to conclude that the criminal investigation and the ensuing criminal proceedings against the accused driver had not been effective or adequate. In this connection, the Court observes that immediately after the accident, all relevant forensic evidence had been collected, the applicant was able to join the criminal proceedings as a civil party and he had been able to challenge all domestic court decisions and put forward his arguments. The domestic courts had conducted a thorough examination of the case and concluded that the driver had been guilty of causing death due to imprudence and negligence. The Court therefore considers that the applicant ’ s complaints regarding the conduct of the domestic proceedings in the criminal proceedings are not substantiated and should be declared as manifestly ill-founded.

33 . Secondly, as regards the compensation proceedings brought against the driver and his employer, while the Court acknowledges that the applicant ’ s inability to have the judgment of 8 October 2013 enforced is regrettable, it recalls, in this respect that the Government have raised a preliminary objection concerning non-exhaustion of domestic remedies (see para. 27 above). The Court recalls its established case-law according to which the remedy before the Constitutional Court was found to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012 ( Uzun v. Turkey (dec.), no. 10755/13 , §§ 68 71, 30 April 2013). Accordingly, the applicant should have availed himself of the remedy before the Constitutional Court and therefore this part of the application is inadmissible due to non-exhaustion of domestic remedies.

34 . Thirdly, as to the applicant ’ s allegation that the national courts had erred in their evaluation of the facts of the case in the proceedings that had been initiated against relevant institutions, the Court notes initially that the applicant has not also availed himself of the remedy before the Constitutional Court following the dismissal of the compensation proceedings. Furthermore, although the applicant considered that the Istanbul Metropolitan Municipality, the Istanbul Water and Sewerage Administration (ISKI) and a private company, the MCC Konsorsiyum and the Ministry of Defence were responsible for the accident, the domestic courts found it established that the accident had been caused due to the negligence of the driver, who had failed to take the necessary safety measures when he was moving in reverse. The courts found no link between the construction and the accident. In delivering their decisions, the courts took into consideration the applicant ’ s submissions but using their discretion, dismissed the compensation case. The Court cannot criticise this as having been unreasonable, particularly in the light of its own constant case-law that the domestic authorities must be allowed some discretion in deciding which evidence is relevant to the investigation (see, Nicolae Virgiliu Tănase , cited above, § 183).

35 . Having regard to the overall assessment of the criminal and civil proceedings, the Court concludes that it cannot be said that the legal system, as applied in respect of the present case, failed to adequately deal with the applicant ’ s case.

36 . It follows that the application is inadmissible as a whole as manifestly ill-founded and must be r ejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible .

Done in English and notified in writing on 25 June 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President