Violation Of The Right To Life Due To Failure To Conduct An Effective Investigation After An Explosion
Events
As a result of the explosion that occurred on the third floor of a building used for the production and trade of explosives (firecrackers, torches) in Istanbul, 21 people, including the applicants’ relatives, were killed, 115 people were injured and large-scale material damage occurred. It was understood that the building permit (licence) of the building where the explosion occurred had been issued by the Municipality, while the occupancy permit (iskân) and fire brigade approval certificate were not available. The Chief Public Prosecutor’s Office initiated an investigation into the incident and sent the indictment to the High Criminal Court (Court).
The court acquitted three defendants, sentenced two defendants, who were the owners of the building, to 5 years and 6 months in prison each, and convicted five defendants, who were municipality employees, on the charge of negligent homicide. Upon the appeal of the verdict, the Court of Cassation upheld the verdicts of acquittal and conviction of two defendants, dismissed the case against one defendant, a municipality employee, on the grounds of statute of limitations, and quashed the verdict against the other municipality employees on the grounds of error in the characterisation of the offence.
The court found two public officials guilty of negligence or delay in fulfilling the requirements of their duties and two other public officials guilty of acting contrary to the requirements of their duties and sentenced them to imprisonment. The court decided to defer the announcement of the verdict (HAGB) for the four defendants who were municipality officials.
Allegations
The applicants claimed that the right to life was violated due to the death of 21 people and injury of many others as a result of the explosion that occurred in the building, which was used for commercial purposes and used for the production of explosives without a building occupancy permit, and that the criminal investigation initiated due to the incident was dismissed due to the statute of limitations for one public official and some other public officials were given a HAGB decision.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Material Aspect of the Right to Life
In our national legislation, it is seen that special importance is given to workplaces where explosives are produced. The establishment stages and activities of these workplaces, which pose a serious danger to their surroundings and therefore require special security measures, are subject to strict conditions with detailed regulations.
It is clear beyond doubt that the municipality officials, who had previously carried out inspections and sealing operations in the building where the explosion occurred and even warned the workplace where the explosion occurred to obtain a licence shortly before the incident, and who were obliged to inspect the said workplace both in terms of the activity carried out and zoning, and to take action when necessary, were aware of the existence of a real and imminent risk regarding the explosive production activity, which is regulated by detailed legislative provisions, is subject to strict conditions, has a high risk, but is currently carried out illegally, in other words, it is clear beyond doubt that this event, which would have serious consequences for life, was foreseeable.
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Although it was understood that a highly risky production activity was carried out without a licence/permit in the building, which could not even be used as a dwelling and which had been used for 16 years without occupancy, it was seen that the administration did not take any reasonable steps in the context of the obligation to protect life and did not take any measures to prevent the realisation of the danger. As a result, it cannot be said that the public authorities have effectively activated the public power supported by the legal/institutional infrastructure in line with the obligation to protect life, and it is clear that there is insufficiency in taking and implementing measures that are suitable to produce results in terms of risk regarding the dangerous/illegal production activity, and that the obligation to protect life has been violated.
In the concrete application, there is a process in which the public authorities did not take the necessary and sufficient measures to eliminate the risks arising within the scope of the powers given to them, although they were aware of the possible consequences, which would require a criminal investigation in the context of the guarantees of the right to life.
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The ability to identify the persons responsible for minimising the risks to the life and bodily integrity of persons within the scope of a dangerous activity and taking the necessary measures to minimise the risks and the judicial reaction of the state against the identified responsibilities is also important in terms of preventing similar incidents from occurring.
In this context, when the judgement process is examined, it is understood that the Court clarified the circumstances surrounding the incident, identified the public officials who were responsible for the incident, determined the offence and fault of the public officials by establishing a connection with the explosion result, sentenced them to imprisonment, but ruled for HAGB. In other words, in the incident that resulted in death, it was determined that the public authorities did not fulfil the requirements of their duties and caused the victimisation of persons, and thus the violation in the context of the substantive dimension of the right to life was revealed in essence. However, although the violation of the right to life was accepted by the courts of first instance, adequate and appropriate remedy could not be provided for the violation due to the decision of LAGB.
For the reasons explained, the Constitutional Court decided that the substantive dimension of the right to life was violated.
2. Regarding the Alleged Violation of the Procedural Aspect of the Right to Life
The procedural aspect of the positive obligations of the State within the scope of the right to life requires that the incident of death should be revealed in all its aspects, an effective investigation should be carried out to determine responsibility, and those responsible should be punished in proportion to their acts.
In the concrete case, if the defendants do not commit a crime within the trial period as a result of the Court’s HAGB decision, this sentence will be deemed as never imposed and will not be reflected in the judicial record. This decision has a stronger effect than the postponement of the execution of the sentence and results in the exemption of the defendant from punishment. In the light of these findings, when the process is evaluated as a whole, the Court, with this decision, gave the impression that it preferred to use its power regarding HAGB to mitigate or eliminate the consequences of the act that caused severe victimisation, rather than using it to show that the acts in question would not be tolerated in any way.
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Accordingly, it is understood that one of the conditions for ensuring the effectiveness of the investigation, namely that those responsible are punished in proportion to their acts, has not been fulfilled and impunity has resulted. This situation clearly contravenes the State’s obligations to conduct a criminal investigation capable of ensuring that those responsible are punished with appropriate and adequate penalties in order to ensure deterrence in order to prevent similar violations. It is clear that this conclusion gives the impression that such cases are treated with tolerance and may damage the trust of individuals in the state and justice mechanisms in this context.
For the reasons explained above, the Constitutional Court decided that the procedural dimension of the right to life was violated.
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