Cevrioğlu v. Turkey, ECtHR (Application no. 69546/12), 4.1.2017
Coroners feeling relief that amendments to the Policing and Crime Bill will mean that the burden is about to be lifted from them of conducting inquests after any death of a person subject the Mental Capacity Act DOLS provisions might wonder if their workload will nevertheless increase following this recent judgment of the European Court of Human Rights (ECtHR) that clarifies that the ambit of Art 2 covers failures in the state’s regulatory oversight of private companies’ actions. Where there are arguable grounds to suspect such a regulatory failure that would otherwise have ameliorated a risk of death an Art 2 inquest may now be required.
Where there are arguable grounds to suspect a regulatory failure to ameliorate a risk of death an Art 2 inquest may now be required.
The facts of the case are tragic: in 1998 the applicant’s ten-year-old son, and his friend were found drowned after falling into a 2 metre deep water-filled hole on a construction site where they had been playing near their home. The construction site was the responsibility of a private company, however construction permits had been issued by the Municipality of Antakya which could also issue warning and enforcement notices if unsafe practice was revealed.
When the domestic courts failed to provide a remedy for the applicant’s claim against the Municipality, for failing in its responsibilities for inspecting the work, he applied to the ECtHR for redress. The ECtHR held unanimously that there had been a violation of his substantive and procedural rights under Art 2 ECHR and awarded EUR 10,000 in damages.
At the time of the incident the construction work had been suspended and the building site had been left unsupervised. The evidence suggested that the hole had been dug between two to eight months prior to the deaths, initially to be used as a shelter. The construction workers were aware that the hole regularly filled up with rainwater and occasionally used the accumulated water for the construction work. However, no safety measures had been taken to cover or enclose the hole that was sited only 18 metres from the closest apartment building.
Criminal proceedings were instigated against the owner of the construction site and three officials from the Antakya Municipality for causing death by negligence and failing to comply with the regulations and orders under the Criminal code. Three expert reports were obtained during those proceedings, two of which suggested 25% responsibility should be attributed to the Municipality. One of those reports emphasised how none of the safety measures required under the relevant legislation had been put in place since the construction work had started. The Municipality was required to inspect the construction site periodically in order to identify deficiencies and issue the necessary warnings. However, the Municipality authorities had neglected that duty.
The Criminal Court of First Instance accepted that opinion and held that the site owner and the Municipality were respectively 75% and 25% responsible for the incident. However the Court of Cassation subsequently quashed that judgment as being premature because, under the relevant Turkish law, the criminal proceedings should have been suspended, and eventually discontinued, if no offence of the same or of a more serious kind was committed by the defendants within the next five years.
The families of the deceased children then initiated civil proceedings. The expert report sought by the court for the civil proceedings concluded that the site owner bore 85% of the responsibility for the incident and the children 15% as they should not have entered the construction site, the dangers of which were obvious. The civil court therefore dismissed the case concerning the Municipality. The civil court held that, as the accident had occurred within the boundaries of the construction site and not in a public space or other area under the direct responsibility of the Municipality, the Municipality could not be held responsible for the deficiencies on the construction site, otherwise, the Municipality would have to be held liable for all accidents occurring in any construction.
The applicant appealed against that decision, arguing that the Municipality’s liability for the incident had been established in the criminal proceedings. The Court of Cassation did not agree. Furthermore, it held that the first instance court should not merely have found the Municipality was not responsible on the evidence, but should have summarily dismissed the case against the Municipality for procedural reasons, without examining its substance, as the complaints concerning the Municipality’s responsibility to inspect the construction site fell within the jurisdiction of the Administrative Courts.
The applicant, therefore brought proceedings against the Municipality in the Administrative Court. When the Administrative Court requested the relevant criminal case file it could not be found. Therefore, the Administrative Court relied upon the expert report submitted to the Civil Court and, without undertaking any analysis of its own as to the responsibilities of the Municipality, held that no fault was attributable to the Municipality so dismissed the claim.
Having exhausted domestic proceedings the applicant complained to the ECtHR that the State authorities had failed to protect his son’s right to life and had failed to provide him with timely and adequate redress for his son’s death.
He maintained that the judicial response in the aftermath of the incident had not been adequate, as no responsibility had been attributed to the State authorities in relation to the death of his son. The Government argued that the State authorities could not be held accountable for the death as the responsibility for taking the necessary safety measures on a construction site, lay with the owner of the site. The Government further argued that the risk posed by the hole was recent and so had not been foreseeable prior to the incident and that holding the Municipality accountable for the deaths would impose an excessive burden on the State.
As for the alleged inadequacy of the judicial response to the applicant’s son’s death, the Government maintained that the procedural obligations arising from Art 2 ECHR had also been complied with, as liability for the accident had been determined in both criminal and civil proceedings at the national level and compensation had been awarded against the construction site’s owners.
Decision
In a judgment that, importantly, emphasises that Art 2 ECHR enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard life, the ECtHR held, unanimously, that that there had been a violation of Art 2 ECHR.
Analysis of the Court’s jurisprudence made it clear that the positive obligation did not only apply to situations concerning the personal protection of an individual identifiable as the potential target of a lethal act, but also in cases raising the more general and wider obligation to afford general protection to society. In principle, this latter positive obligation could arise in the context of any dangerous activity, whether public or not, in which the right to life may be at stake. That positive obligation covered a wide range of sectors including dangers emanating from buildings and construction work.
The State’s obligation to safeguard its citizen’s lives included a positive obligation to take regulatory measures as appropriate, geared to the special features of the activity in question, with particular regard to the level of the potential risk to human lives involved. Those regulatory measures must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of those whose lives might be endangered by the inherent risks. The relevant regulations must also provide for appropriate procedures for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels.
In cases involving non-intentional infringements of the right to life, the State’s obligation under Art 2 was not limited to merely putting regulations in place to protect people’s safety in public spaces, but also included a duty to ensure the effective functioning of that regulatory framework. Art 2 of the Convention would not be satisfied if the protection afforded by domestic law existed only in theory, and did not operate effectively in practice.
The State’s obligation under Art 2 is not merely limited to putting regulations in place to protect people’s safety in public spaces, but also includes a duty to ensure the effective functioning of that regulatory framework.
In the present case there was little doubt that the Art 2 positive obligation applied. Activities carried out on construction sites posed risks to human life due to their inherently hazardous nature and so required the State to take reasonable measures to ensure the safety of individuals, including through regulations geared to the special features of the activity.
Whilst there was Turkish legislation setting out the safety measures to be taken on construction sites, the protection offered by the relevant safety measures would be illusory in the absence of an adequate mechanism of inspection to ensure compliance. Given the gravity of the potential dangers that may emanate from unsafe construction sites, particularly where such sites are located in highly populated residential areas, the State should have put in place an effective mechanism for the inspection of those construction sites for which it issued permits. It had not done so. The construction site at issue had never been subjected to any inspection.
Furthermore, the expert report submitted to the Civil Court, which formed the basis of the Administrative Court’s subsequent judgment, did not mention this duty of inspection at all, thus absolving the Municipality of all responsibility in respect of private construction sites.
It could not be said that periodic inspection in relation to specific safety concerns would have resulted in measures which would have excluded any possibility of an accidental death on the site. Hence the court recognized that no causal link might exist for the purposes of civil liability. Nevertheless, the task of the ECtHR was not to establish individual civil or criminal liability but to determine whether the State had fulfilled its obligation to protect the right to life. In that respect proper implementation of an inspection mechanism would undoubtedly have increased the possibility of identifying and remedying the failings which were responsible for the children’s deaths. By failing to adopt any inspection measures whatsoever the Turkish authorities had, therefore, failed to fulfill the obligations under Art 2. There had then been a further violation of Art 2, in that none of the domestic remedies available to the applicant had been effective in bringing the State to account.
Commentary
The facts of this case are stark. The water filled hole was an obvious danger in a residential area and, despite regulations allowing the Municipal authority to take action, the authority had failed to have any oversight whatsoever of this unsafe site. The protracted Turkish legal process gave the family no redress against the State for that failure.
The judgment is equally clear that where the state regulates private activities that present an obvious danger to citizens in general the state must put in place and use proper mechanisms to ensure compliance with the regulations. If not, it risks being found in breach of Art 2 ECHR rights when a death occurs.
In principle, this positive Art 2 obligation could arise in the context of any activity, whether public or not, in which the right to life may be at stake and so covers a wide range of sectors. It is not restricted to dangers emanating from buildings and construction work. The potential for the application of this decision to other sectors is obvious.
Coroners regularly investigate fatalities arising in the context of state regulated activities where state regulators have inspection and enforcement powers, such as the Environment Agency or the CQC. Where there are arguable grounds to suspect shortcomings in regulatory oversight and where proper oversight would otherwise have led to action that might at least have ameliorated the risk of death, then an Art 2 inquest may now be required.