12 June 2018 Tuesday

Abdulkadir Şimşek and Others (no. 2014/11868, 12 June 2018)

The Facts

In the explosions at two different work places within an organized industrial zone, twenty persons including the applicants’ relatives lost their lives.

The expert report obtained within the scope of the investigation initiated by the chief public prosecutor’s office revealed that the explosions were caused by the industrial tubes used at the workplace; that the tubes previously filled with natural gas were emptied and re-filled with oxygen; and that the explosions took place due to the natural gas leftover within the tubes.

The chief public prosecutor’s office ordered separation of the investigation files on the ground that the investigation against the officials of the company from which these tubes had been procured were subject to different investigative procedures than the ones to be conducted against the public officials suspected of having negligence in the incident.

The judgment convicting the company officials and staff are pending before the appellate court.

The chief public prosecutor’s office requested permission from the Ministry of Energy and Natural Resources to investigate the relevant officials of the Energy Market Regulatory Authority; from the Ministry of Labour and Social Security to investigate the inspectors; from the Ministry of Science, Industry and Technology to investigate the Provincial Director of Industry and Commerce and the relevant staff of the Directorate; as well as from the Ministry of Environment and Forestry to investigate the concerned inspectors. However, the Ministries did not grant permission for investigation.

Thereafter, without resorting to the appellate procedure, the chief public prosecutor’s office ordered discontinuation of the process. Besides, it rendered a decision of non-prosecution in respect of the directors of the organized industrial zone. The applicant’s challenge against this decision was dismissed by the Magistrate Judge.

The Applicants’ Allegations

The applicants maintained that their right to life was violated on the ground that no permission was granted for initiating an investigation against the public officials alleged to have negligence in the explosion taking place on the same day at two different workplaces located in the industrial zone.

The Court’s Assessment

As regards deaths caused intentionally or by ill-treatment, the State is liable to conduct a criminal investigation capable of ensuring identification and punishment of those who are responsible, as required by Article 17 of the Constitution.

However, in cases where there is no intentional breach of the right to life or physical integrity, the positive obligation does not necessarily require a criminal case in every incident. A civil, administrative or even disciplinary remedy, which is accessible for the victims, may be sufficient.

In a state of law, it may be deemed reasonable to require the permission of state authorities for criminal investigations against public officials on the ground they perform their duties on behalf of the State and they are under risk of frequent complaints and investigations concerning their work.

In the present case, the applicants did not claim of an intentional breach of the right to life. Nor is there an impression that the death of their relatives was caused intentionally.

Nevertheless, even though the act is not intentional, an effective criminal investigation must be conducted if the death has resulted from the public authorities’ erroneous judgment or fault going beyond mere inattention.

As a result of the examinations, it has been revealed that despite having no license, the company had filled the tubes −which were originally designed for oxygen filling− with natural gas, it then discharged the tubes and re-filled them with oxygen gas, and that therefore, the explosions occurred because of the natural gas leftover within the tubes.

There is no claim or indication as to the ineffectiveness of the pending criminal proceedings for recklessly causing death or wounding against the company officials who had made the tubes filled with natural gas in contravention of the rules and business operations. Similarly, there is no challenge as to the ineffectiveness of the pending action for compensation brought by the applicants before the administrative court.

The explosion was not caused by any defect in the tubes; nor was a technical link established between the explosions and the relevant authorities’ failure to timely inspect these work places in respect of occupational health and safety.

Regard being had to the case-file and the cause of explosion as a whole, no conclusion can be reached that the public officials should have foreseen such threat and have failed to take necessary precautions.

For the reasons explained above, the Court declared the applicants’ allegation inadmissible for being manifestly ill-founded.