SECOND SECTION

DECISION

Application no . 15022/08 Kemal HACIÖMEROĞLU against Turkey

The European Court of Human Rights ( Second Section ), sitting on 13 October 2015 as a Committee composed of:

Helen Keller , President, Ksenija Turković , Robert Spano , judges , and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 24 March 2008 ,

Having regard to the comments submitted by the parties ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kemal Hacıömeroğlu , is a Turkish national, who was born in 1955 and lives in Ankara . He was represented before the Court by Mr Mehmet Özşahin , a lawyer practising in Ankara .

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

The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows.

On 6 February 2005 a road traffic accident took place in Ankara which resulted in the deaths of four persons, including the applicant ’ s wife, son and daughter. The car driven by the applicant ’ s son went over on to the lane of the oncoming traffic and collided with two other cars there.

The accident occurred on a stretch of motorway with a 4 metre -wide central reservation. The central reservation was being rebuilt by a contracting company at the time of the accident and there were no concrete blocks to separate the road as they had been removed during the construction of the underground reinforced concrete, timber blocks and asphalt works.

On t he day of the accident two reports were prepared by the police officers who visited the accident scene. It was mentioned in the reports that the traffic signs indicating that road maintenance work was being carried out were damaged. Three experts from the regional police office arrived at the accident site to take photographs and to prepare a report. The report stated that there were crushed warning signs at the side of the road, some of which were ten metres away from the place where the accident had taken place.

Another report which was drawn up by police officers on 10 February 2005 stated that there were no traffic signs at the scene.

According to the applicant , there were no warning signs for the road maintenance work and all the evidence at the accident scene had been destroyed by the employees of the contracting company soon after the accident.

After the accident the prosecutor went to the hospital to oversee the post ‑ mortem examinations of the four deceased persons. Under instructions from the prosecutor, police officers took statements from eyewitnesses.

On 14 February 2005 the applicant ’ s representative lodged a request with the Ankara Magistrates ’ Court for the establishment of the state of evidence ( delil tespiti ) relat ing to the accident. Thereupon, a judge went to the crime scene with a number of experts. Both the crime scene and the cars involved at the accident were examined.

On subsequent dates the prosecutor questioned a number of other persons, including the applicant, the persons who had been involved in the accident and the executive of the contracting company. The prosecutor also sought and obtained a report from the Forensic Medicine Institute to assist with his enquiries.

On 18 November 2005 the prosecutor submitted a bill of indictment to the Ankara Assize Court in which he charged the two drivers who had been involved in the accident, as well as the person in charge of the contracting company that had undertaken the road maintenance work. The Ankara Assize Court accepted the indictment and a criminal case was thus opened against the accused persons.

The trials before the Ankara Assize Court started on 17 January 2006. The assize court has held six hearings during which it heard t he applicant, the defendants and other interveners, various witnesses and the police officers who had drawn up the accident reports. Expert reports and the crime scene footage were also examined by the court. During the trial th e applicant submitted various petitions and a report prepared by an expert dealing with the faults of the parties in the acc ident . T he Ankara Assize Court also appointed its own experts, three a cademics specialised in the field of r oad and t raffic issues at the Istanbul Technical University , to prepare an expert report.

On 9 October 2006 the Ankara Assize Court decided to acquit all defendants on the ground that they had not behaved negligently. The Assize Court considered that the applicant ’ s son, who had died in the accident, had caused the accident by losing control of his car.

On 24 September 2007 the Court of Cassation rejected an appeal lodged by the applicant, and upheld the judgment of the first instance court.

Acting on a request from the applicant, the Chief Prosecutor of the Court of Cassation decided to take the case to the G rand Chamber of the Court of Cassation ’ s Criminal Division. In his request the Chief Prosecutor argued that the first instance court had failed to examine whether the precautions laid down in the Standards for Traffic Markings in Road Construction and Maintenance and Repairs, which were published by the General Directorate for Highways and which set out in detail the requirements for road warning signs, had been observed during the road maintenance work. He also argued that the evidence in the case file had not been collected properly by the police during the investigation stage and that the conflicting information emanating from the evidence in the file regarding the existence of traffic signs had not been eliminated by the first instance court.

On 27 November 2007 the objections of the Chief Prosecutor were rejected by the G rand Chamber of the Court of Cassation ’ s Criminal Division.

COMPLAINTS

The applicant complained under Articles 2, 6 and 13 of the Convention that the necessary measures to protect the lives of his son, daughter and wife had not been taken by the State.

He further complained that an effective investigation had not been carried out in accordance with Article 2 of the Convention regarding the accident. In this connection the applicant argued that the investigating prosecutor had not gone to the accident scene to carry out the necessary examinations and to supervise the police officers when collecting the evidence and that the investigation had not started until some nine months after the accident.

THE LAW

The Court considers that the applicant ’ s complaints concern the respondent State ’ s positive and procedural obligations under Article 2 of the Convention, and deems it appropriate to examine those complaints solely from the standpoint of Article 2 of the Convention the relevant part of which reads as follows:

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

...”

The Government maintained that detailed legal provisions relating to road construction works existed in the national law. In accordance with those provisions, safety of the traffic, road s , passenger s and driver s were protected a dequately . Moreover, measures to be taken during road works and sanctions for failure to take such measures we re laid down in the national legal order and such works we re subjected to the supervision of the public authorities .

The Government also argued that an effective investigation had been conducted by their authorities. In any event, according to the Court ’ s case ‑ law , if the inf r ingement of the right to life wa s not caused intentionally, the positive obligation imposed by Article 2 of the Convention to set up an effective judicial system did not necessarily require the provision of a criminal-law remedy in every case. The obligation may for instance also be satisfied if the legal system afford ed victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the relevant persons or institutions to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.

The Gove rn ment were of the opinion that there was no intentional inf r ingement of the right to life of the members of the applicant ’ s family and on ly the existence of negligen t behaviour c ould be argued in the accident. Having regard to the applicant ’ s fail ure to initiate any compensation proceedings before the domestic courts , the Gove rn ment invited the Court to reject complaints for non-exhaustion of domestic remedies.

The applicant reiterated his complaints and argued that the main question to be answered by the Government was whether or not the way in which the accident had taken place was examined by the judicial authorities in a scientific and realistic manner. In that connection he argued that the on-site reports and other investigation documents had been prepared in a way that did not reflect the truth and that his objections to those reports and document had not been taken into account by the national authorities. He also argued that the investigation conducted before the trial commenced had not been finished for a period of eight or nine months and that the statements made by a number of eyewitnesses regarding the destruction of the evidence at the accident scene had not been taken into account. Finally, the applicant added that, although it was evident that the Directorate for Public Roads had failed to take the necessary safety measures on the motorway, that Directorate had not been called to account before the judicial authorities.

The Court reiterates that Article 2 of the Convention does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it places a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. Such a positive obligation has been found to arise in a range of different contexts examined so far by the Court, for example, in the health ‑ care sector, be it public or private, as regards the acts or omissions of health professionals (see Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004 ‑ VIII, with further references) , as well as in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ X II ), concerning safety on building sites (see Pereira Henriques and Others v. Luxembourg ( dec. ), no. 60255/00, 26 August 2003), and on a railway station (see Bone v. France ( dec. ), no. 69869/01, 1 March 2005).

T he above list of areas in which the positive obligation arises is not exhaustive. In the Ciechońska v. Poland case, where the applicant ’ s husband had died after a tree fell on him in a health resort, the Court found that the State ’ s duty to safeguard the right to life extended to the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (no. 19776/04, § 67, 14 June 2011).

I n a number of exceptional situations the Court has held that the authorities ’ positive obligations under Article 2 of the Convention entailed resorting to criminal law remedies (see Öneryıldız , cited above, § 93, as well as Al Fayed v. France ( dec. ), no. 38501/02, §§ 73-78, 27 September 2007 ; and Railean v. Moldova , no. 23401/04, § 28, 5 January 2010 concerning road traffic accidents in which lives were lost in suspicious circumstances). However, the Court agrees with the respondent Government ’ s submissions and considers that in cases such as the present application in which the infringement of the right to life was not caused intentionally, the positive obligation imposed by Article 2 of the Convention to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy (see, mutatis mutandis , Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I).

The Court observes at the outset that the applicant did not bring a compensation claim against th ose whom he considered to be responsible for the accident. Nevertheless, having regard to the fact that a criminal investigation and a trial were in any event carried out, in its examination of the applicant ’ s complaints the Court will have regard to the way in which they were conducted and the conclusions reached at the end of them (see, mutatis mutandis , Prynda v. Ukraine , no. 10904/05 , § § 48-57 , 31 July 2012 ).

The Court observes that the road traffic accident which resulted in the deaths of, inter alia , the applicant ’ s wife and two children took place on 6 February 2005 . The Court also notes that the same day a number of police officers went to the scene and drew up their reports. The same day post-mortem examinations were carried out on the bodies of those who lost their lives and the prosecutor supervised those examinations.

In his examination, which started on 6 February 2005 and continued until he prepared his indictment on 18 November 2005, the prosecutor took a number of other relevant investigative steps which are detailed above.

The Ankara Assize Court accepted the indictment and started the trial on 17 January 2006. It held six hearings during which it questioned t he applicant, the defendants and other interveners, various witnesses and the police officers who had drawn up the accident reports. It also examined a number of e xpert reports on the accident and the crime scene and obtained another report from three a cademics . It completed the trial in less than nine months and adopted its judgment on 9 October 2006.

The appeal lodged by the applicant was decided in less than a year on 24 September 2007 and the G rand Chamber of the Court of Cassation ’ s Criminal Division examined the request made by the Chief Prosecutor of the Court of Cassation and handed down its decision on 27 November 2007.

The Court observes that the investigation, the trial and the appeal proceedings took a total of just under two years and ten months. Having regard to the steps taken during that period, the Court considers that the national authorities cannot be said to have failed to act promptly.

The Court has also examined the steps taken in the course of the investigation and the subsequent trial and does not see any reason to cast doubt on their effectiveness and does not observe any arbitrariness on the conclusions reached at the end of them.

To the extent that those proceedings and the findings are criticised by the applicant, and in so far as he alleges that the respondent State has failed to protect the right to life of the members of his family as a result of its agents ’ negligence, the Court considers that it would have been open to the applicant to bring compensation proceedings and to raise those arguments during the course of the compensation proceedings. To that end, the Court observes that the applicant has not sought to challenge the Government ’ s submissions that compensation remedies would represent an adequate forum for his complaints.

Therefore, the Court considers that the application must be rejected as being manifestly ill-founded 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 5 November 2015 .

Abel Campos Helen Keller              Deputy Registrar President