Press Release No: Individual Application 17/18
12.06.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO LIFE DUE TO FAILURE TO CONDUCT AN EFFECTIVE CRIMINAL INVESTIGATION INTO THE DEATH RESULTING FROM A MINE ACCIDENT

On 9 May 2018, the Second Section of the Constitutional Court found a violation of the procedural aspect of the right to life safeguarded in Article 17 of the Constitution in the individual application lodged by Naziker Onbaşı and others (no. 2014/18224).

The Facts

The applicants’ brother lost his life as a result of inrush (sudden eruption of gas and coal) and methane gas poisoning that occurred in a mine operated by a hard coal company affiliated to the Turkish Hard Coal Institution (TTK).

The Chief Public Prosecutor’s Office launched an investigation into the incident. The applicants filed a complaint against those alleged to be responsible.

Within the scope of the investigation, a permission for investigation was requested from the Ministry of Energy and Natural Resources (“the Ministry”) against the General Director of the TTK and five board members who held office at the material time. The Ministry refused to grant permission. The objection filed at Regional Administrative Court against the refusal was also dismissed.

Thereupon, the Chief Public Prosecutor’s Office issued a decision of non-prosecution regarding the General Director of the TTK and five board members. The objection filed against this decision was dismissed by the competent court.

The Applicants’ Allegations

The applicants claimed that the substantive aspect of the right to life was violated on the ground that in spite of the negligence attributed to the General Director of the TTK and board members in the expert report, no permission for investigation was granted and that the objection to this decision was dismissed without any justification.

The Constitutional Court’s Assessment

The obligation to carry out an investigation into the deaths that occurred due to unintentional acts does not necessarily require the provision of a criminal-law remedy in every case. Nevertheless, even if the act is not intentional, an effective criminal investigation must be conducted if the death has resulted from the public authorities’ mis-judgment or fault going beyond mere inattention.

Coal mining is a dangerous work because it involves certain risks for the lives and physical integrities of the workers in this industry. In such works, its obligation to protect lives requires the State to take the necessary measures in order to prevent deaths and injuries.

It is stated in the expert reports that many people lost their lives in similar incidents that occurred in previous years, the risk of a sudden explosion in the place of incident was known, and it was possible to take measures against this risk. In such a case, it cannot be said that an effective criminal investigation is not required.

As a matter of fact, the Chief Public Prosecutor’s Office launched a criminal investigation in the present case. The expert reports taken within the scope of the investigation contained some information pointing out to –potential– responsibility of the Chairman and Members of the Executive Board of the TTK on the incident.

However, the Ministry did not grant permission for investigation with respect to these persons, which ended the judicial process regarding them. In this case, it is necessary to assess the consequences of the procedure of obtaining permission for investigation under Law no. 4483 on the effectiveness of the investigation.

The procedure of obtaining a permission for investigation serves the purpose of preventing the unnecessary accusations against the public officials, thereby preventing the disruption of public duty. Therefore, before a criminal investigation is launched against public officials for the offences they are alleged to have committed on account of their duties, a preliminary examination must be carried out, as well as a preliminary assessment must be made as to whether a criminal investigation is necessary or not. The procedure of obtaining permission for investigation should not be applied beyond the stated purpose, namely in a manner delaying the functioning of the proceedings and hindering the effective conduct of the investigation or creating an impression that public officials are exempted from criminal investigation.

In the present case, the refusal to grant permission for investigation was based on an assessment in the expert report which stated that there was no direct causal link between the attributed fault and the inrush/sudden eruption in question.

The obligation to conduct an effective investigation imposed on the State within the scope of the right to life requires conducting an effective criminal investigation capable of identifying those responsible and, if necessary, punishing them. In the present case where the expert report pointed out the negligence of the public authorities, the relevant administrative authorities made a decision as to whether there was a causal link between the negligence and the incident in terms of criminal law in evaluating the request to grant permission for investigation, which was not compatible with the effective investigation principles and terminated the judicial process.

Therefore, the Constitutional Court found a violation of the procedural aspect of the right to life safeguarded in Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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