REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

GÜRKAN KAÇAR AND OTHERS

(Application no. 2014/11855)

13 September 2017

THE FACTS

[8-41] Gürkan Kaçar, one of the applicants, is mentally disabled and he was a minor at the material time. When he was playing on a railway which was separated from the street fronting his house with a ruined wall, he touched a high voltage power line. As a result, he was exposed to electric shock and got injured seriously. The Chief Public Prosecutor’s Office launched an investigation. In the report prepared in the scene by the police officers, the way the applicant had been injured was confirmed, as well as it was noted that some of the grounding cables were out of order. The medical report issued by the hospital indicated that the applicant faced a life-threatening danger due to the incident, and his injuries would prevent him from performing his daily activities for fifteen days.

The public prosecutor carried out a scene examination more than five months after the incident and found out that the grounding cable was operating and that there were iron guardrails on both sides of the railway, which constituted a barrier between the street and the railway. The report issued by an expert, who accompanied the public prosecutor, indicated that the applicant Gürkan Kaçar was at complete fault in the incident.

The Chief Public Prosecutor’s Office filed a criminal case against the Chief of the Turkish State Railways (TCDD) for recklessly causing injury without specifying the evidence being relied upon. 

The report obtained by the criminal court from the academic experts also pointed out that the applicant Gürkan Kaçar, who was mentally disabled, was found to be at complete fault in the incident. At the end of the trial, the court acquitted the accused, and the judgment was upheld by the Court of Cassation.

The applicants applied to the administration by seeking compensation for their alleged pecuniary and non-pecuniary damages. As they did not receive any response, they brought an action for damages before the administrative court. The court held that there was no causal link between the alleged damages and the administrative act in question, therefore it dismissed the action brought by the applicants.

The applicants appealed against the decision of the administrative court. The Council of State quashed the decision on the ground that an examination was necessary with respect to the fault of the applicants who did not fulfil their supervision responsibility, as well as an inquiry was required into the information and documents pertaining to the criminal case filed against the administrative staff for a determination of service fault.

At the retrial made upon the quashing judgment of the appellate court, the administrative court examined the criminal case file and then dismissed the case again. The applicants again appealed, and the Council of the State upheld the decision.  

V. EXAMINATION AND GROUNDS

42. The Constitutional Court, at its session of 13 September 2017, examined the application and decided as follows.

A. Alleged Violation of the Right to Life

1. The Applicants’ Allegations and the Ministry’s Observations

43. The applicants maintained; that Gürkan Kaçar, the minor applicant with mental disability, got injured upon touching the cables as the protective walls near the railway lines had been demolished and the necessary security measures had not been taken; that there was a neglect of duty on the part of the administration; and that their action for damages in this respect was dismissed following unreasonably lengthy proceedings. In this regard, the applicants alleged that their son’s right to life safeguarded by Article 17 of the Constitution was violated, and they requested compensation for non-pecuniary damages.

44. The Ministry, in its observations, specified that the application should be examined from the standpoint of the right to life safeguarded by Article 17 of the Constitution. The Ministry also stated that whether the severe injury sustained by the applicant Gürkan Kaçar after being exposed to electric shock had resulted from the malfunctioning of the administration could not be established in the absence of sufficient inquiry, and that whether the State had taken any reasonable measures –such as putting a warning sign stating that it was forbidden to enter the railway- concerning the environmental safety of the railway in question when the railway transport, one of the hazardous means of transportation, had been carried out was not investigated, either. It was further indicated that conclusion of the case after a very long time must also be considered to constitute a violation of the right to life.

45. The applicants, in their counter statements, indicated; that it was found established on the basis of the relevant investigation and case files that no security measures had been taken in the area where the railways in question were located; that after the incident, these railways remained underground in time; and that therefore, requesting a new expert report concerning the incident would make no sense.

2. The Court’s Assessment

46. Article 17 § 1 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, provides as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.”

47. Article 5 of the Constitution, titled “Fundamental aims and duties of the State”, in so far as relevant, provides as follows:

“The fundamental aims and duties of the State are to safeguard … the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.”

a. Applicability

48. In the present case, the applicant Gürkan Kaçar is alive. For this reason, in the first place, it is necessary to make an assessment as to the applicability of Article 17 § 1 of the Constitution which safeguards the right to life.

49. In order for the application of the principles concerning right to life, there must be an unnatural death. However, in certain cases, the incident may be examined within the scope of the right to life, even if there occurred no death (see Mehmet Karadağ, no. 2013/2030, 26 June 2014, § 20).

50. Although the applicant Gürkan Kaçar had escaped from the incident where he had been exposed to high electric shock with injuries, when the fatal nature of the electric shock in question and its effects on the applicant’s physical integrity are taken into consideration together with other elements, it has been concluded that the application should be examined within the scope of the applicant’s right to life. For this reason, the allegations submitted by the applicant in conjunction with the right to a fair trial safeguarded by Article 36 of the Constitution fall within the scope of the right to life, and therefore the relevant allegations have been examined in this framework.

b. Admissibility

i. As Regards the Applicants Sevim İçöz and Hüseyin Kaçar

51. It was decided by the 1^st Chamber of the Magistrates’ Court in civil matters that the applicant Gürkan Kaçar be restricted for his being mentally disabled and that he be under the guardianship of the applicants Sevim İçöz and Hüseyin Kaçar.

52. These applicants indicated that they lodged an application in the capacity of the guardians of their son Gürkan Kaçar and claimed that their right to life was also violated, stating that they felt sorrow due to the incident. Therefore, it must be noted that although the right to life is applicable in the present case, the applicants did not have victim status under the mentioned right.

53. Article 148 § 3 of the Constitution, in so far as relevant, provides as follows:

“Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. …”

54. Article 45 § 1 of the Law no. 6216 on Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011, titled “Right to an individual application”, provides as follows:

“Everyone can apply to the Constitutional Court based on the claim that any 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.”   

55. Article 46 § 1 of the Law no. 6216, titled “Persons who have the right to an individual application”, provides as follows:

“The individual application may only be lodged by those, whose current and personal right is directly affected due to the act, action or negligence that is claimed to result in the violation.”  

56. While the individuals who are able to operate the individual application remedy are essentially those who directly have the victim status, the individuals who have a direct personal or special relationship with the victim, and accordingly have been affected by the alleged violation of the Constitution or have a legitimate and personal interest in the elimination of the said violation may also lodge an individual application in their capacity as “indirect victims”, according to the circumstances of the case and the nature of the violated right (see Engin Gök and Others, no. 2013/3955, 14 April 2016, § 53).

57. However, whether the “indirect victim status” arises may vary according to the specific circumstances of the case and to the nature of the violated right. As a matter of fact, in certain cases where the victim cannot lodge an application in person and there is a close relationship –especially in cases of alleged violation of the right to life-, the Constitutional Court has held that the applicants who are not directly affected by the alleged violation can lodge an application on their own behalf on account of having been indirectly affected by the alleged violation in question (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 41; Cemil Danışman, no. 2013/6319, 16 July 2014; Sadık Koçak and Others, no. 2013/841 , 23 January 2014; and Rıfat Bakır and Others, no. 2013/2782, 11 March 2015).

58. In the present case, the applicants Sevim İçöz and Hüseyin Kaçar argued that not only their son’s (Gürkan Kaçar) right to life but also their own right to life was violated. In order to be able claim to have indirectly been a victim due to the violation of the right to life, person(s) with whom there is a close relationship is required to have lost her/his life in the impugned incident. Although the applicants’ son had sustained fatal injuries in the incident, he was alive on the date when the application was lodged; and he availed of this opportunity to lodge an application. Accordingly, the applicants cannot be said to have been direct or indirect victims of the alleged violation of the right to life.

59. For the reasons explained above, this part of the application must be declared inadmissible for incompatibility ratione personae and there being no need for a further examination in terms of other admissibility criteria.

ii. As Regards the Applicant Gürkan Kaçar

60. The alleged violation of the applicant’s right to life must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

c. Merits

i. General Principles

61. The right to life enshrined in Article 17 of the Constitution, when read together with Article 5 of the Constitution, imposes positive and negative obligations on the State (see Serpil Kerimoğlu and Others, § 50).

62. Within the scope of its positive obligations, the State has a liability to protect the right to life of every person within its jurisdiction against risks which may arise out of the actions of public authorities, other individuals or the individual himself/herself. First and foremost, the State should introduce deterrent and protective legal regulations and take administrative measures against such risks to the right to life. This liability also includes the obligation to protect the life of an individual from all kinds of dangers, threats and violence (see Serpil Kerimoğlu and Others, § 51).

63. In cases where there is a loss of life under the circumstances which may fall under the responsibility of the State, the public authorities should primarily establish effective legal and administrative measures against the threats and risks against the right to life by using every means within their jurisdiction in accordance with Article 17 of the Constitution. In this scope, the legal and administrative measures in question must be capable of stopping violations of the right to life and punishing those responsible, if necessary. This obligation applies to all situations where the right to life is at stake (see Serpil Kerimoğlu and Others, § 52).

64. In addition, the measures to be taken while fulfilling the positive obligations imposed within the scope of the right to life shall be determined by the administrative and judicial authorities. Many methods can be adopted for safeguarding rights and freedoms, and even if there is a failure in the fulfilment of any measure prescribed by the law, positive obligations can be fulfilled through another measure (see Bilal Turan and Others, no. 2013/2075, 4 December 2013, § 59).

65. In cases where the public authorities know or ought to know the existence of a real and immediate risk to the life of an individual, they are expected to take measures capable of avoiding such risk. However, bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose a disproportionate burden on the authorities (see Serpil Kerimoğlu and Others, § 53).

66. The State’s positive obligations within the scope of the right to life have also a procedural aspect (see Serpil Kerimoğlu and Others, § 54). Accordingly, the relevant authorities must act with reasonable promptness and due diligence in the actions for compensation to be brought before administrative and judicial authorities in order to identify those who have legal responsibility within the scope of the right to life. In this context, the Constitutional Court must examine whether the inferior courts carried out an examination in accordance with the requirements of Article 17 of the Constitution within the scope of the proceedings related to such incidents. Because the sensitivity of the inferior courts in this respect will prevent any prejudice to the role of the judicial system in force in the prevention of similar violations of rights that may arise in the future (see Perihan Uçar, no. 2013/5860, 1 December 2015, § 52).

ii. Application of Principles to the Present Case

67. In the present case, it is beyond dispute that the applicant with mental disability who was a minor on the date of incident got injured seriously upon touching the cables in the railway.

68. At this point, it must first be noted that the railway transportation, by its very nature, contains certain risks to the lives and physical integrities of the individuals, and therefore it is a hazardous activity in terms of the State’s obligation to protect the lives of individuals. Due to the hazardous nature of this activity, the public authorities are expected to take the necessary security measures in the operation of the railways and to do what is needed in a reasonable way in order to prevent deaths and injuries during the navigation of trains or in establishments such as stations and etc.

69. Another issue to be mentioned is the fact that the children, persons with physical or mental disabilities or other persons in similar situations are in need of more protection against such hazardous activities than the others. In other words, children and the individuals with mental disabilities need special protection as they do not have the ability of discernment. Children and the individuals with mental disabilities cannot be expected to exhibit the minimum behaviours expected from the adults against the incidents and the dangers posed to them.

70. Although such an obligation must be interpreted in a way which does not impose a disproportionate burden on the authorities, bearing in mind the unpredictability of human conducts, the relevant authorities must pay a special attention to the children, the persons with mental disabilities and the other persons in need of special protection while making predictions about human conducts and must put into practice the convenient administrative measures they have determined in this respect without delay. In other words, while taking the necessary measures for the protection of individuals’ lives and physical integrities, the public authorities must act by taking into account also the individuals who are in need of special protection.

71. Therefore, in assessments to be made in terms of the State’s obligation to protect the lives of individuals, the physical and mental developments of the children and the persons with mental disabilities must be taken into consideration, and a conclusion must be reached accordingly. As a matter of fact, in previous similar cases, the Constitutional Court took into consideration the children’s said conditions while determining the necessary measures to be taken for the protection of the lives of individuals and reached a conclusion accordingly (see Salih Ülgen and Others, no. 2013/6585, 18 September 2014; and Adem Ülgen and Others, no. 2013/6581, 25 February 2015).

72. Otherwise, the children or the individuals who are undoubtedly in need of special protection due to their disabilities would be imposed a burden such as behaving in a way expected from the adults with no disabilities. This does not comply with the State’s duty to show the maximum possible effort to ensure the children or the individuals with disabilities to survive and to ensure their full and effective participation in the society.

73. In the present case, it could not be understood whether the applicants’ statements that the wall in the scene had been collapsed and that the applicant Gürkan Kaçar had entered the railway from there were taken into consideration in the expert report issued following the site inspection, which was carried out more than five months after the incident, within the scope of the criminal investigation. In addition, it could not be understood whether the existence, at the material time, of the situation regarding the security measures established during the site inspection was investigated or not. Besides, the inspection report did not provide sufficient explanation as to how the applicant Gürkan Kaçar had entered the place where the incident occurred and how he was exposed to electric shock.

74. However, within the scope of the action for compensation brought by the applicants, it was acknowledged; that the applicant had entered the scene from a ruined part of the wall surrounding the railway; that one of the electric cables there had been broken or cut off and picked up by the applicant to play; and that he had touched to the catenary line on the railway, and therefore had been injured due to electric shock.

75. At this point, it must be noted that the State's obligation to protect life cannot be unlimited with regard to persons who act extremely carelessly against danger. In addition, this obligation does not provide an absolute security against danger in any circumstances. However, it must also be noted that, in case of any failure by the public authorities to take the necessary security measures expected from them, especially the careless acts of the individuals in need of special protection will not eliminate the responsibility of these authorities completely.

76. In the present case where the minor applicant Gürkan Kaçar with mental disability, who thus cannot be expected to have acted carefully by exhibiting the minimum behaviours expected from any person with no disability in the face of the incidents and dangers against himself, had entered the hazardous zone through a ruined security wall and been seriously injured as a result of being exposed to electric shock by touching the open electric cables, it cannot be accepted, without taking into consideration the administration’s failure to take the necessary security measures, that the applicant was at complete fault due to his careless conduct and that he must bear the serious damage he had sustained.

77. As a result, it has been concluded that in the present case there had been a real and immediate risk against life which could have been predicted by the public authorities and that they had failed to take the reasonable measures expected from them to prevent such danger.

78. In addition, in the present case, there must be an assessment as to whether an effective judicial protection of the life has been ensured. In the relevant case, which lasted approximately nine years, due regard was not paid to the fact that the administration failed to take the necessary measures for the people in need of protection, and that the supervision failure of the applicant’s family did not eliminate the responsibility of the administration to do so, and therefore the applicant was found to be at complete fault due to his careless conduct.

79. It has been observed that such a conclusion did not comply with the abovementioned principles concerning the obligation to protect life and that in addition, the relevant authorities failed to act with reasonable promptness as regards the nature of the incident. That is to say, there had been no factor or obstacle hindering the progress of the proceedings. In addition, the case was not of complex nature to necessitate such prolongation of proceedings. It has therefore been concluded that the case was not concluded within reasonable time in a manner that might damage the significant role of the current judicial proceedings in the prevention of similar violations of the right to life.

80. However, showing maximum sensitivity in this regard is of critical importance to maintain the commitment of people to the rule of law and not to shake the confidence in justice.

81. In the light of all these explanations, it has been concluded that the present case was clearly incompatible with the principle of providing an effective judicial protection against a real risk to the life.

82. Consequently, the Constitutional Court has found a violation of the right to life safeguarded by Article 17 of the Constitution.

B. Alleged Violation of the Right to a Fair Trial

1. Allegations of the Applicants Sevim İçöz and Hüseyin Kaçar and the Ministry’s Observations

83. The applicants maintained that their action for damages due to the incident where their son had been injured had not been concluded within a reasonable time, which was in breach of their right to a fair trial safeguarded by Article 36 of the Constitution, and they therefore requested compensation for non- pecuniary damages.

2. The Court’s Assessment

a. Admissibility

84. The alleged violation of the right to a trial within a reasonable time must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

b. Merits

85. The alleged unreasonable length of the proceedings concerning the disputes falling within the scope of “public law” as per the legal provisions inherent in the legal system as regards civil rights and obligations but decisive on civil rights and obligations by their outcomes was previously raised within the scope of individual application. In this respect, the Constitutional Court acknowledged that the right to a trial within a reasonable time was included in the scope of the right to a fair trial and specified that in the assessment of whether the length of the proceedings in a case was reasonable, the issues such as the complexity of the proceedings and the level of jurisdiction, the attitudes shown by the parties and the relevant authorities in the proceedings and the nature of the applicant’s interest in expeditious conclusion of the proceedings would be taken into consideration (see Güher Ergun and Others, no. 2012/13, 2 July 2013, §§ 34-64; and Selahattin Akyıl, no. 2012/1198, 7 November 2013, §§ 54-60).

86. As a result of the assessment of the present case taking account of the Court’s previous judgments in similar cases, it has been understood that the present case was not of a complex nature, considering the criteria such as the difficulty in the resolution of the legal dispute in question, complexity of the material facts, obstacles to collect evidence and the number of parties to the case. It cannot also be said that the applicants had a significant part in the prolongation of the proceedings due to their attitudes and behaviours and to their inattentive conducts while enjoying their procedural rights. Accordingly, it has been concluded that in the present case, there was an unreasonable delay in the proceedings which lasted approximately 9 years.

87. Consequently, the Constitutional Court has found a violation of the right to a trial within a reasonable time safeguarded by Article 36 of the Constitution.

c.  Application of Article 50 of Code no. 6216

88. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…   

(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 favour 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.”

89. The applicant Gürkan Kaçar requested 50,000 Turkish liras (TRY) and the other applicants requested respectively TRY 25,000 for non-pecuniary compensation.

90. It has been concluded that the applicant Gürkan Kaçar’s right to life and the other applicants Sevim İçöz and Hüseyin Kaçar’s right to a trial within a reasonable time were violated.

91. As there is a legal interest in conducting retrial in order to redress the consequences of the violation of the applicant Gürkan Kaçar’s right to life, a copy of the judgment must be sent to the 1^st Chamber of the Eskişehir Administrative Court for retrial in respect of Gürkan Kaçar.

92. The applicants Sevim İçöz and Hüseyin Kaçar must be awarded jointly TRY 9,600 for their non-pecuniary damages that cannot be redressed with the sole finding of a violation of their right to a trial within a reasonable time.

93. As there has been a violation of the obligation of effective judicial protection of the right to life as to its requirement to act with a reasonable promptness, the applicant Gürkan Kaçar must also be awarded TRY 25,000 for his non-pecuniary damages that cannot be redressed with the sole finding of a violation and a retrial.

94. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.

VI.  JUDGMENT

For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 13 September 2017 that

A. 1. Alleged violation of the right to life of the applicants Sevim İçöz and Hüseyin Kaçar be DECLARED INADMISSIBLE for incompatibility ratione personae;

2. Alleged violation of the right to a fair trial of the applicants Sevim İçöz and Hüseyin Kaçar be DECLARED ADMISSIBLE;

3. Alleged violation of the right to life of the applicant Gürkan Kaçar be DECLARED ADMISSIBLE;

B. 1. The right to a trial within a reasonable time, safeguarded by Article 36 of the Constitution, of the applicants Sevim İçöz and Hüseyin Kaçar was VIOLATED;

2. The applicant Gürkan Kaçar’s right to life safeguarded by Article 17 of the Constitution was VIOLATED;

C. A copy of the judgment be SENT to 1^st Chamber of the Eskişehir Administrative Court to conduct retrial in respect of Gürkan Kaçar in order to redress the consequences of the violation of his right to life;

D. 1. The applicant Gürkan Kaçar be AWARDED TRY 25,000 for non-pecuniary damages, and his other claims for compensation be REJECTED;

2. The applicants Sevim İçöz and Hüseyin Kaçar be AWARDED jointly TRY 9,600 for non-pecuniary damages, and their other claims for compensation be REJECTED;

E. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be JOINTLY REIMBURSED to the applicants;

F. The payments be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

G. A copy of the judgment be SENT to the Ministry of Justice.