30 October 2018 Tuesday

Burcu Demirkaya and Yücel Demirkaya (no. 2015/1232, 30 October 2018)

The Facts

In an accident taking place in 2004 in Pamukova district of Sakarya Province where a passenger train travelling from Haydarpaşa (İstanbul) to Ankara went off the rails, 37 persons including the applicant’s mother died and 90 persons were injured.

The Sakarya Chief Public Prosecutor’s Office (chief public prosecutor’s office) initiated an investigation into the accident and accordingly obtained an expert report with a view to clarifying why the incident had taken place as well as to identifying those who were at fault.

In the investigation against the officials of the Directorate General of the Turkish State Railways, the chief public prosecutor’s office issued a decision of lack of jurisdiction and sent the investigation file to the Ankara Chief Public Prosecutor’s Office. There is no information before the Court concerning the outcome of this investigation.

Besides, the chief public prosecutor’s office charged the machinists (first and second machinists) and chief conductor before the assize court, alleging that they had led to an accident on the railway. At the end of the proceedings, the machinists were convicted, whereas the chief conductor was acquitted. After the applicants had appealed the verdict, the Court of Cassation quashed the conviction decision against the accuseds.

During the proceedings conducted upon the quashing judgment, the incumbent court decided to discontinue the proceedings against the accuseds. Upon the appellate review, the decision to discontinue the proceedings was quashed. At the end of the proceedings conducted thereafter, the first machinist was sentenced to imprisonment sentence, whereas pronouncement of the verdict rendered in respect of the second machinist was suspended.

The applicants appealed the verdict and subsequently lodged an individual application with the Court. The relevant criminal chamber of the Court of Cassation sent the case-file to the chief public prosecutor’s office of the Court of Cassation in order to complete the deficiencies. The appellate review of the case has been still pending.

The Applicants’ Allegations

The applicants maintained that their right to life was violated due to the authorities’ failure to conduct, with reasonable speed, the criminal proceedings into a train accident resulting in the death and injury of many persons.

The Court’s Assessment

Positive obligations incumbent on the State within the scope of the right to life have a procedural aspect. As required by the procedural aspect of its obligation to conduct an effective investigation, which is inherent in the right to life, the State is to conduct an effective official investigation capable of leading to identification and –if appropriate− punishment of those responsible for an unnatural death.

In cases where the public authorities failed to take necessary and sufficient measures to eliminate the risks that arise from a dangerous activity, -even if those concerned have resorted to other legal remedies-, a criminal investigation is to be conducted against those who put persons’ lives in danger.

Railway transportation entails, by its very nature, certain risks for lives and physical integrity of persons. Therefore, public authorities must take necessary security measures in operating railways as well as take necessary steps, within a reasonable framework, to prevent avoidable deaths and injuries during navigation or at train stations and similar plants.

The impugned accident took place in 2004. The investigation conducted into this accident was completed within a period shorter than two months. The criminal court rendered its first decision in 2008. However, as the decision was not notified to certain persons who were entitled to appeal it, the appellate process with regard to the first quashing judgment was concluded within about 2 years and 6 months, while the one with regard to the second quashing judgment was concluded within about 2 years. The latest decision rendered by the criminal court was dated 24 November 2014, and the proceedings are still pending.

Due to excessive number of persons who died or were injured during the accident, taking statements of the relatives of those who died as well as statements of those injured may take a long time, which may be found reasonable. However, there is no fact or element in the investigation which could justify the prolongation of the proceedings to such an extent and the failure to conclude it yet. Therefore, it cannot be said that the investigation into the death of the applicants’ relative was conducted within a reasonable speed.

For the reasons explained above, the Court found a violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution and awarded compensation to the applicants.