Information Note on the Court’s case-law 193

February 2016

Cavit Tınarlıoğlu v. Turkey - 3648/04

Judgment 2.2.2016 [Section II]

Article 2

Positive obligations

Article 2-1

Effective investigation

Absence of State responsibility for injuries caused to holidaymaker in boating accident: Article 2 applicable; no violation

Facts – One evening in August 1998 at around 7 p.m. the applicant was swimming in a bathing area that was not cordoned off when he was struck by a motor boat operated by Y.Ç, who ran the water sports centre of the holiday village (“the Club”) where the applicant was holidaying. The applicant survived but was left with lasting injuries.

Law – Article 2

(a) Applicability – The accident, which had happened in a holiday village, close to a public bathing area, and had been caused by a motor boat used for water sports, had occurred in the context of an activity that posed a potential danger to human life if it was not properly regulated.

Article 2 could apply in situations where the person concerned survived a serious accident that had placed his or her life in danger. The decisive factors included the severity of the injuries and the lasting physical effe cts, which in the applicant’s case had been significant.

Hence, notwithstanding the fact that the applicant had survived his injuries, his complaint came within the ambit of the first sentence of Article 2 of the Convention, which was therefore applicable in the present case.

Conclusion : preliminary objection di smissed (unanimously).

(b) Merits

(i) Positive measures to protect life – There were no grounds for finding that the town’s sports tourism board or the other local authorities had known or should have known that at the time of the events the water sports activities organised by the Club posed a real and immediate risk to the applicant’s life or the lives of other holidaymakers. Accordingly, the administrative authorities could not be criticised for omitting to take more stringent measures in relation to the Club, which was just one of numerous such establishments in the region .

While it was mindful of the tragic dimension to the circumstances of the case, the Court was not convinced that the regulations in question had been inadequate and deficient to the extent that the State had failed in its positive obligation to protect li fe under Article 2 of the Convention. The lack of safety markings at the actual scene of the accident and the criticism of the town council with regard to the supervision of the Club’s activities were not sufficient to engage the State’s responsibility in terms of an obligation to take preventive measures at national level. To find otherwise would amount to imposing a disproportionate burden on the national authorities whilst overlooking the actions of the Club and Y.Ç. and the applicant’s own conduct.

Alth ough the applicant had known that it was late, that he was the only swimmer and that a motor boat was manoeuvring in the vicinity of the holiday village’s mooring area, he had nevertheless chosen to swim away from the shore and had not been paying attentio n to his surroundings. However, the Court was not persuaded in the present case that the applicant’s conduct had been imprudent to the point of being a decisive factor in the events.

Instead, the cause of the accident and the injuries complained of in this case had been the combined actions of the Club and of Y.Ç., although those actions were not capable of leading to a finding that the State had failed to fulfil its positive obligations.

Conclusion : no violation (six votes to one).

(ii) The courts’ respon se – The serious accident in which the applicant had been involved had resulted from the unintentional and unforeseeable actions of a private individual – Y.Ç. – who had been tried and convicted following adversarial criminal proceedings to which the appli cant had had full access, in particular through his lawyer, and in which he had intervened as a third party.

Given that the accident could not be said to have occurred in “suspicious” circumstances or to have resulted from a failure by the national authori ties to respond to a real and immediate risk to the lives of individuals of which they could not have been unaware, the positive obligations in issue had not required the authorities to institute criminal proceedings of their own motion against the Ministr y officials accused by the applicant; likewise, the collapse of the criminal proceedings did not in itself amount to a violation of Article 2.

Accordingly, viewed as a whole, the administrative court proceedings brought by the applicant against the ministe rial authorities did not disclose any bias or prejudice in examining the applicant’s allegations, nor was there any evidence to substantiate the claim that the administrative courts had sought to avoid finding that the respondent authorities were liable.

C onsequently, the applicant could not claim that the respondent State had failed, in breach of its positive obligations, to put in place an adequate and effective judicial system.

Conclusion : no violation (six votes to one).

The Court also held unanimously that there had been no violation of Article 8, bearing in mind that it had already ruled on the same facts that there had been no violation of the substantive or procedural aspect of Article 2.

© Council of Europe/European Court of Human Rights This summa ry by the Registry does not bind the Court.

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