Communicated on 16 June 2014

SECOND SECTION

Application no. 39008/08 Tahsin AYDEMİR and Işın AYDEMİR against Turkey lodged on 4 August 2008

STATEMENT OF FACTS

The applicants, Mr Tahsin Aydemir and Ms I şı n Aydemir, are Turkish nationals who were born in 1973 and 1978 respectively and live in Ç anakkale. They are represented before the Court by Mr H. Evirgen, a lawyer practising in Ç anakkale.

The circumstances of the case

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

A. Background information

At the time of the events giving rise to this application, the applicants lived in an apartment building in Çanakkale with their one-year old daughter, A.A. The ground floor of the building was used by a private company engaged in the import and export of agricultural products as a warehouse for storing almonds.

On 24 October 2007 the warehouse was fumigated against moths with aluminium phosphide by two engineers working for the Directorate of Agriculture in Ç anakkale, at the request of the company. The warehouse was sealed and quarantined in view of the highly toxic nature of aluminium phosphide. According to the fumigation record, the warehouse would stay locked until 27 October 2007.

B. Death of the applicants ’ daughter

At approximately 8 p.m. on 27 October 2007 the applicants took their daughter to the local primary healthcare centre in Eceabat. They told the doctor on duty that their baby had been crying heavily and was not eating. After examining the baby, the doctor told the applicants that the baby was suffering from wind and prescribed wind relief medication.

During the course of the night, the baby ’ s condition deteriorated with frequent vomiting. At approximately 7 a.m. on 28 October 2007 the applicants took her back to the healthcare centre, at which time they also mentioned that the ground floor of their building had been fumigated some three days before. The doctor immediately referred the applicants ’ daughter to the Ç anakkale State Hospital for further tests and treatment.

After leaving the healthcare centre, the applicants first went to their paediatrician, who similarly referred them to the Çanakkale State Hospital for further tests.

According to the report issued by the Çanakkale State Hospital on 28 October 2007, at the time of her arrival at the hospital at approximately 8.50 a.m., A.A. ’ s pupils were fixed and dilated, she did not have a pulse and she was not breathing. Cardiopulmonary resuscitation (CPR) was performed on A.A. for more than an hour with no results, at which point she was pronounced dead. In view of the applicants ’ allegations of pesticide-related poisoning, the public prosecutor was notified of the baby ’ s suspicious death.

At 11.10 a.m. on the same date, the Çanakkale Public Prosecutor ordered the police to take the statements of the applicants and the representatives of the company owning the warehouse, as well as to carry out an inspection of the place of the incident.

In their statement to the police, the applicants provided an account of the events of 27 and 28 October 2007 surrounding their daughter ’ s death, and they both held the private company occupying the ground floor of their building responsible. They stated that the building had not been properly aired after the fumigation of the almond warehouse.

At 7.10 p.m. on the same day, the police took the statement of M. Ö ., a representative of the company in question. M.Ö. confirmed that the company that he worked for stored approximately twenty-five tons of almonds in a warehouse located on the ground floor of a residential building. He stated that upon discovering moths in the warehouse, he had applied to the Directorate of Agriculture in Ç anakkale for the fumigation of the warehouse. Officials from the Directorate of Agriculture had subsequently inspected the warehouse, and had agreed to fumigate it following its insulation. The warehouse had thus been insulated with silicon and adhesive tape under the supervision of the officials. Once the insulation process had been duly completed, the officials had asked him and the company driver to step out and they had put the fumigation tablets in place. The warehouse had then been locked and the door had been further insulated with foam. M.Ö. claimed that the warehouse had stayed locked for seventy-two hours as instructed by the officials, and it had been unlocked by the same officials approximately at 12 noon on 28 October 2007. He therefore denied any responsibility for the applicants ’ daughter ’ s death.

N.A., the company driver, who was the only other person with a key to the warehouse, was also questioned by the police on the same evening. After delivering a statement that corresponded to that of M.Ö., N.A. also denied any liability for A.A. ’ s death.

In the meantime, at 4.45 p.m. on the same day the warehouse was inspected by two police officers. According to the two inspection reports prepared by the police, the warehouse, which measured approximately 200 sq. m, was located on the ground floor of a five-storey residential building. At the time of the arrival of the police, both the front door and the back garden door of the warehouse were fully open. The front door was a two-wing glass door with aluminium frame. The outer edge of the glass wings joining the frame had been insulated with adhesive tape and there were traces of foam on the lower part of the door. The traces around the metal door opening to the back garden indicated that it had been insulated with silicon on all sides. There was a third metal door opening inside the building, which had similarly been insulated with silicon. There were also three very large windows extending to the floor, again with aluminium frames. The toilet window at the back of the warehouse was broken, and there was a 1.92 x 1.96 m crack on the wall by the toilet, which had been filled with silicone. There were six radiator pipes on the ceiling; one of them was covered with foam but the others were exposed. The cable pipes on the ceiling were similarly uncovered. There were sacks of almonds on the right side of the warehouse and ash-coloured dust on certain parts of the floor, which was apparently pesticide. The police took samples of the almonds and the pesticide dust for examination.

The initial forensic examination and autopsy report issued on 28 October 2007 indicated that the applicants ’ allegation of pesticide poisoning called for a “systematic autopsy, histopathological examination and chemical analyses”, which could not be carried out in Ç anakkale. Upon the order of the Çanakkale Public Prosecutor, the applicants ’ daughter ’ s body was therefore transferred to the Forensic Medicine Institute in Bursa for in-depth examination.

On 1 November 2007 the police took the statement of the doctor who had examined the applicants ’ daughter at the local healthcare centre in Eceabat. The doctor ’ s statement corresponded to that of the applicants. The doctor stated in particular that when A.A. was first brought to the healthcare centre on 27 October 2007 she looked well and her physical examination had only revealed a wind problem. However, when she was brought in again early the next morning, her condition had worsened and she appeared very pale. The doctor said that upon learning about the recent fumigation of the ground floor of the applicants ’ building, he had referred A.A. to the Ç anakkale State Hospital for further examination.

On 15 January 2008 the Forensic Medicine Institute in Bursa issued an autopsy report in respect of the applicants ’ daughter. The report indicated that the autopsy was performed on 29 October 2007 by two doctors: a forensic medicine specialist and a pathology specialist. During the autopsy, the doctors identified petechial bleeding on the surface of A.A. ’ s lungs, with posterior congestion. There was also bleeding on the surface of the thymus. The dissection of the lung and the thymus revealed congestion. The pericardium appeared normal; following dissection of the heart, serosal bleeding was observed in the aorta. The macroscopic analysis of the heart muscles did not reveal any anatomical or pathological abnormalities. The liver looked normal externally, but was congested internally. The spleen was likewise congested. The kidneys were observed to be hyperemic, but otherwise no macroscopic pathology was noted. The pancreas, the gastric mucosa and the intestines appeared normal. The doctors noted that according to the report drawn up by the Department of Forensic Chemistry on 13 December 2007 on the basis of the urine, blood and tissue samples collected during the autopsy, no ethanol or carbon monoxide had been detected in A.A. ’ s blood. Moreover, none of the narcotic drugs systematically tested for had been found in the blood or the urine. The examination of the specimen collected from the face and the body, including from the internal organs, had likewise not revealed any of the substances looked for in systematic toxicological analysis. They further noted that the histopathology report dated 6 December 2007 had identified serum exudation from the alveolar lumen in the lungs, alveolar macrophages and neutrophil leukocytes infiltration, as well as congestion in the spleen, kidneys and the thymus, with haemorrhage in parts of the thymus.

On the basis of their observations during the autopsy, and the findings of the toxicological and histopathological examinations, the doctors concluded in their autopsy report that A.A. ’ s death had been caused by pneumonia and that no external factors had been found to have contributed to her death. The autopsy report was thus presented to the Ç anakkale Public Prosecutor.

On 11 February 2008 the applicants ’ lawyer filed a petition with the Eceabat Public Prosecutor ’ s Office requesting the transfer of the specimen collected during the deceased ’ s autopsy to the Istanbul Forensic Medicine Institute for a fresh examination. He argued in this regard that the perfunctory examination carried out by the Bursa Forensic Medicine Institute had failed to remove the suspicions regarding the cause of A.A. ’ s death. He reiterated that A.A. ’ s ailments had started following the fumigation of the almond warehouse located on the ground floor of the applicants ’ building, which had been performed without proper insulation. He added that the second applicant (A.A. ’ s mother) had similarly sought medical assistance for nausea and diarrhea the day after the fumigation, which was more than a mere coincidence. Expert opinion in this area suggested that pneumonia could be caused by inhaling acidic and alkaline gases, particularly in infants; he claimed that it was otherwise unconvincing that a perfectly healthy baby could die from pneumonia overnight.

On 11 March 2008 the Eceabat Public Prosecutor delivered a decision not to prosecute the suspects in relation to the death of A.A., holding that the death had been caused by natural reasons (pneumonia) as established in the autopsy report dated 15 January 2008. The public prosecutor also denied the request submitted by the applicants ’ lawyer for further examination of the cause of A.A. ’ s death, in view of the “detailed and satisfactory autopsy report issued by the Bursa Forensic Medicine Institute, which left no room for doubt”.

On 24 March 2008 the applicants objected to the decision of the Eceabat Public Prosecutor, reiterating their previous argument that their daughter ’ s death remained “suspicious” on account of the inadequate examination carried out by the Bursa Forensic Medicine Institute.

On 8 April 2008 the Burhaniye Assize Court dismissed the applicant ’ s objection on the basis of the autopsy report dated 15 January 2008.

COMPLAINT

The applicants complain under Articles 2 and 6 of the Convention that the investigation conducted into their daughter ’ s death was inadequate. They claim in particular that the rejection of their request for the renewed examination of the cause of death deprived them of their right to effectively vindicate their claims, which was a violation of their right of access to court.

QUESTIONS TO THE PARTIES

Having regard to the procedural obligation under Article 2 to set up an effective independent judicial system to secure legal means capable of establishing the facts of a suspicious death, holding accountable those at fault and providing appropriate redress to the victim, did the national authorities conduct an effective investigation into the applicants ’ daughter ’ s death? In this connection, were all necessary steps taken to establish the cause of A.A. ’ s death and to investigate the applicants ’ allegations of aluminium phosphide poisoning? In particular,

a. Was the autopsy, including the toxicological and histopathological tests, performed diligently in accordance with the United Nations Model Autopsy Protocol (1991)? Did the Bursa Forensic Medicine Institute possess the necessary expertise and the facilities to carry out the autopsy at issue?

b. What are the substances that are screened for in routine “systematic toxicological analyses”? Were any tests performed specifically to rule out aluminium phosphide poisoning in the instant case?

c. On what medical evidence was the diagnosis of pneumonia based? Was the medical evidence in question also consistent with aluminium phosphide poisoning in an infant?

d. Were copies of the histopathology and toxicology reports, dated 6 and 13 December 2007 respectively, made available to the applicants?

e. Did the Eceabat Public Prosecutor address the applicants ’ suspicions regarding the adequacy of the post mortem examinations carried out by the Bursa Forensic Medicine Institute or sufficiently explain why he considered the said examinations to be satisfactory? If not, did the Eceabat Public Prosecutor ’ s refusal to order a fresh forensic examination in those circumstances prevent the applicants from vindicating their claims and thus prejudice the effectiveness of the investigation (see, mutatis mutandis , Mantovanelli v. France , no. 21497/93, §§ 33-36, 18 March 1997) ?

The Government are requested to submit copies of the report of 6 December 2007 regarding the histopathological examination of A.A. ’ s internal organs and the toxicology report issued by the Department of Forensic Chemistry on 13 December 2007. They are further requested to submit any forensic examination conducted on the samples collected from the almond warehouse, as well as a copy of the investigation file .