THE FACTS

 [8-49] A military unit that was practicing shooting in the area where the applicant was living collected the unexploded ammunition in the area and recorded the ammunition that could not be found.

 After about two months, the applicant found a piece of metal in the area. The piece of metal exploded, and the applicant was injured and suffered a loss of limb. The military prosecutor’s office launched an investigation, and the gendarmerie issued a report upon examination of the incident scene. Another report received from the laboratory stated that the metal parts found might be “war ammunition”.

 The military prosecutor’s office filed a criminal case against two soldiers (accused persons) superiors of the unit practicing in the area, for the offence of misconduct on account of negligence and delay. While the proceedings were still pending, the applicant lodged an individual application alleging that the investigation into the incident was not completed within a reasonable time and that a criminal case was not brought against those responsible.

 After the individual application, the applicant joined the proceedings against the accused persons before the military court as an intervening party. The military court convicted the accused persons for misconduct in office. The applicant did not appeal against this judgment. However, the appeal process initiated by the accused persons is still pending before the Court of Cassation.

 V. EXAMINATION AND GROUNDS

50. The Constitutional Court, at its session of 17 May 2018, examined the application and decided as follows:

A. The Applicant’s Allegations and the Ministry’s Observations

51. The applicant maintained that his life had not been protected as the unexploded ordnance had not been removed from the firing range after a military exercise and also alleged that the competent authorities had remained passive for years and failed to initiate a criminal case against those who were responsible. He maintained that the competent authorities’ failure to conduct an effective investigation was on account of the policy of impunity pursued by the State towards the public officers. He further asserted that the State failed to take the necessary measures to protect individuals’ lives in similar incidents as well as to set up an effective judicial system by granting impunity.

52. The applicant also maintained that he was a national of Kurdish origin; that in the South Eastern Anatolia Region where individuals of Kurdish origin like him were residing, many people died due to the failure to remove the unexploded ordnance; that they had to live with the unexploded artillery ordnance in this region for being of Kurdish origin; and that he himself was exposed to the impugned act for the very same reason. He therefore alleged that the prohibition of discrimination had been violated.

53. He accordingly alleged that the rights to life, to a fair trial and to an effective remedy, which are safeguarded respectively by Articles 17, 36 and 40 of the Constitution, as well as the principle of equality enshrined in Article 10 of the Constitution had been violated. He requested the Court to find the alleged violations as well as to award him pecuniary and non-pecuniary compensation.

54. In its observations, the Ministry of Justice noted that the application must be examined from the standpoint of the right to life safeguarded by Article 17 of the Constitution; however, regard being had to the particular circumstances of the present case, it was considered that the application must be declared inadmissible due to the applicant’s failure to exhaust available legal remedies as he had not resorted to the civil remedy capable of establishing the responsibility, deriving from the right to life and falling under the State’s positive obligation, on the part of the relevant military staff or the administration, as well as of awarding compensation if necessary.

B. The Court’s Assessment

1. Applicability

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

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

56. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16).

57. In the present case, the applicant is alive. Therefore, an examination must be conducted primarily as regards the applicability of Article 17 § 1 of the Constitution where the right to life is enshrined.

58. In order for the application of the principles concerning right to life in a given case, 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 has occurred no death (see Mehmet Karadağ, no. 2013/2030, 26 June 2014, § 20).

59. In the present case, although the applicant was injured due to detonation of an explosive substance, the Court concluded that the application must be examined from the standpoint of the right to life given the lethal effect of the substance, effect of the explosion on the applicant’s physical integrity and the other relevant factors.

2. Scope of Examination

60. It was considered that the allegations raised in connection with the rights to a fair trial and to an effective remedy, which are safeguarded respectively by Articles 36 and 40 of the Constitution, fell under the scope of the right to life. Accordingly, these allegations were examined also from this standpoint.

61. Besides, the applicant maintained that the prohibition of discrimination, taken in conjunction with the right to life, had been breached, alleging that he had been subject to the impugned act for being of Kurdish citizen.

62. The alleged violations of the principle of equality safeguarded by Article 10 of the Constitution as well as of the prohibition of discrimination laid down in Article 14 of the Convention cannot be examined abstractly, and they must be examined in conjunction with the other fundamental rights and freedoms enshrined both in the Constitution and the Convention (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 33).

63. However, in order for an examination as to an alleged discrimination, the applicant must demonstrate with reasonable ground that the difference in treatment between him and the persons in a similar situation with him was based on a discriminatory reason such as race, colour, sex, religion, language and etc. in the absence of any legitimate ground (see Adnan Oktar (3), no. 2013/1123, 2 October 2013, § 50).

64. In the present case, the applicant however failed to demonstrate any concrete findings and evidence so as to substantiate his allegations. Therefore, the Court found it unnecessary to make any examination as to the alleged violation of the principle of equality raised in conjunction with the right to life.

3. Admissibility

65. The applicant maintained that in his case, the right to life had been violated due to the public authorities’ failure to take the necessary measures, as well as the failure to conduct an effective criminal investigation by displaying a passive conduct. Therefore, in the present case, not only the State’s failure to take the necessary administrative measures intended to protect the right to life but also its failure to set up an effective judicial system capable of punishing those who have given rise to the violation of the said right.

66. In the present case, the application form and annexes thereto include no information or document indicating that the applicant had resorted to an administrative or civil compensation remedy. Nor did he provide any explanation as to the effectiveness of such remedies.

67. Therefore, at the outset, the scope of the State’s obligations under the right to life, as well as the question whether the compensation remedy, which the applicant did not exhaust before lodging an individual application, is capable of finding a violation and offering an appropriate redress for the violation must be ascertained.

68. Such an ascertainment would also elucidate whether the compensation remedy is sufficient to acknowledge that the State set up a judicial system which has a deterrent effect so as to prevent similar violations, is appropriate for the incident and capable of ensuring a sufficient judicial reaction.

69. The last sentence of Article 148 § 3 of the Constitution reads as follows:

 “… In order to make an application, ordinary legal remedies must be exhausted.”

70. Article 45 § 2 of Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court reads as follows:

 “All of the administrative and judicial application remedies that have been prescribed in the code regarding the act, the action or the negligence that is alleged to have caused the violation must have been exhausted before making an individual application.”

 71. The requirement of exhausting legal remedies, as stipulated by the constitutional and statutory provisions cited above, is a natural consequence of the fact that the remedy of individual application is to be used as a last and extraordinary resort for the prevention of human rights violations. In other words, the fact that it is primarily for the administrative authorities and inferior courts to remedy the violations of fundamental rights renders it mandatory to exhaust the ordinary legal remedies (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, § 20).

 72. However, a remedy may be considered effective only when it is available and effective both in law and in practice and the relevant authority, which is resorted to, is entitled to deal with the alleged violation in essence. For a remedy to be effective, it must either prevent an alleged violation or its continuation or find any violation that has already occurred and provide adequate redress for it. In addition, in case of an alleged violation that has occurred, an effective remedy must offer procedural safeguards capable of awarding compensation and ensuring identification of those who are responsible (see S.S.A., no. 2013/2355, 7 November 2013, § 28).

73. Article 5 of the Constitution titled “Fundamental aims and duties of the State” reads, insofar as relevant, 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.”

74. Article 125 §§ 1 and 7 of the Constitution reads as follows:

 “Recourse to judicial review shall be available against all actions and acts of administration.

 …

 The administration shall be liable to compensate for damages resulting from its actions and acts.”

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

 76. The State is liable not only to refrain from the intentional and unlawful taking of life of any person within its jurisdiction as a negative obligation incumbent on it, but also to safeguard the right to life enjoyed by all individuals within its jurisdiction against the risks likely to arise from the acts of public authorities, other individuals and even the individuals themselves (see Serpil Kerimoğlu and Others, §§ 50 and 51).

 77. The State’s positive obligations within the scope of the right to life have also a procedural aspect (see Serpil Kerimoğlu and Others, § 54). This obligation concerning the right to life can be fulfilled via criminal, civil or administrative investigations, depending on the nature of the case. However, in cases of death caused intentionally, the State has an obligation, by virtue of Article 17 of the Constitution, to conduct a criminal investigation capable of leading to the identification and punishment of those responsible. In such cases, imposing an administrative sanction or awarding compensation as a result of administrative investigations and actions for compensation is not sufficient to redress the violation and thereby to remove the victim status (see Serpil Kerimoğlu and Others, § 55).

 78. The aim of the criminal investigation is to ensure the effective implementation of the law protecting the right to life and to hold those responsible accountable. This is not an obligation of result, but of means. In addition, Article 17 of the Constitution does not grant the applicants the right to have third parties tried or punished for a criminal offence or impose an obligation on the State to conclude all proceedings in a verdict of conviction (see Serpil Kerimoğlu and Others, § 56).

 79. A different approach may be adopted in terms of the obligation to conduct an investigation into deaths caused by unintentional acts. In this context, the positive obligation to set up an effective judicial system may be deemed to have been fulfilled by ensuring victims to have access to legal, administrative and even disciplinary remedies in cases where the right to life has not been violated intentionally (see Serpil Kerimoğlu and Others, § 59).

 80. What the Court attaches importance at this point is that the judicial system never allows for any uncertainty in respect of the liability arising from the interferences with the right to life due to unintentional acts. This is necessary for the purposes of maintaining public confidence in the judicial system and ensuring the embrace of the state of law.

 81. However, in cases where the death has resulted from unintentional acts, if the public authorities have failed to take the necessary measures within their authority to eliminate the risks resulting from a dangerous activity despite being aware of the probable outcomes thereof or if they act based on erroneous judgment or fault going beyond mere negligence, bringing no accusation, or conducting no trial, against those putting the individuals’ lives at risk may give rise to a breach of the right to life -regardless of the legal remedies to which the victims have resorted on their own initiative- (see Serpil Kerimoğlu and Others, § 60).

 82. Therefore, in the present case, while discussing the question whether the rule on the exhaustion of available legal remedies was satisfied, it is necessary to make an examination as to the judicial system set up by the State to protect the right to life. Besides, this rule must be applied with some degree of flexibility and without excessive formalism. It must not be considered as an absolute rule which is capable of being applied to the same extent in every case. In other words, in reviewing whether this rule has been observed, it is essential to have regard to the particular circumstances of the case concerning the allegation that the right to life was not protected.

 83. Another issue to be noted is the fact that in cases where there are several remedies of the same capacity but one or a few of them have been exhausted, it is not certainly necessary, for fulfilment of the rule of exhaustion, to exhaust all the available remedies.

 84. However, in cases where there exists another effective remedy which the applicants did not use on their own initiative, the effective judicial system to be set up by the State within the scope of the right to life does not lead to the conclusion that they would not be exempted from exhausting this remedy in every case and under all circumstances. An acknowledgment to the contract would impair the rule of exhaustion of available remedies and thereby lead to the non-exhaustion of an effective remedy, which would deprive the State of the opportunity to examine the alleged violations of the right to life through a legal remedy which is effective for such allegations.

 85. Turning to the particular circumstances of the instant case in the light of these explanations, the competent authorities acted in a speedy fashion and conducted inquiries as to the material evidence collected from the incident scene. The relevant authorities immediately launched an investigation into the impugned incident, took the statements of the applicant and the eye-witness within the scope of the investigation as well as conducted ballistic examinations so as to find the source of the explosive material. At the end of the investigation conducted in this way, it was concluded that the incident had taken place under the responsibility of the public authorities; and that the information necessary and sufficient to be capable of ensuring the identification of those responsible had been obtained. In other words, through the investigation conducted into the impugned incident, the reason underlying the incident and the liability resulting from the interference with the right to life were not left in a state of uncertainty.

 86. At the end of the investigation, on a date after lodging of the individual application, the public authorities considered to be responsible for the impugned incident were sentenced to punishment. The applicant did not appeal against the decision due to alleged insufficiency of the sentence imposed or any other ground. It has been further observed that the investigation could not be completed within a reasonable time given the nature and particular circumstances of the case.

 87. The applicant did not maintain that his right to life had been violated intentionally. Nor did the Court find any element that would require it to get the impression that his injury had been caused intentionally. In the incident where the applicant ascribed fault to the relevant administration, he alleged that the public officers who had had personal responsibility in the incident for displaying negligence were not identified and punished speedily.

 88. At this point, it must be ascertained whether it was certainly necessary to conduct a criminal investigation capable of speedy identification of those responsible, within the scope of the obligation to set up an affective judicial system, in the incident cause of which and where the responsibility of public authorities resulting from the interference with the right to life could be determined through a criminal investigation.

 89. In making this assessment, the Court has reiterated its case-law to the effect that in cases where the violation of the right to life is not caused intentionally, the positive obligation to set up an effective judicial system may be deemed to have been satisfied by ensuring the victims’ access to civil, administrative and even disciplinary remedies; and that however, in cases where the public authorities fail to take the necessary and sufficient measures, within the scope of the powers conferred upon them, to eliminate the risks emanating from a dangerous activity despite being aware of its possible outcomes, bringing no charge or conducting no trial against those who put the individuals’ lives at risk may lead to a breach of the right to life (see Dilek Genç and Others [Plenary], 2014/3944, 1 February 2018, § 63).

 90. Secondly, it must be noted that any negligence displayed in the removal and disposal of ammunition pose a threat to the individuals’ lives; that the public authority knew or should have known such threat; and that the positive obligation inherent in the right to life is applicable also in terms of public safety.

 91. In addition, it is undoubted that the State’s obligation to protect individual’s life comes into play only when the individual faces a threat that would require his protection and this threat is foreseeable by the competent authorities. Otherwise, this obligation cannot be said to arise.

 92. Accordingly, what must be borne in mind in such assessments is the existence of a threat to the individuals’ lives for the obligation to protect the right to life to come into play. The subsequent issue is to determine what kind of a judicial remedy -in conjunction with another remedy or alone-, within the scope of the State’s positive obligation to set up an effective judicial system, may constitute a sufficient judicial reaction to such incidents where deaths have been caused by negligence due to the failure to take reasonable measures despite the foreseeable threats.

 93. At this point, it should be primarily noted that in case of any foreseeable threat resulting from the public authorities’ failure to take the necessary and sufficient measures, it cannot be necessarily require the public officers, who were personally liable for displaying negligence, to account for the incident through criminal sanctions, in order not to impair the important role in the prevention of similar incidents. Compensatory remedies may suffice to prevent similar violations of the right to life based on the conditions under which such incidents took place, the degree of liability resulting from negligence and, if any, the nature of the public activity conducted. Any consideration to the contrary would clearly contradict with the general acknowledgement that if the infringement of the right to life is not caused intentionally, the positive obligation to set up an “effective judicial system” may be satisfied if civil, administrative or even disciplinary remedies are available to the victim. In this regard, in examining the applicant’s complaints that his life was not protected against a foreseeable threat and that the public authorities who allegedly had negligence were not punished swiftly, the Court is to consider the liability involved in the present case and similar incidents, the particular conditions of the incident and the effectiveness of the existing judicial system in respect of the impugned incident as a whole.

 94. The applicant complained of the failure of the relevant authorities to file a criminal case swiftly against the public officers allegedly being responsible. He maintained that the impunity granted by the State to public officers in such incidents led to this situation. According to him, the State preferred to remain inactive by not conducting an effective criminal investigation into such kinds of incidents and thereby infringed its obligation to set up an effective judicial system so as to prevent similar violations of the right to life due to the impunity policy it applied.

 95. In the incident allegedly involving negligence in the collection of explosive substances that were under the administration’s responsibility, it may be said that the reason underlying the interference with the right to life was researched in depth and a criminal investigation capable of leading to the effective implementation of the relevant statutory provisions designed to protect the right to life as well as to the establishment of the responsibilities on the part of the public officers was conducted. Considering the conditions under which this tragic incident giving rise to the applicant’s injury took place, the Court has considered that unlike the complaints in question, the State was not liable, for fulfilling its positive obligation to set up an effective judicial system, to conduct a criminal investigation capable of absolutely ensuring the punishment of the public officers allegedly bearing personal liability in negligence.

 96. It has been accordingly concluded that the compensatory remedy, which was alleged not to be accessible and effective neither by the applicant in terms of his claims, satisfied the State’s obligation to set up an effective judicial system and was capable of determining any kind of -objective and subjective- liability in the incident and offering appropriate redress for the pecuniary and non-pecuniary damage sustained and claimed by the applicant.

 97. The competent authorities’ failure to act with reasonable speed to punish those who were responsible did not impair the effectiveness of the compensatory remedy capable of establishing the liabilities in the incident and offering an appropriate and sufficient redress for the damage sustained. Therefore, it has been concluded that the applicant was indeed provided by the State with an effective legal remedy –along with a criminal investigation which did not leave the liability in uncertainty– under its obligation to set up an effective judicial system within the meaning of Article 17 of the Constitution; and that the applicant however lodged an individual application with the Court without exhausting the available legal remedy.

 98. In this regard, it has been concluded that in the present case, the applicant had failed to exhaust the judicial remedy, prescribed by law concerning the alleged violation of the State’s obligation to protect individuals’ lives and proven to be effective also in practice through the case-law of the Council of State, before lodging his individual application.

 99. For these reasons, the Court found the application inadmissible for non-exhaustion of legal remedies without any further examination as to the other admissibility criteria.

 Mr. Zühtü ARSLAN, Mr. Engin YILDIRIM, Mr. Serruh KALELİ, Mr. Hasan Tahsin GÖKCAN and Mr. Kadir ÖZKAYA did not agree with this conclusion.

 VI. JUDGMENT

 For these reasons, the Constitutional Court held on 17 May 2018:

 A. By MAJORITY and by dissenting opinion of Mr. Zühtü ARSLAN, Mr. Engin YILDIRIM, Mr. Serruh KALELİ, Mr. Hasan Tahsin GÖKCAN and Mr. Kadir ÖZKAYA, that the alleged violation of the right to life be DECLARED INADMISSIBLE for non-exhaustion of legal remedies;

 B. UNANIMOUSLY that the court expenses be COVERED by the applicant.

DISSENTING OPINION OF JUSTICES MR. ZÜHTÜ ARSLAN, MR. ENGİN YILDIRIM, MR. SERRUH KALELİ, MR. HASAN TAHSİN GÖKCAN AND MR. KADİR ÖZKAYA

1. The applicant maintained that his right to life was violated as he had sustained a life-threatening injury due to explosion of the ammunition left on a plot of land following a military exercise and no effective criminal investigation had been conducted into the incident.

 2. A military unit fired shots with artillery and similar weapons, during a military exercise, at an old quarry located in the region where the applicant was living. Following the military exercise, as it was found out that certain ammunitions had not exploded, the exploration and annihilation process was conducted. At the end of this process, it was recorded in a minute that an unexploded bombshell of a grenade launcher, known as T-40, was missing and could not be found.

 3. The applicant, who was 17 years old and a shepherd at the relevant time, started to tamper with a piece of metal he found while grazing his animals at the land where the military exercise had been performed. When he hit the metal on a stone on the ground, it exploded. As a result of the explosion, the applicant was severely injured, his right hand was separated from the wrist joint and therefore sustained a life-threatening situation.

 4. On 31 December 2013, a criminal case was filed against the battalion commander of the unit that practised shooting, as well as against a squadron leader charged in that battalion for “misconduct in public office by negligence”. At the end of the proceedings, the Diyarbakır Military Court imposed a judicial fine on the accused persons due to the imputed offence by its decision of 1 June 2015. This decision was appealed, but the appeal process is still pending.

 5. The majority of the Court has declared the application inadmissible for the non-exhaustion of the legal remedies, stating that in cases where the death has been caused by negligence, as in the present case, the State is not necessarily obliged to launch a criminal investigation; and that the effective judicial remedy in such cases is to bring an action for compensation which the applicant failed to exhaust.

 6. Article 17 of the Constitution where the right to life is enshrined imposes on the State a positive obligation to “set up an effective judicial system” capable of ensuring identification, and if necessary, punishment, of those who are responsible for each incident of unnatural death. The aim pursued is to guarantee the effective implementation of the law that protects the right to life and to ensure that those responsible account for the deaths (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 54).

 7. This procedural obligation may be satisfied through criminal, civil and administrative investigations, depending on the nature of the impugned incident. In principle, in cases of death caused by unintentional acts, the positive obligation does not necessarily entail an effective criminal investigation, as in deaths resulting from a medical error (see Serpil Kerimoğlu and Others, § 59).

 8. However, in cases where the death has resulted from unintentional acts, if the public authorities have failed to take the necessary measures , within the scope of the powers conferred upon them, to eliminate the risks resulting from a dangerous activity despite being aware of the probable outcomes, or if they act based on erroneous judgment or fault going beyond mere negligence, it is certainly necessary to conduct a criminal investigation against those who are responsible (see Serpil Kerimoğlu and Others, § 60; for the ECHR’s judgment in the same vein, see Öneryıldız v. Turkey [GC], no. 48939/99, 30 November 2004, § 93; and Budayeva and Others v. Russia, no. 15339/02, … 15343/02, 20 March 2008, § 140).

 9. In brief, in case of any acts or behaviours which clearly put the individuals’ life at risk, it is necessary to conduct an effective criminal investigation and prosecution to be completed within a reasonable time and capable of leading to identification of those who are responsible. In examining an individual application lodged with respect to this matter, what the Court has to do is to assess whether the criminal investigation and prosecution in the given case were effective.

 10. On the other hand, as noted in the majority’s decision, in cases where there are several remedies intended for the same purpose but one or a few of them have been exhausted, the rule of exhaustion does not necessarily require the exhaustion of all the available remedies.

 11. In the present case, the applicant complained of the failure of the relevant authorities to conduct an effective investigation capable of leading to the identification and punishment of those who were responsible for his lethal injury. In fact, in case of any death or severe injury resulting from the public officers’ negligence going beyond a simple erroneous judgment, as in the present case, criminal investigation and prosecution are an effective judicial remedy for the elucidation of the incident. In this case, in assessing whether the State has fulfilled its positive obligation, the applicant is not expected to necessarily exhaust the other available remedies.

 12. The obligation to conduct an effective investigation within the meaning of the right to life requires the investigation to be capable of leading to the clarification of the incident in all aspects on one hand and to be completed within the shortest time possible, on the other.

 13. The investigation and prosecution conducted in the present case demonstrate that the State has fulfilled its “obligation to clarify” the incident. As a matter of fact, in the report issued during the investigation process by the expert board which was appointed by the Turkish Land Forces Command upon the request of the military prosecutor’s office, it is noted “Necessary orders and instructions concerning the shooting practice were given before the practice. However, there are deficiencies in reporting the unexploded ammunition to the superiors and in management and coordination of the process whereby the land including the unexploded substance was secured”.

 14. The military court accordingly concluded that a minute had been issued concerning the unexploded ammunition which could not be found; however, no security measure had been taken in this respect; that the applicant was not of full age at the time of incident and had not performed his military service yet; and that he could not therefore be expected to know that the piece of metal, which he caused to explode by hitting on a stone, was indeed an unexploded ammunition and might explode.

 15. On the other hand, the fulfilment of the obligation to clarify is not sufficient for an investigation to be effective. Article 17 of the Constitution also entails that the investigation/prosecution conducted into a death, or fatal injuries as in the present case, be sufficiently swift. In other words, an effective investigation and prosecution clearly entail a requirement of reasonable expedition and due diligence. In the present case, the procedural aspect of the right to life was violated as the investigation conducted into the incident had been procrastinated for a long time, and the criminal case filed thereafter continued for many years and has not been concluded yet despite ten years having elapsed.

 For these reasons, we do not agree with the majority’s decision finding the application inadmissible.