Press Release No: Individual Application 30/17
27.10.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO LIFE DUE TO FAILURE TO TAKE NECESSARY MEASURES FOR PERSONS IN NEED OF PROTECTION

On 13 September 2017, the Second Section of the Constitutional Court found violations of the right to life safeguarded by Article 17 of the Constitution and the right to a trial within a reasonable time safeguarded by Article 36 of the Constitution in the individual application lodged by Gürkan Kaçar and Others (no. 2014/11855).

The Facts

Gürkan Kaçar, one of the applicants, is mentally disabled and he was a minor at the material time. When he was playing on a railway which was separated from the street fronting his house with a ruined wall, he touched a high voltage power line. As a result, he was exposed to electric shock and got injured seriously. The Chief Public Prosecutor’s Office launched an investigation. In the report prepared in the scene by the police officers, the way the applicant had been injured was confirmed, as well as it was noted that some of the grounding cables were out of order. The medical report issued by the hospital indicated that the applicant faced a life-threatening danger due to the incident, and his injuries would prevent him from performing his daily activities for fifteen days.

The public prosecutor carried out a scene examination more than five months after the incident and found out that the grounding cable was operating and that there were iron guardrails on both sides of the railway, which constituted a barrier between the street and the railway. The report issued by an expert, who accompanied the public prosecutor, indicated that the applicant Gürkan Kaçar was at complete fault in the incident.

The Chief Public Prosecutor’s Office filed a criminal case against the Chief of the Turkish State Railways (TCDD) for recklessly causing injury without specifying the evidence being relied upon. 

The report obtained by the criminal court from the academic experts also pointed out that the applicant Gürkan Kaçar, who was mentally disabled, was found to be at complete fault in the incident. At the end of the trial, the court acquitted the accused, and the judgment was upheld by the Court of Cassation.

The applicants applied to the administration by seeking compensation for their alleged pecuniary and non-pecuniary damages. As they did not receive any response, they brought an action for damages before the administrative court. The court held that there was no causal link between the alleged damages and the administrative act in question, therefore it dismissed the action brought by the applicants.

The applicants appealed against the decision of the administrative court. The Council of State quashed the decision on the ground that an examination was necessary with respect to the fault of the applicants who did not fulfil their supervision responsibility, as well as an inquiry was required into the information and documents pertaining to the criminal case filed against the administrative staff for a determination of service fault.

At the retrial made upon the quashing judgment of the appellate court, the administrative court examined the criminal case file and then dismissed the case again. The applicants again appealed, and the Council of the State upheld the decision.  

The Applicants’ Allegations

The applicants maintained that; Gürkan Kaçar, the minor applicant with mental disability, got injured upon touching the cables as the protective walls near the railway lines had been demolished and the necessary security measures had not been taken, there was a neglect of duty on the part of the administration, their action for damages was dismissed following unreasonably lengthy proceedings. In this respect, the applicants alleged that their son’s right to life safeguarded by Article 17 of the Constitution was violated, and they requested compensation for non- pecuniary damages.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

It cannot be understood from the available information whether an examination was made if the security measures observed during the site inspection, which was carried out more than five months after the incident, were actually available at the time of the incident. Besides, the inspection report did not provide sufficient explanation as to how the applicant Gürkan Kaçar had entered the place where the incident occurred and how he was exposed to electric shock.

Furthermore, within the scope of the action for damages, it was acknowledged; that the applicant had entered the scene from a ruined part of the wall surrounding the railway, that one of the electric cables there was broken or was cut off and picked up to play, and that it was touched to the catenary line on the railway, and therefore the applicant was injured due to electric shock. The action for damages was dismissed for lack of causal link between the damage and the administrative act.

The Constitutional Court considers that the State’s obligation to protect the individuals’ lives must not be interpreted in such a way as to impose an excessive burden on the public authorities, bearing in mind, in particular, the unpredictability of human conduct. However, the public authorities must take into account children, mentally disabled persons and other persons in need of protection in their prediction of human conduct while carrying out hazardous acts and they must put into practice the appropriate administrative measures in due time.

In the action for damages brought by the applicants, due regard was not paid to the fact that the administration failed to take the necessary measures for the people in need of protection, and that the supervision failure of the applicant’s family did not eliminate the responsibility of the administration to do so. The applicant thereby was found to be at complete fault due to his careless conduct. However, this conclusion does not comply with the principles concerning the obligation to protect life.

In addition, the case did not include any difficulty or other element which would cause impeding of the proceedings nor the case was of complex nature to necessitate the prolonging of proceedings for an unreasonable period of 9 years. In the present case it was concluded that the case was not concluded within reasonable time in a manner that might damage the significant role of the current judicial proceedings in the prevention of similar violations of the right to life.

Consequently, the Constitutional Court found a violation of the right to life of the applicant Gürkan Kaçar, safeguarded by Article 17 of the Constitution.

The Constitutional Court also held that the right to a trial within a reasonable time on the part of the applicant’s mother and father, guaranteed in Article 36 of the Constitution, was violated due to the excessive length of the administrative proceedings.

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

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