Serpil Kerimoğlu and Others, Application No: 2012/752, 17 September 2013

A) Facts

The applicants’ relative Selman Kerimoğlu had lost his life as a result of the collapse of an hotel (Bayram Otel) during the earthquake occurred in Van in 2011. In the investigation conducted after the incident, it was detected that the hotel was built against the construction license. However, no permission was granted to initiate a criminal investigation regarding the officials of Municipality. Furthermore, the file regarding the Governor of Van and Disaster and Emergency Management Authority (AFAD) was sent to the Court of Appeals Chief Prosecutor’s Office pursuant to the Law numbered 4483 and the local prosecutor’s office has given a decision of non-jurisdiction. The Court of Appeals Chief Prosecutor’s Office has not put the complaint into process. The applicants objected to this decision, but the Council of State dismissed this petition on the grounds that no objection was foreseen in the law against the decision not to process a complaint.

B) Judgment and Reasoning of the Court

The Court investigated the complaint in relation to the right to life enshrined in Article 17 of the Constitution. It was stated that the relatives of the deceased had the capacity to submit an individual application.

In the examination of merits, the Constitutional Court highlighted both the substantive obligation of the state regarding the right to life to take preventive measures in order to protect individuals’ lives and the procedural obligation to construct an effective system in order to put an end to and prosecute the violations of right to life. Yet, in order for the substantive right to prevail, the public officials should be able to foresee the presence of a threat and take reasonable preventive measures. The Constitutional Court declared that since there was no finalized investigation in the present case, it would not be possible to examine the complaint with regard to the substantive obligation.

The relevant investigations were therefore examined with regard to the procedural obligation to conduct an effective investigation within the scope of the right to life. This procedural obligation does not necessitate to conduct a criminal investigation in every death incident. Yet, a criminal investigation enabling to identify and prosecute the individuals responsible is considered as necessary in incidents of death occurring as a result of intention. On the other hand, in the incidents of death occurred as a result of an omission of public officials, the available civil, administrative and/or disciplinary remedies shall be sufficient. Nevertheless, if it is established that the public officials did not take necessary measures to prevent the foreseeable risks, then the lack of prosecution against these officials may result in a violation of right to life.

Additionally, with regard to this procedural obligation, the Constitutional Court pointed out the case-law of the European Court of Human Rights and stated that a reasonable compensation awarded after a comprehensive criminal investigation in a case against the municipality officials relating to persons who became victim due to a natural disaster would eliminate the title of victim.

The criminal investigations should be effective and sufficient so as to allow a satisfactory result to be reached; though this does not mean that every investigation should necessarily result in a conviction verdict.

In the present case, the Court of Appeals Chief Prosecutor’s Office decided not to put the complaint into process without evaluating the facts or the complaints. While a non-permission decision of the chief prosecutor’s office could be subjected to a review by way of an objection, the current decision has blocked this remedial channel. Furthermore, non-availability of challenging the decision of the Court of Appeals Chief Prosecutor’s Office eliminated the transparency of investigation which is a factor to be taken into consideration while the effectiveness of the investigation is assessed.

Therefore, the investigation conducted was found neither effective nor deterrent to the extent of enabling the determination and prosecution of those responsible and the Constitutional Court decided that the procedural aspect of the right to life protected under Article 17 of the Constitution was violated.

C) Significance of the Judgement

The Serpil Kerimoğlu and Others set forth the case-law of the Constitutional Court relating to the substantive and procedural aspects of the right to life. In this judgment, certain elements expressed in the abstract and concrete review of norms are transposed to the individual applications case-law; especially, concepts like the independence of investigation, openness to public scrutiny, collection of evidences all of which fall within the obligation of effective investigation as stated by the European Court of Human Rights, also became visible in the individual application procedure.

The judgment clearly distinguished the death incidents requiring a criminal investigation. In this regard, a parallel approach was adopted with the ECtHR case-law. It is significant that the judgment expresses where a suspicion is directed towards public officials in an incident of death occurred due to a natural disaster, criminal investigation and consequent compensation is firmly required.