REPUBLIC OF TURKEY
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CONSTITUTIONAL COURT
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SECOND SECTION
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DECISION
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THE APPLICATION OF SERPİL
KERİMOĞLU AND OTHERS
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(Application Number: 2012/752)
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Date of Decision: 17/9/2013
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SECOND SECTION
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DECISION
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President
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:
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Alparslan ALTAN
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Members
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:
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Serdar ÖZGÜLDÜR
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Celal Mümtaz AKINCI
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Muammer TOPAL
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M. Emin KUZ
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Rapporteur
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:
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Cüneyt DURMAZ
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Applicants
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:
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Serpil KERİMOĞLU
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Sinem KERİMOĞLU
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Önder Can KERİMOĞLU
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Yiğit Ögeday KERİMOĞLU
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Mehmet KERİMOĞLU
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Mustafa KERİMOĞLU
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Counsel
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:
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Att. Övgü ERDOĞAN
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I. SUBJECT OF APPLICATION
1. The
applicants alleged that the right to life and the freedom to claim rights were
violated by indicating that their relative Selman KERİMOĞLU had lost his life after
being buried under the rubble of a hotel as a result of the earthquake that
occurred in Van province on the date of 9/11/2011 and that they could not
obtain any result despite having seized legal remedies.
II. APPLICATION PROCESS
2. The
application was directly lodged by the attorney of the applicants on
22/11/2012. As a result of the preliminary examination that was carried out in
terms of administrative aspects, it was determined that there was no situation
which prevented the submission of the application to the Commission.
3. As it
was deemed necessary by the Second Commission of the Second Section that a
principle decision be delivered by the Section in order for the application to
be concluded, it was decided that the admissibility examination be carried out
by the Section, that the file be sent to the Section as per paragraph (3) of
article 33 of the Internal Regulation of the Constitutional Court.
4. In the
session held by the Section on 26/3/2013, it was decided that the examination
of admissibility and merits of the application be carried out together as per
subparagraph (b) of paragraph (1) of article 28 of the Internal Regulation of
the Constitutional Court.
5. The
incidents and facts which are the subject matter of the application were notified
to the Ministry of Justice on the date of 1/4/2013. The Ministry of Justice
presented its opinion to the Constitutional Court on 3/6/2013.
6. The
opinion presented by the Ministry of Justice to the Constitutional Court was
notified to the applicant on 5/6/2013. The applicant presented its written
opinion to the Constitutional Court on 27/6/2013.
III. FACTS AND CASES
A. Facts
7. As
expressed in the application petition, the facts are summarized as follows:
8. A 7,2
magnitude earthquake occurred in Van province on 23/10/2011 and numerous people
lost their lives. Aftershocks continued after the earthquake and a second 5,6
magnitude earthquake occurred on 9/11/2011. 24 people that were staying at
Bayram Otel located in the city centre of Van province including Selman
KERİMOĞLU (S.K.), who is the relative of the applicants, lost their lives when
the hotel building collapsed as a result of the second earthquake.
9. The
Office of the Chief Public Prosecutor of Van initiated ex officio an
investigation following the incident. In the expert report that was prepared
within the scope of the investigation, to which the spouse and three children
of S.K. participated as complainants, it was determined that multiple
individuals had responsibility, that the relevant units, which had not carried
out damage assessment at the building, were also negligent.
10. Within
the scope of the investigation that was conducted by the Office of the Chief
Public Prosecutor of Van, a separate viewing was carried out, core sample, reinforcement
sample and other samples were taken from the rubble of the building via
experts, the investigation file and the samples that were obtained were
delivered to the experts in order for them to draft the report. In the decision
that was delivered at the end of the investigation on the date of 26/7/2012 in
light of the report prepared by the experts, it was indicated that the building
in question was constructed in an arbitrary fashion without its static project
and statements being performed in its year of construction (1964), that the
materials and reinforcements did not fulfill the criteria of the Regulation on
Structures to be Constructed in Disaster Areas of the time, that the fact that
it had an additional floor compared to the construction license resulted in
excessive load on the building, that it was understood that although it
remained erect after the first earthquake, it collapsed after having been
affected by the aftershocks between the two earthquakes.
11. At the
end of the investigation, it was decided that a public action be lodged at Van
Assize Court regarding the hotel operator for the crime of leading to the
deaths of multiple persons with conscious negligence, that there were no
grounds for prosecution on behalf of the public regarding the owner of the
building and the other suspects, that a decision of lack of jurisdiction be
delivered regarding the Governor of Van and the officials of the Disaster and
Emergency Management Authority (AFAD) as per articles 3 and 12 of the Code on the
Trial of Civil Servants and other Public Officials dated 2/12/1999 and numbered
4483 and that the investigation file be sent to the Office of the Chief Public
Prosecutor of the Supreme Court of Appeals.
12. The
Office of the Chief Public Prosecutor of the Supreme Court of Appeals decided
on the date of 9/10/2012 that the complaint not be put into process with the
justification that the allegations pertaining to misuse of duty regarding the
Governor of Van and the officials of AFAD were not based on concrete
information and documents and that no situation that constituted a crime and
would require a preliminary examination regarding the concerned existed, this
decision was notified to the attorney of the applicants on the date of
23/10/2012.
13. Out of
the applicants, the spouse and three children of the late S.K. submitted an
objection petition to the 2nd Chamber of the Council of State via their
counsels on the date of 2/11/2012 with the request that the decision of the
Office of the Chief Public Prosecutor of the Supreme Court of Appeals of not
putting in process be lifted and that a preliminary examination be held as per
the Code numbered 4483.
14. No
objection remedy is envisaged in the Code numbered 4483 against the action of
the Office of the Chief Public Prosecutor of the Supreme Court of Appeals of
not putting in process, there is no information in the petition with regard to
the outcome of the objection filed by the applicants to the 2nd Chamber of the
Council of State.
15. In its
opinion dated 3/6/2013 pertaining to the incidents that are the subject of the
application (§ 5), the Ministry provided the following additional information,
which was confirmed by the applicants in their statements in response to the
opinion of the Ministry:
16. As a
result of the objection filed by the counsel of the applicants against the
decision of the Office of the Chief Public Prosecutor of the Supreme Court of
Appeals dated 9/10/2012 and numbered investigation 2012/128, not putting in
process D.2012/55, the 1st Chamber of the Council of State dismissed the
complaint without examination in its decision dated 6/3/2013 and numbered
M.2013/258, D.2013/294 due to the fact that no objection remedy exists in the
Code numbered 4483 against these decisions of the Offices of Chief Public
Prosecutors.
17.
Moreover, the applicants filed a case for material and moral compensation via
their counsels on the date of 23/1/2013 against Van Municipality, the Ministry
of Environment and Urbanization, the Governor's Office of Van, the Prime Ministry
representing the Disaster and Emergency Management Authority (AFAD) and the
inheritors of the owner of the hotel Mehmet Sıddık Bayram. In the trial
conducted before the 2nd Civil Court of First Instance of Van with the number
M.2013/36, at the hearing of preliminary examination conducted on the date of
28/2/2013, it was decided that the case filed against the administrations be
separated and be registered in a separate merit and that a decision of the lack
of competence be issued in terms of legal remedy.
18. The 2nd
Civil Court of First Instance of Van decided that the case filed against the
defendant administrations which it separated from the other case and registered
with the number M.2012/112 be dismissed in terms of legal remedy, that it be determined
that the court of competence and venue which would try the case was the
Administrative Court. In the justification of the decision, it was stated that
as of the date of the case, in accordance with article 3 of the Code of Civil
Procedure dated 12/01/2011 and numbered 6100, the provision as to the effect
that administrative justice had competence in these sorts of cases was annulled
through the decision of the Constitutional Court dated 16/2/2012 and numbered
M.2011/35, D.2012/23, that the decision of annulment entered into force upon
publication in the Official Gazette dated 19/5/2012 and numbered 28297, that
the plaintiffs relied upon service negligence of the defendant administrations,
that administrative courts had competence to try the full remedy actions
arising out of administrative acts and actions.
19. It is
understood that the decision in question has not become final yet, that it is
at the stage of notification to the parties.
20. Within
the scope of the investigation conducted by the Office of the Chief Public
Prosecutor of Van, a permission for investigation was also requested from the
Governor's Office of Van on the officials of the Municipality who were claimed
to have been responsible in accordance with the Code numbered 4483. The Governor's
Office of Van decided that no permission for investigation be granted on the
officials of the Municipality. The Office of the Chief Public Prosecutor of Van
submitted an objection application against this decision before the Regional
Administrative Court of Van.
21. The
applicants lodged an individual application on the date of 22/11/2012 within
due time following the notification of the decision of the Office of the Chief
Public Prosecutor of the Supreme Court of Appeals of not putting the complaint
in process to them.
B. Relevant Law
22. The
provisions of the Code dated 26/9/2004 and numbered 5237 pertaining to the
crimes of “reckless homicide” and
“misconduct in office”, which
were made the subject of complaint in the incident that is the subject of the
application are as follows:
“Reckless homicide
ARTICLE 85. –
(1) A person who causes the death of another through negligence shall
be sentenced to a prison sentence of three to six years.
(2) If the act has caused the death of more than one persons or the
death of one or more persons along with the injury of one or more persons, the
person shall be sentenced to a prison sentence of three to fifteen years.
...
Misconduct in office
ARTICLE 257. - (1) A public official who, outside the circumstances
otherwise set forth as a crime in the law, causes the grievance of individuals
or loss to the public or who derive unjust benefit for persons by acting in
contrary to the requirements of his/her duty shall be penalized with a prison
sentence of one to three years.
(2) A public official who, outside of the circumstances otherwise set
forth as a crime in the law, causes the grievance of individuals or loss to the
public or who derive unjust benefit for persons by showing neglect or delay in
carrying out the requirements of his/her duty shall be penalized with a prison
sentence of six months to two years.
(3) In the event that this does not constitute the crime of
malversation, a public official who derives benefit from individuals for
himself/herself or for another person so that s/he behaves in compliance with
the requirements of his/her duty or for this reason shall be penalized as per
the provisions of paragraph one.”
23.
Paragraph (1) of article 160 of the Turkish Code of Criminal Procedure (TCCP)
dated 4/12/2004 and numbered 5271 with the heading of ''Duty of a Public prosecutor who finds out that a
crime has been committed'' is as follows:
“The Public prosecutor who, through a denunciation or
other means, is informed about a situation which gives the impression that a
crime has been committed shall immediately commence investigating the fact of
the matter in order to decide whether there are grounds to initiate a public
action or not.
24.
Nevertheless, the trial of civil servants and other public officials due to
crimes they have committed as a result of their duties depends on permission,
the instances authorized to give permission and the procedure to be followed
are regulated in the Code numbered 4483.
25.
Paragraph one of article 12 of the Code numbered 4483 with the heading of
"Instances to carry out the preliminary
investigation" is as follows:
“The preliminary examination shall be carried out by
the competent Office of the Chief Public Prosecutor of venue as per the general
provisions. However, a preliminary investigation to be carried out with regard
to the Secretary General of the Office of the President of the Republic,
Secretary General of the Grand National Assembly of Turkey, undersecretaries
and governors shall be conducted by the Chief Public Prosecutor or the Deputy
Chief Public Prosecutor of the Supreme Court of Appeals, a preliminary
investigation regarding district governors shall be carried out by the Chief
Public Prosecutor or the Deputy Chief Public Prosecutor of the province.”
26. As per
the final sentence of article 3 of the Code numbered 4483, in the event that a
subordinate civil servant and a superior civil servant participate in the same
act, the permission is to be sought from the instance to which the superior
civil servant is answerable. In this case, the instance that is authorized to
give the trial permission that is requested for a governor or the civil
servants serving under him/her is the Chief Public Prosecutor or the Deputy
Chief Public Prosecutor of the Supreme Court of Appeals, which is the instance
that is authorized to give trial permissions with regard to governors.
27.
Paragraphs three and four of article 4 of the Code numbered 4483 with the side
heading of “Referring the incident to the
authorized instance, denunciations and complaints that will not be put in
process” are as follows:
“As per this Code, it shall be compulsory that the
denunciations and complaints to be made regarding civil servants and other
public officials not be abstract and general in nature, that individuals or
incidents be indicated in the denunciations or complaints, that the allegations
be based on serious findings and documents, that the correct name, surname and
signature as well as the work or residential address of the petition owner
figure on the denunciation or complaint petition.
The denunciations and complaints that do not fulfill the conditions
under paragraph three shall not be put in process by Chief public prosecutors
and the instances that are authorized to give permission and the situation
shall be notified to the individual who has filed the denunciation or
complaint. However, in the event that the allegations are demonstrated via
documents whose authenticity do not arouse suspicion, the condition that the
name, surname and signature as well as the work or residential address be
correct shall not be sought. Chief public prosecutors and the authorized
instances shall be obliged to keep the identity information of the denunciator
or the complainant confidential.”
28. Article
9 of the Code numbered 4483 with the side heading "Objection" is as
follows:
“The authorized instance shall notify its decision
regarding the issuance or non-issuance of the trial permission to the Office of
the chief public prosecutor, the civil servant or other public official
regarding whom the examination has been carried out and the complainant, if
applicable.
The civil servant or other public official regarding whom the
examination has been carried out can seize the objection remedy against the
decision pertaining to the issuance of trial permission; the Office of the
chief public prosecutor or the complainant can seize the objection remedy
against the decision pertaining to the non-issuance of the trial permission.
The period of objection shall be ten days starting from the notification of the
decision of the authorized instance.
The Second Chamber of the Council of State shall hear the objection for
those listed under subparagraphs (e), (f), g (except for the permission granted
by the President) and (h), the regional administrative court located within the
jurisdiction of the authorized instance shall hear it for others.
Objections shall be examined with priority and concluded within three
months at the latest. The decisions that are delivered shall be final.”
29. No
objection remedy is envisaged regarding the decision of not putting in process
delivered with regard to denunciations and complaints due to the fact that they
do not possess the qualities included under paragraph one of article 4 of the
Code numbered 4483.
30.
Paragraph (1) of article 13 of the Code of Administrative Procedure dated
6/1/1982 and numbered 2577 with the heading of ''Directly
filing a full remedy action'' is as follows:
"Those whose rights are violated due to administrative actions
need to request the fulfillment of the rights thereof by applying to the
related administration within one year following the date on which they are
informed about these procedures upon the notification or in any other way and
within five years following the date of the action in any case before they file
an administrative case. In the event that these requests are partly or fully
dismissed, a case can be filed within the period starting from the date
following the notification of the action about this matter or, if no response
is provided about the request within sixty days, following the date on which
the period for response expires."
31. Article
49 of the Turkish Code of Obligations dated 11/1/2011 and numbered 6098 with
the heading of "Responsibility"
which regulates obligation relations arising from tort actions is as follows:
"Those who incur damages on others as a result of negligent and
illegal acts shall be responsible for compensating for such damages.
Even though in case of absence of a rule of law that prohibits damaging
acts, those who intentionally harm others as a result of unethical deeds and
actions shall be responsible for compensating for such acts."
32. Article
74 of the Code numbered 6098 which regulates the relation of obligation
relations arising from tort actions with the Criminal Law is as follows:
"As the judge decides on the fault of the damaging party, on
whether or not the latter has a discerning power or whatsoever, s/he shall
neither be bound by the provisions on responsibility of the criminal law nor
shall s/he be bound by the acquittal decision as ruled by the criminal judge.
Similarly, the decision of the criminal judge concerning the evaluation of the fault
and establishment of the damage shall not be binding on the judge of common
law."
33. Article
4 and article 13 with the heading of “Technical
works to be done in disaster zones” of the Code on Measures to be
Taken and Aid to be Delivered Due to Disasters Impacting Public Life dated
15/5/1959 and numbered 7269 are as follows:
“Article 4 – A regulation covering the general principles regarding emergency
assistance organization and programs shall be prepared by the Ministries of
Interior, Development and Housing, Public Works, Health and Social Assistance
and Agriculture.
Within the framework of the principles of this regulation, a program
that is to be implemented in matters such as rescue, treatment of the injured,
burial of the deceased, extinguishing fires, clearing up debris and
accommodation of disaster victims to be fulfilled following the occurrence of a
disaster and assigns duties and officials, determines the points of assembly
shall be regulated by the governors' offices and the required vehicles shall be
prepared and preserved.
The implementation of these programs shall be ensured by the rescue and
assistance committees to be established by governors' offices.
…”
“Article 13 – a) The state of the terrain where the disaster occurred as well as all structures
and public facilities shall be examined by the public works boards to be
established by the Ministry of Development and Housing and a damage assessment
report shall be drafted.
(Amended: 31/8/1999 - DIFC - 574/1 art.) In circumstances where this is
necessary, upon the request of the Ministry of Public Works and Housing, other
ministries, organizations and institutions, local administrations,
universities, trade associations shall be liable to immediately assign a
sufficient number of civil engineers and/or architects, who are experienced in
their fields, to damage assessment efforts in order to determine the damage
that has taken place in structures.
(Amended: 31/8/1999 - DIFC - 574/1 art.) A separate report shall be
submitted to the most senior administrator of the province and subprovince in
question regarding those that need to be demolished or evacuated given the
hazardous state of the terrain or the damage suffered by buildings. These kinds
of buildings shall be immediately evacuated by these instances. A maximum
period of 3 days shall be provided for those that need to be demolished and the
owners shall be notified to eliminate the hazard. In the event that there is no
owner found on the premises, the situation shall be announced through local
means and the notification shall be considered to be made.
...
b) …
c) …
ç) In disasters such as landslide or rockfall, the buildings that are
evacuated upon the continuation or the possibility of repeating of the hazard
shall not be allowed to be occupied or repaired, for those that have been
damaged, until definitive precaution has been taken against the hazard. In the
event that it is decided that no precaution can be taken, the buildings that
are within the hazardous zone shall be demolished within the framework of the
above principles. If the Ministry of Development and Housing deems it more
economical to take the necessary precautions against the disaster in the
terrain than to demolish the buildings that are prone to hazard and to relocate
the community elsewhere, the required allocation for taking these precautions
shall be paid from the fund prescribed under article 33. Expenditures made for
precautions pertaining to the elimination of the hazard shall not be subject to
borrowing.
d) Shacks and houses can be built, commissioned to be built, leased or
purchased in order to ensure the temporary accommodation of those who have
become or are likely to become disaster victims in places where they are
present or in other places.
In circumstances where it will not be possible to fulfill these
precautions in a short period of time, financial aid can also be provided to
those who wish to take their own temporary accommodation precautions.
…”
34. Articles
1, 2, 4 and 18 of the Code on the Organization and Duties of the Disaster and
Emergency Management Authority dated 29/5/2009 and numbered 5902 are as
follows:
“Aim and scope
ARTICLE 1 – (1) The aim of this
Code shall be to regulate the establishment, organization as well as the duties
and authorities of the Disaster and Emergency Management Authority answerable
to the Office of the Prime Minister in order for it to deliver the services
pertaining to disasters and emergencies as well as civil defense. The Prime
Minister can exercise his/her authorities pertaining to the Authority via a
minister.
(2) This Code shall cover the taking of necessary precautions in
order to effectively deliver the services pertaining to disasters and
emergencies as well as civil defense on the national level and preparation
prior to the occurrence of incidents and damage reduction, ensuring
coordination between the organizations and institutions that carry out the
interventions to be made during incidents and the recovery efforts to be
conducted in the aftermath of incidents and the production and implementation
of policies in these subject matters.
Definitions
Article 2 - (1) The following included in the
Code shall mean the following;
a) Emergency: Incidents and a state of crisis created by these whereby
the normal lives and activities of the entirety or certain segments of the
society are halted or disrupted and which require emergency intervention,
b) Disaster: Incidents of natural, technological or human origin that
create physical, economic or social losses for the entirety or certain segments
of the society, halt or disrupt normal life and human activities,
c) …
h) Risk: Degree of values to be lost according to the hazard possibility
in a given area,
ı) Risk reduction: All sorts of planned interventions to be made in
order to prevent, reduce to acceptable scales or share the possible risks
according to disaster scenarios developed in a given section or area,
i) Risk management: Efforts to determine, reduce and share the risk
types and levels on the country, region, city scale and local scale and the
planning principles in this field,
j) ...
k) Damage reduction: Risk management and prevention precautions, which
aim to eliminate or reduce damages can potentially occur in disasters and
emergencies, collectively.
…”
“ARTICLE 4 – (1) In order to assess information in circumstances of disaster and
emergency, determine the precautions to be taken, ensure their implementation
and inspect, ensure the coordination between organizations and institutions as
well as civil society organizations the Disaster and Emergency Coordination
Board shall be established under the presidency of the Undersecretary of the
Office of the Prime Minister and shall consist of the undersecretaries of the
Ministries of National Defense, Interior, Foreign Affairs, Finance, National
Education, Public Works and Housing, Health, Transport, Energy and Natural
Resources, Environment and
Forestry and the State Planing Organization, the president of the
Disaster and
Emergency Management Authority, the Director General of the Turkish Red
Crescent Society as well as the senior officials of other ministries and
organizations to be assigned by the President of the Board depending on the
type of disaster or emergency.
(2) The Board shall convene at least for times per year.
Moreover, the Board can convene in extraordinary fashion upon the call of the
President of the Board. The Presidency shall ensure the secretariat of the
Board.”
“Provincial directorates of disaster and emergency
ARTICLE 18 – (1) Provincial
directorates of disaster and emergency shall be established in provinces,
within special provincial administrations, answerable to the governor. The
governor shall be responsible for the command and control of the directorate.
(2) The duties of provincial directorates of disaster and
emergency shall be the following:
a) Determining the disaster and emergency hazards and risks of the
province.
b) Drafting and implementing provincial disaster and emergency
prevention and intervention plans in cooperation and coordination with local
administrations as well as public organizations and institutions.
c) Managing the provincial disaster and emergency center.
ç) Determining the losses and damage that occur in disasters and
emergencies. d) …
...
g) Setting up and managing warehouses for necessary search and rescue
equipment and food, tools, instruments and materials to be used to cater for the
accommodation, nutrition and health requirements of the population in disasters
and emergencies.
ğ) …
...
(3) …
...
(5) The appointment of the provincial disaster and emergency
director and other personnel shall be done by the governor.
…”
35. Articles
4, 6, and 32 of the Regulation on Emergency Assistance Organization and
Planning Principles for Disasters published in the Official Gazette dated
19/5/1998 and numbered 19808 are as follows:
“Responsibility
Article 4 – Governors and
district governors, the ministry, organizations and institutions in charge as
well as military units shall be separately responsible for fulfilling the
duties that are assigned to them via emergency assistance plans and directives
pertaining to emergency assistance to be regulated as per the relevant
legislation and this Regulation.
Starting from the occurrence of a disaster, the administrative official
of the place where the disaster has occurred shall be responsible for taking
all sorts of emergency precautions that need to be taken and fulfilling
emergency assistance without waiting for an order.”
“Article 6 – Within the framework of the rules and principles of this Regulation:
a) In order to conduct emergency assistance services, provincial search
and rescue committees shall be established in provinces under the chairmanship
of the governor, sub-provincial search and rescue committees shall be
established in subprovinces under the chairmanship of district governors,
b) Governors and district governors shall be responsible in the first
degree for the drafting, execution and keeping up to date of the province and
sub-province emergency assistance plans. Ministries and central organizations
and institutions as well as military units shall assist to the drafting and
execution of these plans,
c) The rural organizations of Ministries, organizations and
institutions shall be covered within the provincial and sub-provincial plans,
d) The central organizations of Ministries, organizations and institutions
as well as military garrison commands in the region shall draft reinforcement
and support plans pertaining to their own duties in order to assist the
provinces and sub-provinces.
e) In the planning of emergency assistance services, the utilization of
the powers and resources of the public organizations and institutions within
the boundaries of the sub-province and/or province shall be the basis.
In the event that the requirements cannot be met on time or
sufficiently via these resources, the following shall be done in order:
1. Assistance shall be requested from the military units in the region,
neighboring governors and district governors,
2. These shall be met through the private enterprises and real persons
in the region via liabilities.
...
Preliminary Damage Assessment and Temporary Housing Services Group
Article 32 – The establishment,
duties, planning and services of the Preliminary Damage Assessment and
Temporary Housing Services Group:
a) Establishment:
...
b) Duties:
1. It shall determine where and in what numbers to send preliminary
damage assessment teams based on the news that are received,
2. It shall determine the areas where damage is intensive,
3. It shall provide the required information for definitive damage assessments,
4. It shall take the precautions to ensure the assessment of damage in
housing units, all official and private structures and animal shelters in the
shortest possible period of time,
5. Annex example of Preliminary Damage Assessment Forms: It shall be
made to be completed as per 16. Annex example of Summary forms: It shall be
drafted as per form 17 and submitted to the disaster bureau,
6. It shall determine buildings that are ill-advised to be residing in
in terms of danger of death and that need to be demolished,
7. It shall determine buildings and facilities that can be used for the
requirements of official organizations and the housing of disaster victims,
8. It shall commission the necessary actions in order for the
determined buildings to be prepared for utilization,
9. It shall ensure the temporary housing of families that are left
outside after having completed preliminary assessment efforts,
10.It shall ensure the allocation of primarily tents, intact schools
and other official and private buildings for the short term housing of disaster
victims,
11....
...
c) Planning:
1. Determining the list of personnel, equipment and instruments to be
assigned to services by the organizations as per the principles of paragraphs
(l) and (m) of article 12,
2. Places from which reinforcement teams can be requested in the event
that the personnel that will carry out preliminary damage assessment does not
suffice,
3. Since the temporary housing of disaster victims will be initially
ensured in buildings belonging to official organizations, in buildings and
facilities belonging to private individuals in the event that these buildings
do not suffice, prior determination of these sorts of buildings and facilities,
4. ...
…”
IV. EXAMINATION AND JUSTIFICATION
36. The
individual application of the applicant dated 22/11/2012 and numbered 2012/752
was examined during the session held by the court on 17/9/2013 and the
following were ordered and adjudged:
A. Claims of the Applicant
37. The
applicants alleged that the right to life, which is defined under article 17 of
the Constitution, was violated by indicating that the Governor of Van and the
officials of AFAD misused their duty by means of not fulfilling the duties
assigned to them in the legislation, that no damage assessment was conducted at
the hotel, that entry into the hotel was not prohibited despite the damage and
that they led to deaths by negligence. The applicants secondly alleged that the
freedom to claim rights, which is regulated under article 36 of the Constitution,
was violated by indicating that no instance to which they could apply so that a
criminal investigation would be conducted against the decision of the Office of
the Chief Public Prosecutor of the Supreme Court of Appeals of not putting in
process of the complaint that had been submitted due to the inability to find
concrete information and documents existed.
B. Evaluation
1. Claim That Article 17 of the
Constitution Was Violated
a. In Terms of Admissibility
38. While an
assessment as to the admissibility of the complaints was done in the opinion of
the Ministry with a view to the applicants' claim that article 17 of the
Constitution was violated, it was stated it needed to be considered that the
applicants filed a case for material and moral compensation against the
relevant administrations, that the trial process was still going on, that in
accordance with paragraph (5) of article 47 of the Code on the Establishment
and Trial Procedures of the Constitutional Court dated 30/3/2012 and numbered
6216, an individual application could be lodged only after application remedies
were exhausted.
39. In
response to the opinion of the Ministry regarding the admissibility of the
application, the applicants alleged that the mere reception of compensation
would not be sufficient in the event that the right to life was violated, that
the state had the positive liability to install an effective and preventive
criminal system.
40. In
order to make a decision pertaining to the matter of exhausting legal remedies
while the admissibility examination pertaining to the complaints of the
applicants with regard to article 17 of the Constitution is continuing, the
scope of the positive liability to “establish
an effective judicial system” that the State has in order to protect
the right to life within the framework of article 17 of the Constitution needs
to be determined. Therefore, the evaluation regarding this matter will be
conducted jointly with the examination pertaining to the merits.
41. In
paragraph (1) of article 46 of the Code numbered 6216, it is adjudged that only
those whose current and personal right is directly affected due to the act,
action or negligence that is claimed to result in the violation have the right
to individual application. In line with the natural quality of the right to
life, an application towards this right in terms of people who lose their lives
can only be lodged by the late people's relatives who suffer from the incident
of death that occurs. The applicants are the spouse, children and siblings of
the individual who passed away in the incident that is the subject of the
application. Therefore, there is no deficiency in terms of the capacity to
apply.
42.
Nevertheless, out of the applicants, Mehmet KERİMOĞLU and Mustafa KERİMOĞLU who
are two brothers of the late S.K. did not submit a complaint petition to the
Office of the Chief Public Prosecutor of Van or the Office of the Chief Public
Prosecutor of the Supreme Court of Appeals with regard to the incident, did not
submit any document as to the effect that they exhorted effort in order for an
investigation to be conducted either. In accordance with paragraph (2) of
article 45 of the Code numbered 6216, all of the administrative and judicial
application remedies that have been prescribed in the code regarding the
transaction, the act or the negligence that is alleged to have caused the
violation must have been exhausted before lodging an individual application. In
this case, with regard to the applicants' claim that no criminal investigation
was conducted due to the decision of not putting in process of the complaint
issued by the Office of the Chief Public Prosecutor of the Supreme Court of
Appeals, a decision of inadmissibility should be issued due to the fact that application
remedies have not been exhausted in terms of Mehmet KERİMOĞLU and Mustafa
KERİMOĞLU who are two brothers of the late S.K.
43. It is
seen that the part of the application lodged by the spouse and children of
S.K., which is to the effect that article 17 of the Constitution was violated
is not clearly devoid of justification as per article 48 of the Code numbered
6216. As no other reason for inadmissibility was observed, it should be decided
that this part of the application has the quality of being admitted.
b. Examination in Terms of Merits
44. The
applicants alleged that the right to life, which is defined under article 17 of
the Constitution, was violated by indicating that the Governor of Van and the
officials of AFAD did not fulfill the duties assigned to them in the
legislation, that they did not take necessary measures between two earthquakes,
that no damage assessment was conducted at the hotel, that entry into the hotel
was not prohibited despite the damage and that they led to the death of their
relative by negligence.
45. In the
opinion of the Ministry, while the complaints to the effect that article 17 of
the Constitution was violated were being evaluated, the principles adopted by
the European Court of Human Rights (“ECtHR”) with a view to the right to life
were mentioned, it was stated that matters such as the uncertainty as to when
the risk to which the relatives of the applicants were subject due to
circumstances bearing a life-threatening hazard could materialize, the status
of the individuals who have a role in the emergence of these kinds of
circumstances and whether or not the action or negligence attributed to these
individuals is intentional need to be taken into consideration during the
examination on merits of a certain case in order to determine the
responsibility carried by the State with a view to the right to life.
46. In the
opinion of the Ministry, it was stated that, within the context of article 2 of
the European Convention on Human Rights (“ECHR”), a distinction needed to be
observed between cases pertaining to a death incident occurring as a result of
intention, attack or ill treatment and cases pertaining to a death incident
occurring as a result of negligence. Within this framework, an opinion was
included to the effect that the ECtHR concluded that the positive liability
regarding the “establishment of an effective
judicial system” did not require the filing of a criminal action in
each and every incident if the violation of the right to life or physical
integrity had not been deliberately caused and that it could be sufficient to
have civil, administrative and even disciplinary remedies open for the victims.
47.
Moreover, it was indicated in the opinion of the Ministry that the state could
have access to relevant information and documents more easily in cases
pertaining to manslaughter and hazardous activities with loss of life as a
result of incidents occurring under the responsibility of public instances
according to the ECtHR, that it was accepted that the state had the liability
to conduct an official investigation, that in order for this criteria to be
applied in the case in question first the public instance to which the duty to
conduct examinations regarding the matter of earthquake resistance belonged to
during the period when the buildings were constructed and in the following
period and then whether or not the instance in question had fulfilled its duty
needed to be determined.
48. In
response to the opinion of the Ministry with regard to the merits of the application,
the applicants asserted that according to article 2 of the ECHR, the state
could have access to information and documents relevant to the incident more
easily in cases pertaining to manslaughter, that it was accepted that the state
had the liability to conduct an official investigation, that therefore, the
Office of the Chief Public Prosecutor of the Supreme Court of Appeals needed to
initiate the investigation ex officio,
that in the expert report received within the scope of the investigation conducted
on the incident, it was determined that the municipality was responsible, that
in the decisions of the Council of State as regards the cases of earthquake,
the municipality and the Ministry of Public Works were held responsible for the
damages of earthquake, that in the incident which is the subject matter of the
application, differently from other cases of earthquake, Bayram Hotel collapsed
during the second earthquake and following aftershocks, that the Governor and
the officials of AFAD were responsible due to the fact that they did not carry
out damage assessment and take other measures.
49. Article
17 of the Constitution with the heading of
"Inviolability and material and spiritual existence of the
individual" is as follows:
“Everyone has the right to life and the right to
protect and improve their material and spiritual existence.
Except for medical necessity and the cases specified in law, the bodily
integrity of the individual is inviolable; the individual cannot be subjected
to scientific and medical experiments without his/her consent.
No one can be subjected to torture or torment; no one can be subjected
to a penalty or treatment which is incompatible with human dignity.
The act of
killing in the case of self-defense and under compelling circumstances when law
permits the use of a weapon during the execution of warrants of arrest and
detention, the prevention of the escape of a detainee or convict, the quelling
of a riot or insurgence, the execution of the orders given by an authorized
body during martial law or state of emergency is out of the scope of the
provision of the first paragraph.
50. The
right to life and the right to protect and improve his/her material and
spiritual existence of an individual are among his/her rights which are closely
tied, inalienable and indispensable. As specified by the Constitutional Court,
the fundamental right over the integrity of life and body is among the rights
which impose a positive and negative liability on states (see CC, M.2007/78,
D.2010/120, D.D. 30/12/2010).
51. Within
the scope of the right to life regulated in article 17 of the Constitution, as
a negative liability, the state has the liability not to end the life of any
individual who is within its jurisdiction in an intentional and illegal way. Furthermore,
as a positive liability, the state has the liability to protect the right to
life of all individuals who are within its jurisdiction against the risks which
may arise out of the actions of public authorities, other individuals or the
individual himself/herself (CC, M.1999/68, D.1999/1, D.D. 6/1/1999). The state
is responsible for protecting the material and immaterial existence of an
individual from all kinds of dangers, threats and violence (CC, M.2005/151
D.2008/37, D.D. 3/1/2008; M.2010/58, D.2011/8, D.D. 6/1/2011).
52. In
cases where the loss of life occurs under the conditions which can require the
responsibility of the state, article 17 of the Constitution imposes the State
the duty of taking effective administrative and judicial measures which will
ensure that the legal and administrative framework that is formed in order to
protect the right to life is duly applied and that the violations as regards
this right are stopped and punished by making use of all available facilities.
This liability is valid for all types of activities, public or not, in which
the right to life can be in danger.
53.
However, by taking into consideration of the preference of the action to be performed
or the activity to be carried out by evaluating, in particular, the
unpredictability of human behaviors, priorities and resources; positive
liability should not be interpreted in a way that will create extreme burden on
officials. In order for a positive liability to be applicable, it needs to be
known by officials that the life of a specific individual is in real and
imminent danger or after the acceptance of the existence of circumstances where
this should be known, within the framework of this kind of a situation, it
needs to be determined that public authorities have failed to take measures in
such a way as to prevent the realization of this danger within reasonable
limits and the authorities they have (for the decisions of the ECtHR in the same
vein, see Keenan v. the United Kingdom,
27229/95, 3/4/2001, §§ 89-92 and A. and
Others v. Turkey, 27/7/2004, 30015/96, § 44-45, İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey,
19986/06, 10/4/2012, § 28).
54. The
positive liabilities that the state has within the right to life have also a
procedural aspect. Within the framework of this procedural liability, the state
is obliged to carry out an effective official investigation which can ensure
that those who are responsible for each incident of death which is not natural
are determined and punished, if necessary, The main aim of this type of
investigation is to guarantee the effective implementation of the law that
protects the right to life and, in the incidents in which public officials or
institutions are involved, to ensure that they are accountable against the
deaths which occur under their responsibility (for the decisions of the ECtHR
in the same vein, see Anguelova v. Bulgaria,
App. No: 38361/97, § 137, Jasinskis v.
Latvia, 21.12.2010, App. No: 45744/08, § 72).
55. It is
necessary to determine the type of investigation required by procedural
liability in an incident depending on whether the liabilities as regards the
essence of the right to life require a criminal sanction or not. In cases
pertaining to incidents of death occurring as a result of intention or assault
or ill-treatment, the state has the liability to conduct criminal
investigations of the nature to allow for the determination and punishment of
those responsible for the case of lethal assault as per article 17 of the
Constitution. In these kinds of incidents, the mere payment of compensation as
a result of the administrative and civil investigations and cases that are
conducted is not sufficient to eliminate the violation of the right to life and
to remove the title of victim.
56. The aim
of criminal investigations conducted is to ensure that the provisions of the
legislation which protect the right to life are implemented in an effective way
and that those who are responsible are accountable with regard to the incident
of death. This is not a result liability, but a liability to use the
appropriate means. On the other hand, the assessments included herein do not
mean in any way that article 17 of the Constitution grants applicants the right
to make third parties tried or punished due to a judicial crime (for the
decision of the ECtHR in the same vein, see Perez
v. France, 47287/99, 22/7/2008, § 70), imposes a duty of concluding
all trials with a conviction or a certain criminal sentence (for the decision
of the ECtHR in the same vein, see Tanlı v.
Turkey, 26129/95, § 111).
57. The
criminal investigations to be conducted should be effective and sufficient so
as to allow for those who are responsible to be determined and punished. In
order to be able to say that an investigation is effective and sufficient,
investigation authorities need to act ex
officio and collect all evidence which can enlighten the death and
can be suitable for the determination of those who are responsible. A
deficiency in the investigation that would reduce the likelihood of discovering
the cause of the incident of death or those who are responsible bears the risk
of clashing with the rule of conducting an effective investigation (for the
decisions of the ECtHR in the same vein, see Hugh
Jordan v. the United Kingdom, 24746/94, 4/5/2001, § 109; Dink v. Turkey, 2668/07, 6102/08,
30079/08, 7072/09 and 7124/09, 14/9/2010, § 78).
58. One of
the matters which ensure the effectiveness of the criminal investigations to be
conducted is the fact that the investigation and the consequences thereof are
open to public review in order to ensure accountability in practice as in
theory. In addition, in each incident, it should be ensured that the relatives
of the person who passes away are involved in this process to the extent that
it is necessary so as to protect their interests (for the decision of the ECtHR
in the same vein, see Hugh Jordan v. the
United Kingdom, 24746/94, 4/5/2001, § 109).
59. However,
a different approach needs to be adopted with a view to cases pertaining to
incidents of death occurring as a result of negligence. As a result, if the
violation of the right to life or physical integrity has not been caused
intentionally, the positive liability regarding the “establishment of an effective judicial system” does not
require the filing of a criminal action in each and every incident. It can be
sufficient that civil, administrative and, even disciplinary legal remedies are
open to victims (for the decisions of the ECtHR in the same vein, see Vo v. France [BD], 53924/00, 8/7/2004, §
90; Calvelli and Ciglio v. Italy,
32967/96, 17/1/2002, § 51).
60. In
addition to this, in circumstances where State officials or organizations are
negligent to a point that surpasses a judgment error or lack of attention in
incidents of death occurring as a result of negligence, or in other words in
circumstances where the instances in question fail to take the required and
sufficient measures to eliminate hazards occurring as a result of a hazardous
activity by means of neglecting the duties attributed to them despite being
aware of the potential consequences, regardless of the legal remedies that may
have been applied to by individuals on their own initiative, the lack of any
accusation against the individuals who have endangered the lives of people or
the failure to try these individuals may result in the violation of article 17
(for the decisions of the ECtHR in the same vein, see Budayeva and others v. Russia, 15339/02,
20/3/2008, § 140, Öneryıldız v. Turkey,
[BD] 48939/99, 30/11/2004, § 93).
61. The
ECtHR makes an addition to this exception included within the scope of
hazardous activities with regard to the procedural liability of the state.
According to this, in an application which those who became victims due to a
natural disaster lodged (the relatives of the campers who lost their lives by
being carried away by the flood in a camping place which was licensed by the
municipality for operation by a private person) (Murillo Saldías and others v. Spain, 76973/01, 28/11/2006),
the ECtHR decided that the administrative case which was conducted following a
comprehensive criminal investigation in relation to the complaints as regards
article 2 and was concluded with the adjudging of a reasonable compensation was
an effective domestic legal remedy and eliminated the title of victim (Budayeva and others v. Russia, 15339/02,
20/3/2008, § 141).
62. In this
case, principles with regard to the fact that the state conducts a
comprehensive and effective criminal investigation in relation to the incidents
which occur due to hazardous activities (§ 60) can also be applied on the
applications which are lodged due to disaster incidents. Out of the losses of
life which occur as a result of the fact that preventive measures are taken, in
cases which require the responsibility of the State, within the scope of “an effective judicial system” which needs
to be formed as per article 17 of the Constitution, there needs to be an
independent and impartial official investigation procedure which meets minimum
standards which are determined in terms of effectiveness and ensures that
judicial sentences are imposed within the framework of the findings of the
investigation. In such cases, competent authorities should work hard and
immediately and initiate an investigation ex
officio in order to determine primarily, the conditions of
occurrence of the incident and disruptions in the functioning of the review
system, secondarily, the State officials or authorities that play a role in any
way in the chain of incidents in question (For the decision of the ECtHR in the
same vein see Budayeva and others v. Russia,
15339/02, 20/3/2008, § 142).
63. In the
incident that is the subject of the application, the relative of the applicants
lost his life as a result of the collapse of the hotel where he was staying
during the 5,6 magnitude earthquake that took place on the date of 9/11/2011
during the aftershocks which happened in the aftermath of the 7,2 magnitude
earthquake on the date of 23/10/2011. With a view to the incident that is the
subject of the application, the legal and administrative framework for the
liability to protect the right to life, which is included in the liabilities of
the state within the framework of the right to life, needs to be constituted
and it needs to be demonstrated (whether or not) the responsibility to
implement this framework as it should be exists.
64. In
order for a liability of the state to be applicable, it needs to be known by
public officials that the life of a specific individual is in real and imminent
danger or after the acceptance of the existence of circumstances where this
should be known, within the framework of this kind of a situation, it needs to
be determined that public instances have failed to take precautions in such a
way as to prevent the realization of this danger within reasonable limits and
the authorities they have (§ 53).
65. The
applicants asserted that differently from other cases of earthquake, Bayram
Hotel collapsed during the second earthquake and following aftershock, that the
Governor and the officials of AFAD were responsible due to the fact that they
did not conduct damage assessment and take other measures in accordance with
the legislation on this matter (§ 44). In the opinion of the Ministry, it was
stated that matters such as the uncertainty as to when the risk to which the
relatives of the applicants were subject due to circumstances bearing a
lifethreatening hazard could materialize, the status of the individuals who
have a role in the emergence of these kinds of circumstances and whether or not
the action or negligence attributed to these individuals is intentional needed
to be taken into consideration (§ 45).
66. In the
case of the occurrence of a disaster such as an earthquake, with a view to the
officials regarding whom the applicants request a criminal investigation to be
conducted, the duties of immediately determining damaged buildings, evacuating
and demolishing those buildings that constitute a hazard as per the damage they
have sustained, ensuring the temporary accommodation of disaster victims or
those who may potentially become disaster victims wherever they are or in other
places are clearly determined in the legislation (§ 33- 35) regarding the
subject.
67. In the
legal regulations in question, it is provided that a program which determines
the duties and officials for implementation in matters such as rescue, the
treatment of those injured, accommodation, burying the dead, extinguishing
fires, debris removal and subsistence for disaster victims, which will be
performed following the occurrence of a disaster, and which determines meeting
places will be regulated by the offices of governors, that the implementation
of these programs will be ensured by the rescue and aid committees to be
established by the offices of governors, that it is necessary that following
the occurrence of the disaster of earthquake, the hazardous situation and the
situation of the buildings which need to be demolished and evacuated in terms
of the damage that they inflict be reported to the highest administrative
authority of that province and district and that such buildings be immediately
made to be evacuated by these authorities, that if necessary, upon the request
of the Ministry of Public Works and Settlement, other ministries, institutions
and organizations, local administrations, universities and professional
chambers are responsible for immediately assigning a sufficient number of civil
engineers and/or architects who are experienced in their fields in the
activities of damage assessment so as to assess the damage which occurs in
structures.
68. In
disasters such as landslide, rockfall and, within this scope, earthquake, it is
stipulated in these regulations as a liability that the buildings that are
evacuated upon the continuation or the possibility of repeating of the hazard
will not be allowed to be occupied or repaired, for those that have been
damaged, until a definitive measure has been taken against the hazard, that if
it is decided that no precaution can be taken, the buildings that are within
the hazardous zone shall be demolished within the framework of the above
principles.
69. The
Disaster and Emergency Management Authority affiliated to the Office of the
Prime Minister in order for it to deliver the services pertaining to disasters
and emergencies and civil defense was established, provincial directorates of
disaster and emergency were established in provinces, within special provincial
administrations, affiliated to the governor and it was stated that the governor
was responsible for the command and control of these directorates. Determining
the losses and damage that occur in disasters and emergencies and setting up
and managing warehouses for necessary search and rescue equipment and food,
tools, instruments and materials to be used to cater for the accommodation,
nutrition and health requirements of the population in disasters and
emergencies are listed among the duties of these directorates.
70. In the
Regulation on Emergency Assistance Organization and Planning Principles for
Disasters, it is stipulated that governors and district governors, the
ministry, organizations and institutions in charge as well as military units
shall be separately responsible for fulfilling the duties that are assigned to
them via emergency assistance plans and directives pertaining to emergency
assistance to be regulated as per the relevant legislation and this Regulation,
that starting from the occurrence of a disaster, the administrative official of
the place where the disaster has occurred shall be responsible for taking all
sorts of emergency precautions that need to be taken and fulfilling emergency
assistance without waiting for an order.
71.
Similarly, through the Regulation in question, it is prescribed that
Preliminary Damage Assessment and Temporary Housing Services Group will be
formed and this group has been assigned with; 1. Determining where and in what
numbers to send preliminary damage assessment teams based on the news that are
received, 2. Determining the areas where damage is intensive, 3. Providing the
required information for definitive damage assessments, 4. Taking the measures
and performing necessary actions to ensure the assessment of damage in housing
units, all official and private structures and animal shelters in the shortest
possible period of time.
72. When
the provisions of the legislation included above are taken into consideration,
it is understood that the Governor and AFAD officials, who are alleged by the
applicants to have caused the deaths of their relatives by means of failing to
take the necessary precautions in the aftermath of the first earthquake, have
primary responsibilities with a view to precautions to be taken.
73. Numerous
aftershocks occurred in the aftermath of the first big earthquake that took
place. The buildings that sustained damages to a certain degree during the
first earthquake were in danger of collapsing during the aftershocks that
occurred. It needs to be accepted that this situation is a foreseeable risk.
The relative of the applicants lost his life by being buried under the rubble
of the hotel, which collapsed during the 5,6 magnitude earthquake that occurred
16 days after the first big earthquake. It is also evident that disaster
victims or those that came to that city as a result of the earthquake that had
occurred would consider using the hotel, which was one of the facilities with
the highest capacity among the accommodation places open to the public in the
city where the earthquake had occurred, for their accommodation needs. In this
case, it can be expected from those responsible to carry out the damage
assessment regarding the hotel and to decide that it be evacuated if necessary
within the 16 days that had elapsed after the first earthquake.
74. As also
specified in the opinion letter of the Ministry, it is stated in the case-law
of the ECtHR that if a violation is determined by national authorities in a
clear or indirect way by way of a measure or decision being taken in favor of
the applicant and this violation is redressed with an appropriate and
sufficient compensation, the relevant party will not be able to assert that
she/he/it is a victim any more (Scordino v.
Italy, 36813/97, 29/3/2006, § 178 and so on). If these two
conditions are fulfilled, it will not be necessary for the ECtHR to conduct an
examination due to the secondary quality of the protection mechanism regulated
with the ECHR (Eckle v. Germany,
8130/78, 15/7/1982, § 64-70, Jensen v. Denmark,
48470/99, 20/9/2001; Fatma Yüksel v. Turkey,
51902/08, 9/4/2013, § 45-46).
75.
Paragraphs (1) and (2) of article 45 of the Code numbered 6216 with the side
heading ''Right to individual application''
are as follows:
“(1) Everyone can apply to the Constitutional Court
based on the claim that one of the fundamental rights and freedoms within the
scope of the European Convention on Human Rights and the additional protocols
thereto, to which Turkey is a party, which are guaranteed by the Constitution
has been violated by public force.
(2) All of the administrative and judicial application remedies that
have been prescribed in the code regarding the transaction, the act or the
negligence that is alleged to have caused the violation must have been
exhausted before making an individual application.
…”
76. Similar
to what is accepted in the case law of the ECtHR (§ 74), the condition of
exhausting the legal remedies included under paragraph (2) of article 45 of the
Code numbered 6216, is a natural outcome of the fact that the individual
application is a final and extraordinary remedy to prevent the violation of
fundamental rights. In other words, the fact that administrative instances and
courts of instance are primarily liable to resolve violations of fundamental
rights renders compulsory the condition of exhausting legal remedies (App. No:
2012/1027, § 20-21, 12/2/2013).
77. The
cases for material and moral compensation (§17-20) which the applicants filed
against Van Municipality, the Ministry of Environment and Urbanization, the
Governor's Office of Van and the Prime Ministry representing the Disaster and
Emergency Management Authority (AFAD) and the inheritors of the owner of the
hotel Mehmet Sıddık Bayram have not yet been concluded, no permission was
granted to initiate a criminal investigation regarding the Governor and the
officials of AFAD. In this case, the material aspect of the positive
liabilities of the State within the framework of the right to life in the
incident that is the subject of the application, that is, whether or not it
used all the available means in order to duly implement the legal and
administrative precautions envisaged to protect the right to life (§ 52) cannot
be examined and no decision can be delivered by the Constitutional Court at
this stage.
78. It is
not possible to say the same thing as regards the effective criminal
investigation aspect of the State's positive liabilities with a view to the
right to life and there is no obstacle preventing the Constitutional Court from
delivering a decision regarding the matter of whether or not the right to life
was violated due to the decision of not putting in process that was finalized.
Moreover, it is not compulsory for the full remedy actions filed against public
administrations to have been concluded in order for the Constitutional Court to
be able to conduct this kind of an examination. Indeed, as mentioned above (§
60), the prevention of the examination of the responsibilities of officials who
are alleged to have put the lives of individuals in danger by means of
neglecting their duties and authorities regarding the matter of eliminating
foreseeable risks that occur as a result of a hazardous activity or natural
disasters can result in the violation of article 17 of the Constitution by
itself. However, it must be noted that the aim of the criminal investigation
that needs to be conducted is to ensure that the provisions of the legislation
which protects the right to life are implemented in an effective way and that
those who are responsible, if any, in the incident of death that has occurred
are brought to justice in order for their responsibilities to be determined.
This is not a result liability, but a liability to use the appropriate means. On
the other hand, the assessments that are contained herein do not refer to the
absolute obligation of determining the civil or criminal responsibility of any
individual or public instance with regard to the incident.
79. In this
case, as brought forward in the opinion letter of the Ministry, while the
examination of the admissibility of the complaints is carried out, the
objection that the applicants had filed a case for material or moral
compensation against the relevant administrations, that the trial process was
still going on, that the legal remedies were not exhausted (§ 38) (with regard
to the procedural aspect of the positive liabilities of the state within the
framework of the right to life) cannot be accepted as regards the decision of
not putting in process of the objection that was finalized . The essence of the
application is the allegation that the procedural aspect of the positive
liability of the state stemming from the right to life had been violated due to
the fact that no criminal investigation was initiated regarding the Governor
and AFAD officials whom they allege to have caused the deaths of their
relatives by failing to take the necessary precautions in the aftermath of the
first earthquake.
80. In the
incident that is the subject of the application, a decision of lack of
jurisdiction with regard to the Governor of Van and AFAD officials was
delivered in the criminal investigation conducted by the Office of the Chief
Public Prosecutor of Van and the investigation file was sent to the Office of
the Chief Public Prosecutor of the Supreme Court of Appeals. The Office of the
Chief Public Prosecutor of the Supreme Court of Appeals decided that the
complaint not be put into process with the justification that the allegations
pertaining to misuse of duty regarding the Governor of Van and the officials of
AFAD were not based on concrete information and documents and that no situation
that constituted a crime and would require a preliminary examination regarding
the concerned existed.
81. One of
the matters to be taken into consideration when evaluating the effectiveness of
the investigation that was conducted with regard to these individuals is the
effectiveness and the sufficiency of the criminal investigation so as to allow
for the determination and punishment of those responsible. In order for
effectiveness and sufficiency to be fulfilled, the investigation instances need
to take action ex officio and all evidence that could elucidate the death
incident and serve to identify those responsible need to be collected (§ 57).
82. With
regard to the incident that took place, first of all an investigation needs to
be initiated in order to establish to what extent the responsibility can be
attributed to the negligence of relevant public officials (whom the
complainants also allege to be responsible) except for the effect of the
natural disaster. In order to be able to answer this question, expert opinions
including technical and administrative assessments need to be sought and information
that can only be obtained by public authorities need to be accessed. These
matters are not matters that individuals (complainants in the incident that is
the subject of the application) can prove (for the decision of the ECtHR in the
same vein, see Budayeva and others v. Russia,
15339/02, 20/3/2008, § 163).
83. Within
the framework of the first investigation that was conducted by the Office of
the Chief Public Prosecutor of Van, a viewing was conducted, samples were taken
and examined, opinions of experts were obtained, the deficiencies and faults
that were present in the additions that were later made to the building in
question were referred to in light of the report prepared by experts, it was
indicated that it was understood that although it stood erect during the first
earthquake, it collapsed during the second one after having been affected by
the aftershocks between the two earthquakes.
84. With
regard to the incident that had consequences as severe as the death of 24
people, the Office of the Chief Public Prosecutor of the Supreme Court of
Appeals decided not to put the complaint in process with the justification that
the allegations pertaining to misuse of duty were not based on concrete
information and documents and that no situation that constituted a crime and
would require a preliminary examination regarding the concerned existed without
providing any assessment as to the matters that had been taken into
consideration during the first investigation and the matters that were made the
subject of complaint by the applicants (§ 12). With regard to the principal
complaint of the applicants of causing the deaths by means of the failure of
the officials to conduct a damage assessment between the two earthquakes and to
take other administrative precautions, the Office of the Chief Public
Prosecutor did not put the request of initiating an investigation in process
without including any evidence or assessments that would demonstrate what sort
of actions had been taken by the officials in terms of damage assessment and
the prohibition of entry into damaged buildings. Whereas the decision in
question could have been subject to oversight through the means of objection
had a decision not to give permission for investigation been delivered at this
stage by the Office of the Chief Public Prosecutor, the decision that was
already delivered by the Office of the Chief Public Prosecutor prevented the
evaluation of the request to pursue the investigation by an instance of
objection.
85. Another
matter to be taken into consideration when evaluating the effectiveness of the
investigation that is conducted is that the applicants are able to take part in
the investigation that is conducted in such a way as to be able to ensure the
openness of the investigation and to protect their legitimate interests (§ 58).
In the incident that is the subject of the application, the 1. Chamber of the
Council of State dismissed the objection filed by the individuals who had lost
their relatives against the decision of the Office of the Chief Public
Prosecutor of the Supreme Court of Appeals of not putting in process without
examination by referring to the fact that no objection remedy is envisaged in
the Code numbered 4483 against these decisions of Offices of Chief Public
Prosecutors. There is no instance where the applicants can object to the
decision of the Office of the Chief Public Prosecutor of the Supreme Court of
Appeals of not putting in process. In this case, it is not possible to consider
the investigation to be effective due to the fact that the investigation
conducted with regard to these individuals and its consequences are not open.
As a matter of fact, the ECtHR ruled that the fact that the close relatives of
the applicant (Fırat Dink) in the Dink v. Turkey case were able to object to
the objection instances that had conducted their examination merely based on
the file could not remedy the deficiencies in the investigation in question
with regard to the matter of protecting the legitimate interests of the victims
(Dink v. Turkey, 2668/07,
6102/08, 30079/08, 7072/09 and 7124/09, 14/9/2010, § 89).
86. For the
explained reasons, as it is understood that an effective and deterrent criminal
investigation had not been conducted, it needs to be accepted that the
procedural aspect of the right to life regulated under article 17 of the
Constitution was violated.
2. The Claim As to the Effect that Articles 36 and 40 of the
Constitution Were Violated
87. The
applicants secondly alleged that the freedom to claim rights, which is
regulated under article 36 of the Constitution, which corresponds to articles 6
and 13 of the ECHR, was violated by indicating that no instance to which they
could apply so that a criminal investigation would be conducted against the
decision of the Office of the Chief Public Prosecutor of the Supreme Court of
Appeals of not putting in process of the complaint that had been submitted due
to the inability to find concrete information and documents existed.
88. In
response to the applicants' allegation of violation of article 36 of the
Constitution, the Ministry indicated that the rights and principles pertaining
to fair trial under article 6 of the ECHR, which regulates the right to a fair
trial, were applicable during the conclusion on the merits of ''disputes pertaining to civil rights and obligations''
and ''a criminal charge'', that
the fact that the applicants did not have the title of the accused in the
criminal investigation in question needed to be taken into consideration and
that therefore a decision of rejection of venue in terms of subject needed to
be delivered, that article 9 of the Code numbered 4483 only refers to the
provisions of objection against decisions delivered by administrative
instances, that objections could not be examined as per this provision due to
the fact that no regulation is introduced with regard to the decisions of the
Office of the Chief Public Prosecutor of not putting in process as per article
4 of the Code numbered 4483, that however, there is not a significant
deficiency from a legal point of view given that the applicants whose
complaints that are conveyed to Offices of Chief Public Prosecutors are not put
in process have the means to take the same matter before the instance of
permission and object to any decision emanating from the instance of
permission.
89. Article
36 of the Constitution with the side heading of ''Freedom to claim rights'' is as follows:
“Everyone has the right to make claims and defend
themselves (Amended expression: 3.10.2001-4709/14 art.) either as plaintiff or
defendant and the right to a fair trial before judicial bodies through the use
of legitimate ways and means.
No court
can avoid hearing a case within its own jurisdiction.”
90. Article
40 of the Constitution with the side heading of “Protection of fundamental rights and freedoms”, which
primarily corresponds to article 13 of the ECHR that adjudges that anyone whose
rights and freedoms defined under the ECHR are violated has the right to apply
to an effective remedy before a national instance, even if the violation in
question is carried out by individuals who are charged to conduct an official
service, is as follows:
“Anyone
whose rights and freedoms vested by the Constitution are violated has the right
to ask for being granted the opportunity to apply to an authorized body without
any delay.
(Additional paragraph: 3.10.2001-4709/16 art.) The State is obliged to
indicate in its proceedings the legal remedies and authorities the relevant
individuals should apply and the time frames for these.
Damages incurred by any individual through unfair treatment by public
officials are compensated for by the State as per the law. The State reserves
the right of recourse to the relevant official having responsibility.”
91. Within
the framework of the procedural liability of the state to “establish an effective judicial system”
with regard to the right to life in relation to the incident that is the
subject of the application, when assessments were made as to whether or not an
effective criminal investigation that could ensure the identification and, if
necessary, punishment of those responsible had been conducted in addition to
and beyond the legal and administrative remedies for the victims, since the
lack of an instance to which the applicants could apply against the decision of
the Office of the Chief Public Prosecutor of the Supreme Court of Appeals of
not putting in process the complaint so that a criminal investigation would be
conducted was accepted as a deficiency and a decision of violation was
delivered, it was not deemed necessary to conduct a separate examination on the
same subject within the context of articles 36 and 40 of the Constitution.
V. IMPLEMENTATION OF ARTICLE 50 OF THE CODE NUMBERED 6216
92. Paragraph
(2) of article 50 of the Code numbered 6216 is as follows:
“(2) If the determined violation arises out of a court
decision, the file shall be sent to the relevant court for holding the retrial
in order for the violation and the consequences thereof to be removed. In cases
where there is no legal interest in holding the retrial, the compensation may
be adjudged in favor of the applicant or the remedy of filing a case before the
general courts may be shown. The court, which is responsible for holding the
retrial, shall deliver a decision over the file, if possible, in a way that
will remove the violation and the consequences thereof that the Constitutional
Court has explained in its decision of violation."
93. In the
application, a request for moral compensation was filed for the spouse of the
person who died as 30.000 TL, for each of his three children as 25.000 and for
each of his brothers as 15.000 TL and as 135.000 (in total). Due to the
violation of the procedural aspect of the right to life, it was decided by
discretion that a total of 20.000 TL in moral compensation be paid together to
the spouse of Selman Kerimoğlu who passed away, Serpil Kerimoğlu and his
children Sinem, Önder Can and Yiğit Ögeday Kerimoğlu out of the applicants.
This compensation is relevant to the moral damage arising out of the violation
of the constitutional right and it does not have any effect on the cases for
material, moral compensation which are going on in administrative justice.
94. The
applicants requested the collection of the counsel's fee and trial expenses
from the defendants. It was decided that the trial expense made by the
applicants be paid to the applicants.
95. Taking
into account the fact that the failure to conduct an effective and deterrent
criminal investigation violated the right to life with a view to the incident
that is the subject of the application, in accordance with paragraphs (1) and
(2) of article 50 of the Code numbered 6216, it should be decided that a copy
of the decision be sent to the Office of the Chief Public Prosecutor of the
Supreme Court of Appeals in order for the violation and the consequences
thereof to be removed.
VI. JUDGMENT
In the
light of the reasons explained, it is UNANIMOUSLY
decided on the date of 17/9/2013 that
A. The
complaints pertaining to the violation of article 17 of the Constitution
brought forward in the application by the spouse and children of Selman
Kerimoğlu who lost his life in the incident ARE ADMISSIBLE,
B. The
complaints brought forward in the application by Selman Kerimoğlu's two
brothers Mehmet Kerimoğlu and Mustafa Kerimoğlu ARE INADMISSIBLE due to the
fact that "application remedies have
not been exhausted",
C. The
procedural aspect of the right to life guaranteed under Article 17 of the
Constitution WAS VIOLATED,
D. The
separate EXAMINATION of the complaints to the effect that articles 36 and 40 of
the Constitution were violated IS NOT NECESSARY,
E. A
total of 20.000 TL in moral COMPENSATION BE PAID together to Selman Kerimoğlu's
spouse Serpil Kerimoğlu and his children Sinem, Önder Can and Yiğit Ögeday
Kerimoğlu out of the applicants,
F. Other
requests of the applicants in relation to extra compensation BE DISMISSED,
G. The
trial expense of 2,812.50 TL in total composed of the fee of 172.50 TL and the
counsel's fee of 2,640.00 TL, which were made by the applicants BE PAID TO THE APPLICANTS,
H. The
payments be made within four months from the date of application of the
applicants to the State Treasury following the notification of the judgment; if
there happens to be a delay in payment, legal interest be accrued for the
period elapsing from the date when this duration ends until the date of
payment,
İ. A copy of the decision be sent to
the Office of the Chief Public Prosecutor of the Supreme Court of Appeals in
order for the violation and the consequences thereof to be removed as per
paragraphs (1) and (2) of article 50 of the Code numbered 6216.