JOINT CONCURRING OPINION OF JUDGES SPANO AND BIANKU

1. While we agree with the finding of a violation in the applicant ’ s case, we have some difficulties with the approach adopted by the majority in reaching that conclusion.

2. As the Court rightly observes, it has thus far only adopted the approach, that a criminal law remedy is required in cases involving non-intentional infringements of the right to life in the context of dangerous activities, when lives have been lost as a result of events “occurring under the responsibility of the public authorities and where the negligence attributable to those authorities went beyond an error of judgment or carelessness” (see paragraph 62 of the judgment).

3. We agree that the facts of the present case do not fall under this framework of analysis, as the activity in question, though dangerous, was not carried out by or under the responsibility of public authorities. In other words, the activities at the origin of the fatal accident did not implicate, directly or indirectly, any exercise of public authority or supervision. Therefore, we cannot see how the case law quoted by the majority in paragraph 62 could have justified the requirement of a criminal investigation per se in the present case, if a civil remedy was afforded that could have allowed for the efficient elucidation of the facts and provided adequate deterrent effect.

4. We thus disagree with our colleagues ’ view that, on the facts, an effective criminal investigation was “nevertheless” necessary in the present case to satisfy the requirements of Article 2 of the Convention. The Court advances two arguments for this finding.

5. First, in paragraph 63, the Court proceeds by concluding for itself, and without any domestic factual findings, that the accident in question “seems to have involved a deliberate disregard of the relevant rules on the transportation of dangerous goods”. Furthermore, the Court finds that all the various factual elements it identifies “taken together suggest that while it was certainly not caused intentionally, the death in the instant case resulted from the responsible parties ’ voluntary and reckless disregard of their legal duties under the relevant legislation, as opposed to a simple omission or human error” and this in the Court ’ s opinion sets the case apart from other cases of non-intentional deaths where it has found a civil remedy to be sufficient.

6. This goes very far in our view. Even assuming that the Court might have been capable of concluding that the actions seemed to have involved the deliberate and reckless disregard of rules on the storing and transporting of dangerous substances, we are not persuaded by the finding that the performance of a legal commercial activity by a private company or individual, while not in full compliance with the technical and administrative safety criteria laid down by law, requires automatically the enforcement of criminal law provisions. While it is true that the authorities should endeavour to make sure that the legislation on storing and transporting dangerous substances is implemented in practice, this does not mean that their obligation to initiate a criminal investigation is automatically triggered in every case where life is lost or is put in danger by accidents related to dangerous substances. Importantly, there is no evidence of any shortcomings in the supervision on the part of public authorities, in the sense that they were aware of or in control of the situation when the accident took place, or that they should have been aware of the violation of the applicable rules by the transport company [2] . While it is true that they must always make all efforts to guarantee that the specific legislation adopted in the field is applied in practice, not all accidents involving dangerous substances are such as to call for criminal proceedings.

7. Secondly, we are not convinced by the reasoning elaborated at paragraph 64. It is not for this Court to make findings on whether particular domestic criminal law provisions may be applicable to a particular set of facts. Therefore, we do not agree that the Court was justified in establishing that in the present case the act of transporting certain dangerous goods, without the permission of the competent authorities, where those goods contributed to the loss of life as a consequence of a traffic accident, necessitated, as such, a criminal investigation in accordance with Article 174 § 1 of the Turkish Criminal Code. This is pure fourth-instance reasoning in our view.

8. To sum up, the Contracting Parties are, in accordance with Article 2 of the Convention, under a positive and procedural obligation to provide an effective judicial framework that is capable of elucidating the facts and providing adequate deterrence, when non-intentional deaths occur in private-to-private relations and where there is no indication that lives have been lost as a result of events “occurring under the responsibility of the public authorities”. The extension of the Court ’ s case-law to the set of facts in the present case was not warranted as the Turkish judicial system provided the applicant with a civil remedy that, as a general matter, was capable of elucidating the facts and providing deterrence [3] .

9. However, the reason why we concurred in the judgment is because, in the specific circumstances of the case and in the final analysis, the compensatory remedy initiated by the applicant has proved also to be ineffective in view of the fact that it has been pending before the first-instance court since July 2007.

[1] A type of fuel used for heating food, typically placed under a chafing dish.

[2] . In our opinion the circumstances of this case differ from those of the cases of Öneryıldız v. Turkey [GC] , no. 48939/98, § 116, ECHR 2004 - XII, or Budayeva and Others v. Russia, nos. 15339/02 and 4 others, §§ 128-145, ECHR 2008 .

[3] . See for example Mastromatteo v. Italy [GC], no. 37703/97, §§ 72-73 , ECHR 2002-VIII. Contrast also the case of Nencheva and Others v. Bulgaria , no. 48609/06, 18 June 2013 .