CEDH · CASELAW;CLIN;ENG — 6 juin 2017

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Turkey - 9441/10 Judgment 6.6.2017 [Section II] Article 2 Positive obligations Lack of adequate judicial response to establish circumstances of death of passenger in truck carrying inflammables: violation Facts – The applicant’s husband entered into an agreement with a truck owner for the transport of personal goods and furniture. The husband was informed that the truck had been booked by a transport company for the same day and would also be carrying raw materials belonging to another client. While transporting the goods, the truck was involved in a collision with another vehicle and caught fire. The applicant’s husband, who was a passenger in the truck, later died from burns in hospital. It was subsequently discovered that the “raw materials” being transported with the husband’s goods were in fact an inflammable liquid which had caught fire upon impact. Law – Article   2 (procedural aspect): The truck was not equipped with an electrical system to prevent short circuits and fire and carried no warning signs. The driver had not been trained in the transport of dangerous goods, contrary to the clear requirements of the law. No licence had been obtained for the transport of such goods and the shipment was incorrectly described as “raw material” in the invoice and delivery note in a possible attempt to evade inspection by the authorities. All these elements taken together suggested that, although not caused intentionally, the husband’s death had resulted from voluntary and reckless disregard of their statutory duties by those responsible. It was not a case of simple omission or human error for which civil remedies were sufficient. By their apparently reckless conduct, the persons responsible for the shipment had caused the kind of serious harm that the legislation in question was intended to prevent. Such action required a criminal-law response to ensure effective deterrence against similar threats to the right to life in the future. A criminal investigation into the accident had been necessary to determine whether the death was caused by the unlawful transport of a dangerous substance contrary to section 174 §   1 of the Criminal Code. Although an investigation was promptly initiated into the circumstances surrounding the death, the public prosecutor appeared to have treated the incident as an ordinary traffic accident caused by negligent driving without paying attention to the cause of the fire that claimed the applicant’s husband’s life. No steps were taken to determine the composition and chemical properties of the truck’s cargo or to identify the individuals or companies involved in the transport of such material. These significant omissions by the public prosecutor were disregarded by the Assize Court, despite the applicant’s objections. In addition, the judicial authorities ignored the applicant’s official complaints for a considerable length of time and denied her the right to participate effectively in the proceedings. She was not notified of the expert opinion or of the prosecutor’s decision not to prosecute. She was not recognised as a “complainant” by the Assize Court and not notified of its decision. Those considerations largely sufficed to conclude that the criminal proceedings at issue did not satisfy the State’s positive obligations under Article   2 as they failed to shed light on the circumstances of the death and had little deterrent effect in terms of ensuring effective enforcement of the regulatory framework on the transport of dangerous goods. Although the applicant also brought compensation proceedings against those allegedly responsible, the appropriate judicial response would have been a criminal-law remedy. Civil remedies aimed at awarding damages alone were not sufficient to fulfil the respondent State’s obligations under Article   2 in the applicant’s case. Conclusion : violation (unanimously). Article 41: EUR 15,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes