ECHR judgment of 04 October 2016 in the case of Cevrioglu v. Turkey (application No. 69546/12).
In 2012, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, the complaint on the failure of the state authorities to take necessary measures to verify the safety of the construction site, as a result of the accident at which the applicant's son died, the lack of proper response by the courts to an accident, was successfully considered. The case involved a violation of the requirements of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In 1998, the applicant's 10-year-old son drowned, falling into an unclosed water tank on the construction site, where he played with a friend who also died as a result of this incident. Three municipal officials were prosecuted for causing death by negligence, but the proceedings against them were eventually suspended. The applicant and other family members of the deceased children subsequently sued for compensation in administrative courts, but he was dismissed on the grounds that there was no wine from the municipality.
According to Article 1 (4) of Law No. 4616, which provided that criminal proceedings for certain crimes committed before April 23, 1999, should be suspended and subsequently terminated if a crime of the same or more severity was not committed accused for the next five years.
In the conventional proceedings, the applicant argued that the public authorities did not take the necessary security measures, since no inspections were ever conducted at the construction site and there was no proper reaction to the accident by the courts of Turkey.
ISSUES OF LAW
Concerning compliance with Article 2 of the Convention. The duty of the State under Article 2 of the Convention in cases involving unintentional violations of the right to life was not limited to the adoption of rules to protect the safety of people in public places, but also included ensuring the effective functioning of this regulatory framework. In the absence of necessary security measures, construction sites, especially in residential areas, pose a risk of threatening life-threatening accidents that may affect not only professional builders more familiar with possible threats, but also the public at large, including vulnerable groups, such as children who can easily become the object of such threats. In this regard, unlike the situation in some other activities where the absence of a rigorous verification mechanism may not pose a problem due to their nature and limited scope, the respondent State in the present case had a more severe responsibility to the members of society who had to face very real threats, created by construction work at their very house. While the European Court ruled that the main responsibility for the accident in the present case was borne by the owner of the construction site, the evasion of the authorities of the respondent State from the creation of an effective system of inspections could also be considered an essential factor.
Although the Government argued that the accident could not be foreseen, since construction work had only recently begun, the Court does not consider it unreasonable to charge the respondent State with responsibility for evading the inspection, since the reservoir existed no less than eight months before the incident and the municipality knew about construction work from the first day. While the Court can not speculate on whether a proper inspection of a construction site could have prevented an accident, such an inspection could induce the owner to close the facility and take precautions around the well, which, in a reasonable way, could free the respondent Government from liability in accordance with Article 2 of the Convention.
As for the reaction of the courts of Turkey, the courts did not clearly establish the aforementioned shortcomings in the criminal proceedings brought against the officials of the municipality or in administrative proceedings against the municipality itself: the criminal proceedings were suspended without judicial assessment of the responsibility of the respective officials, and the administrative court did not carry out an in-depth a study of the regulatory framework for the verification of construction projects and the responsibility of the municipality for its implementation.
The violation of the requirements of Article 2 of the Convention (unanimously) was committed in the case.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage.