Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 33273/11
Gencel GÜNEŞ and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 December 2010,
Having deliberated, decides as follows:
THE FACTS
1. Gencel Güneş, Hülya Demirkol, Süleyman Demirkol, Eyüp Kıran, Mehmet Ali Orgun and Celal Tokmak (“the applicants”) are Turkish nationals born in 1975, 1948, 1951, 1945, 1936 and 1975 respectively. They live Diyarbakır and were represented by Mehmet Taşkıran, a lawyer practising in Diyarbakır.
The circumstances of the case
2. The facts of the case, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
3. On 8 January 2003 a Turkish Airlines passenger plane departed from Istanbul Atatürk Airport on a scheduled domestic flight (“Flight 634”), to the city of Diyarbakır. Having conducted an uneventful journey, the pilots of the aircraft ‐ a BAE AVRO 146 RJ100 registered as TC-THG ‐ established contact with the Diyarbakır Approach controllers who instructed them to continue their descent with a view to landing on runway 34.
4. At the time of the events the Diyarbakır airport was not equipped with an instrument landing system (ILS) which provides precision lateral and vertical guidance to aircrafts approaching and landing on a runway. As such, the pilots of Flight 634 needed to see the runway clearly before they could land.
5. When the aircraft was on the final approach, the Diyarbakır Approach controllers asked the pilots to proceed and report the runway in sight. This was acknowledged by the pilots.
6. The aircraft continued its descent to the minimum descent altitude (MDA) which was 2800 feet above mean sea level and approximately 500 feet above the ground at that particular airport. According to the cockpit voice recorders (CVR), on reaching the MDA both pilots agreed that the runway was not visible due to intense fog. Nevertheless, despite their inability to see the runway, and therefore in breach of the applicable rules, the flight crew descended below the MDA and proceeded further than the missed approach point (MAP) where he had to abort landing and go around if he was not in sight of the runway.
7. The aircraft impacted the ground at a distance of 900 metres from the threshold of the runway. Both pilots, three flight attendants and seventy passengers lost their lives and the remaining five passengers survived with serious injuries.
8. The applicants Süleyman Demirkol and Hülya Demirkol’s son Ercan Demirkol; the applicant Eyüp Kıran’s son Berat Kıran, daughter-in-law Rojda Kıran and granddaughter M. Helin Kıran; and the applicant Mehmet Ali Orgun’s son İbrahim Orgun were among those who lost their lives. The applicants Celal Tokmak and Gencel Güneş were among the five persons who survived the accident with serious injuries.
9. According to a report published by the Civil Aviation Directorate of Turkey in September 2004, the cause of the accident was the flight crew’s persistence in trying to land despite their inability to see the runway or the runway lights when they were at MDA. The adverse weather conditions were also deemed to have played a role in the accident. It was established in the report that there had been no technical problems with the aircraft and that it had ample fuel to divert to another airport. It was also established in the report that both pilots had adequate and valid licenses and medical certificates to pilot the aircraft.
10. A criminal investigation opened by the Diyarbakır prosecutor in 2003 was completed on 20 May 2005. In closing the investigation the prosecutor noted that, according to the above-mentioned report prepared by the Civil Aviation Directorate, the captain had been responsible for the accident. However, as he had also lost his life, no criminal proceedings could be instigated against him. The prosecutor also stated in his decision that it was open to the interested parties to bring compensation proceedings before the civil courts.
11. On 8 January 2010 the applicants filed an objection against the prosecutor’s decision. They argued, inter alia, that although it was agreed by all concerned that the captain had been responsible for the accident, in their opinion the Turkish Airlines had also been responsible. In that connection they stated that the captain had been a fighter jet pilot in the Turkish Air Force, and alleged that he had been discharged from the Air Force because he had psychological problems. They noted that the medical certificate which enabled him to work as a pilot for the Turkish Airlines had been signed by a neurologist and not by a psychiatrist. As such, the medical certificate had not been valid. They asked for the investigation to be reopened and further expert reports to be obtained from various organisations with a view to examining their allegations and complaints.
12. The applicant’s request was rejected by the Siverek Assize Court on 17 June 2010. The Assize Court considered that the decision holding the captain responsible for the accident had been taken after completing all necessary investigate steps. As the pilot had lost his life, there was no possibility to bring criminal proceedings against him.
13. The applicants’ legal representative informed the Court and confirmed that the applicants had not brought any proceedings for compensation but had made an out of court settlement with the Turkish Airlines and received various sums of money.
COMPLAINTS
14. The applicants complained under Article 2 of the Convention that the captain had been unfit to pilot the aircraft but had nevertheless been given permission to do so contrary to the applicable civil aviation rules and regulations. They also complained that the black boxes had been moved from the wreckage without the prosecutor’s permission.
15. Relying on Article 6 of the Convention the applicants complained that no effective investigation had been conducted into the accident by the prosecutor who had failed to act promptly and to secure crucial evidence such as the black boxes.
THE LAW
16. The Court considers that the applicants’ complaints concern the respondent State’s positive obligations under Article 2 of the Convention, and deems it appropriate to examine them solely from the standpoint of Article 2 of the Convention the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law.
...”
17. The Court reiterates that Article 2 of the Convention does not concern only deaths resulting from the use of force by agents of the State. In the first sentence of its first paragraph it places a positive obligation on the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction. Such a positive obligation has been found to arise in a range of different contexts examined so far by the Court, for example, in the health‑care sector, be it public or private, as regards the acts or omissions of health professionals (see Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004‑VIII, with further references), as well as in respect of the management of dangerous activities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑X), ensuring safety on board a ship (see Leray and Others v. France (dec.), no. 44617/98, 16 January 2001), concerning safety on building sites (see Pereira Henriques and Others v. Luxembourg (dec.), no. 60255/00, 26 August 2003), on a railway station (see Bone v. France (dec.), no. 69869/01, 1 March 2005), about the disappearance of an elderly lady suffering from Alzheimer’s from a nursing home (see Dodov v. Bulgaria (dec.), no. 59548/00, 17 January 2008), concerning a mountain-rescue operation (see Furdík v. Slovakia (dec.), no. 42994/05, 2 December 2008), and a fatal accident in a school sport facility (see Molie v. Romania (dec.), no. 13754/02, 1 September 2009).
18. The above list of areas in which the positive obligation arises is not exhaustive. In the Ciechońska v. Poland case, where the applicant’s husband had died after a tree fell on him in a health resort, the Court found that the State’s duty to safeguard the right to life extended to the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (no. 19776/04, § 67, 14 June 2011).
19. In relation to the issue of regulation of dangerous activities the Court held in its above-mentioned judgment in the case of Öneryıldız that the positive obligation under Article 2 of the Convention imposes above all a duty on the State to put in place a legislative and administrative framework for the regulation of such activities where special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human life (§ 90).
20. Turning to the facts of the present case, the Court observes that the applicants have not sought to argue that the relevant legislative and administrative framework regulating civil aviation in Turkey was inadequate or that it did not provide the sufficient protection required under Article 2 of the Convention. Their complaints relate to the Turkish Airlines’ alleged non-compliance with that framework. The question then arises as to which domestic remedy was the effective remedy to test compliance or otherwise with that framework and offer redress to the applicants if their allegations were found to be well founded.
21. In this connection the Court reiterates that in cases such as the present application in which the infringement of the right to life was not caused intentionally, the positive obligation imposed by Article 2 of the Convention to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I). Having regard to the circumstances of the present case and, in particular, to the applicants’ complaints which concern the Turkish Airlines’ corporate liability (see paragraph 14 above), the Court considers that compensation proceedings would have provided an adequate forum to raise and to examine those complaints and to assess the issue of attribution of any liability. The applicants could thus have obtained an assessment of and compensation for the damages they had suffered. The Court observes, however, that the applicants did not bring a compensation claim and did not seek to argue that those remedies were ineffective or inaccessible.
22. In the light of the foregoing the Court finds that the applicants’ complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 6 October 2016.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President