No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1955 and lives in Wieliczka.

The applicant’s brother J.K. worked as a night guard at a bus terminus in Cracow. On 12 November 2003, at around 4 a.m., his clothes caught fire. Drivers at the station raised the alarm and managed to extinguish the fire. J.K. was subsequently taken to hospital. However, because of his serious injuries he died on 26 November 2003.

On 31 December 2004 the Cracow district prosecutor discontinued the investigation into the circumstances of J.K.’s death. During the investigation it was established that J.K. must have either fallen asleep or fainted and that his clothes had caught fire when they came into contact with an electric heater. The prosecutor concluded that it had been an unfortunate accident and that no offence had been committed.

On 24 January 2005 the applicant appealed. He argued that the prosecution authorities had failed to establish the circumstances of his brother’s death. He submitted that witnesses had given different versions of the events. In addition it had not been established how J.K’s clothes could have caught fire and where the electric heater had been placed. He further stressed that J.K. had suffered from serious diabetes and should not have been allowed to work night shifts.

On 25 May 2005 the Chief Inspector of the Małopolska Regional Command, in reply to the applicant’s complaint, stated that the investigation into the circumstances of J.K.’s death had indeed been too long. The officer in charge had already been disciplined.

On 22 August 2005 the applicant again complained to the Cracow Regional Prosecutor about delays in the proceedings. Subsequently, on 19 October 2005 he complained to the Cracow appellate prosecutor about the fact that he had not received any reply from the Regional Prosecutor.

On 21 November 2005 the Cracow appellate prosecutor confirmed that the proceedings had indeed been too long. He further informed the applicant that the Regional Prosecutor had been reproached for not having replied to his complaint in a timely manner.

On 29 November 2005 the Cracow district prosecutor reopened the investigation into the circumstances of J.K.’s death.

On 22 April 2005 the applicant complained about the actions taken by the police officers on 12 November 2003. He alleged that they had failed to perform their duties, to properly secure the place in which his brother had died and that they had fabricated false evidence in order to direct the prosecution against other persons and obstructed the proceedings.

Following the applicant’s complaint referred to above, on 30 December 2005 the Cracow district prosecutor decided to sever the charges against the police officers responsible for securing the evidence on the day of J.K.’s accident and to deal with them in a separate set of proceedings (see section B).

On 28 November 2006 the district prosecutor replied to the applicant’s complaint about the excessive length of the proceedings and found the complaint ill-founded. The prosecutor informed the applicant that prosecutors were independent in their work and it was up to them to make a decision about when the evidence had been collected and at which point the investigation should be closed. The applicant was also informed that the prosecutor in charge had been promoted to the Regional Prosecutor’s office and that a new prosecutor had inherited his cases.

On 21 September 2007 the proceedings were discontinued because it was found that no offence had been committed.

On 8 October 2007 the applicant lodged an appeal against this decision.

On 19 November 2007 the decision of 21 September was upheld by the Cracow-Śródmieście District Court.

On 22 April 2005 the applicant lodged a complaint about actions taken by the police on 12 November 2003. Following this complaint the original investigation was severed and it was decided to examine the charges against the police in a separate set of proceedings (see paragraphs 13 and 14 above).

On 14 June 2005 the applicant complained to the Chief of Police Force in Warsaw about the actions taken by the local police.

On 24 January 2006 the Cracow district prosecutor discontinued the investigation, finding that no offence had been committed. According to the prosecutor’s findings, on the night of the accident at around 4 a.m. one of the bus drivers, J.Ł., heard a man screaming and calling for help. The man ran into the drivers’ room; his clothes were on fire. J.Ł. extinguished the fire using a shower and called an ambulance and the police. The ambulance arrived first and subsequently, at around 4.30 a.m., the police arrived at the scene. The officers concentrated on helping J.K. They spoke to him about the incident and then he was taken to hospital. The detective, who arrived later, examined the room with the help of the company’s health and safety inspector, S.S. The prosecutor referred to the applicant’s arguments that the scene of the accident had not been properly secured; she stated that since the incident had not resulted in any fatalities, the police officers had not been required to secure the scene in any particular way.

The prosecutor concluded that the police officers had not failed to properly perform their professional duties and that all the relevant procedural rules had been followed.

On 27 February 2006 the applicant lodged an interlocutory appeal against this decision. He maintained that the detective had arrived at the scene six hours after the accident. In addition, he questioned the fact that the detective had been assisted by S.S., who was an employee of the company.

On 28 November 2006 the Cracow District Court allowed the applicant’s appeal and returned the case to the prosecutor. In particular, it instructed the prosecutor to obtain evidence from S.S. and another witness, W.D., and to verify the actions taken by the police in view of the applicable procedures.

On 23 January 2007 the Cracow district prosecutor again discontinued the investigation into the alleged failure of police officers to comply with their duties. The prosecutor had heard evidence from S.S. and W.D. She repeated the reasons given in the decision of 24 January 2006 and considered that the police actions had complied with the applicable procedures and that no offence had been committed.

On 5 February 2007 the applicant lodged an interlocutory appeal against this decision.

On 19 March 2007 the Cracow Regional Prosecutor quashed the decision of 23 January 2007 and returned the case to the district prosecutor to continue the investigation. He considered that the district prosecutor had failed to comply with the court’s instructions of 28 November 2006 and had failed to analyse whether all officers involved, including the one who had taken the call notifying them of the incident and all the officers who had been present at the scene of the accident, had followed the applicable procedures.

On 16 October 2007 the district prosecutor heard evidence from R.P. – one of the police officers who had intervened on 12 November 2003 – in the presence of the applicant. The applicant asked the witness questions but the witness did not remember much of the incident in 2003.

On 31 January 2008 the district prosecutor discontinued the investigation. In an extensive reasoning of his decision the prosecutor referred to testimonies given by fifteen witnesses and to cross-examination of further two witnesses, S.S. and W.D. The prosecutor also relied on the report of the examination of the scene of the accident and on the case file. He concluded that no offence had been committed as regards the alleged breach of professional conduct on the part of the police officers and that there was not enough evidence to substantiate the allegations that the police officers had falsified any evidence.

The two policemen, S.P. and R.P., who arrived at the scene at 4.30 a.m. and who spoke to the applicant’s brother, submitted that they had spoken to the victim directly after the incident; he had been conscious and informed them that he had fallen asleep and when he had woken up his clothes had been already burning.

As regards the applicant’s allegations that the electric heater had been secured only six hours after the arrival of the police officers, the court found that (although this had not been not confirmed by any of the witnesses) the heater might have been moved before it was secured because several other persons had been in the room where the accident had happened before the arrival of the police. However, even if it had been moved, there were no grounds to suspect that this had been done in order to deflect suspicion onto any particular person. Here the court again relied on the victim’s statements that he had caught fire as a result of his own negligence.

The applicant appealed again. He maintained that the prosecutor had failed to properly establish the facts and hear all the necessary evidence. He demanded that witnesses A.M., S.S. and W.D. be cross-examined in order to clarify discrepancies between their statements. He also restated that the policemen who had conducted the investigation had failed to follow the relevant procedures, and in particular that the scene of the accident had not been properly secured. He lastly submitted that “his brother had been blamed for the accident” whereas in fact the real reason was that he had suffered a diabetic shock.

On 14 April 2008 the Cracow District Court upheld the prosecutor’s findings sufficiently to make a decision on the merits. As regards the applicant’s request for cross-examination of certain witnesses the court submitted that the request had already been granted in part because S.S. and W.D. had been cross-examined. As regards the contradictions in the testimonies given by A.M., the court considered that they had been sufficiently cleared up by A.M. herself when she had given evidence for the second time and there had been no contradictions between her statements and the remaining evidence, so further examination would only lead to an unnecessary extension of the proceedings. As regards the applicant’s arguments concerning the failure on the part of the policemen to follow the relevant procedures, the court found that the procedures relied on by the applicant had to be followed only in a case where there was a suspicion that a crime had been committed: in the present case there had been no evidence that any third person might have been involved in J.K.’s death. The court further held that the same applied to the requirement to secure the scene of the accident; the applicant’s brother, who had been interviewed after the accident, admitted that his clothes had caught fire because of his carelessness (w wyniku nieuwagi). This also demonstrated that the suspicion that a crime had been committed had been ill-founded.


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Just satisfaction reserved (Article 41 - Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1961 and lives in Schrobenhausen, Germany. Through the German stock market, he purchased six hundred and fifty German Certificates in Demirbank, which at the time was identified as the fifth largest private bank in Turkey.

By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu, hereinafter referred to as “the Board”) decided to transfer the management and control of Demirbank to the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14 (3) of the Banking Activities Act (Law no. 4389). In its decision the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also confiscated all properties belonging to Demirbank.

On 31 January 2001 all equities of the bank were removed from its account at the Istanbul Stock Exchange and were transferred to the account of the Fund. Subsequently, on 20 September 2001 the Fund entered into an agreement with the HSBC bank, and sold Demirbank to the latter for 350,000,000 United States dollars (USD). As a result, on 14 December 2001 Demirbank’s legal personality was extinguished and it was struck off the commercial register.

On 2 February 2001, the main shareholder of Demirbank, namely Cıngıllı Holding A.Ş., brought administrative proceedings against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “the Agency”) before the Ankara Administrative Court, seeking the annulment of the decision of 6 December 2000 regarding the transfer of Demirbank to the Fund.

The Ankara Administrative Court found that it lacked jurisdiction, and transferred the case to the Supreme Administrative Court.

In its submissions before the Supreme Administrative Court, the plaintiff claimed that its property rights had been violated. It also raised a plea of unconstitutionality under section 14 of the Banking Activities Act. The company further stated that prior to November 2000 Demirbank had never encountered major financial problems. It was pointed out that pursuant to section 14 (2) of the Act, a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures. However, no such warning had been given in the instant case. Secondly, the Board had not claimed that Demirbank’s financial situation was so weak that it could not be strengthened even if specific measures were taken. Lastly, the company stated that following the transfer of the bank to the Fund, a General Assembly composed of the Fund’s officials had exonerated the former managers of Demirbank, holding that they had not been at fault in the incident leading to the bank’s transfer.

After examining the file, on 3 June 2003 the Supreme Administrative Court dismissed the case. It held that the takeover of the bank by the Fund had been in accordance with section 14 (3) of the Banking Activities Act.

On 18 December 2003 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the decision of 3 June 2003. In its judgment, the court held that prior to ordering the transfer of Demirbank to the Fund, the Board should have carried out an objective evaluation of the bank’s financial situation. The court also concluded that the Board should first have ordered Demirbank to take specific measures in accordance with section 14 (2) of the Banking Activities Act before applying section 14 (3) of the Act.

On 29 April 2004 a request for rectification lodged by the Agency was refused.

The case was remitted to the Supreme Administrative Court, which delivered its decision on 5 November 2004, upholding the decision of the Joint Administrative Chambers of the Supreme Administrative Court. It accordingly annulled the Board’s decision of 6 December 2000 ordering the transfer of Demirbank to the Fund, holding that the takeover had been illegal. A further appeal and a request for rectification lodged by the Agency were rejected on 14 April 2005 and 15 December 2005 respectively.

On 20 September 2001 Ms S. Cıngıllıoğlu, the main shareholder of Cıngıllı Holding A.Ş., brought administrative proceedings against the Fund before the Ankara Administrative Court, seeking the annulment of the agreement to sell Demirbank to HSBC.

Given that the transfer of Demirbank to the Fund had been found to be illegal by the Joint Administrative Chambers of the Supreme Administrative Court, on 21 April 2004 the Ankara Administrative Court annulled the agreement entered into by the Fund and HSBC on 20 September 2001. An appeal and a request for rectification lodged by the Fund were rejected on 3 June 2005 and 24 February 2006 respectively.

Following the transfer of Demirbank to the Fund, the applicant applied to the Board and claimed compensation. He did not receive any reply.

Subsequently, on 31 May 2002, the applicant brought compensation proceedings against the Agency before the Supreme Administrative Court. He argued that he had lost his shares in Demirbank as a result of its transfer to the Fund, and requested the annulment of the Board’s implied rejection of his compensation claim.

On 24 June 2003 the Supreme Administrative Court dismissed the applicant’s case. On the basis of a previous judgment it had rendered on 3 June 2003 (see paragraph 11 above), the court found that the takeover of the bank by the Fund had been in accordance with section 14 § 3 of the Banking Act.

The applicant lodged an appeal.

On 21 October 2004 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the judgment. It indicated that the previous judgment dated 3 June 2003, which had constituted the basis of the latter, had been quashed on 18 December 2003 (see paragraph 12 above).

The Agency’s rectification request was rejected on 26 May 2005.

On 20 September 2005 the Supreme Administrative Court held that it lacked jurisdiction ratione materiae, as the applicant’s case merely concerned an implied rejection by the Board, which should be assessed by the Ankara Administrative Court.

On 30 December 2005 the Ankara Administrative Court dismissed the case as out of time. The court held that the applicant should have initiated proceedings within sixty days following 31 January 2001, the date on which Demirbank’s equities had been transferred to the Fund’s account at the Stock Exchange (see paragraph 7 above).

The Supreme Administrative Court upheld the first-instance court’s judgment on 12 September 2006.

Following the annulment of the decision regarding the transfer of Demirbank to the Fund by the domestic courts (see paragraphs 8-14 above), on an unspecified date in 2006 the applicant initiated another set of administrative proceedings. Relying on the restitutio in integrum principle, he claimed that the Agency should enforce the above-mentioned judgment of the Supreme Administrative Court, and that his rights as a shareholder of Demirbank should be reinstated.

On 27 September 2007, after indicating the administration’s obligation to execute judgments which are enforceable, the Ankara Administrative Court held that the enforcement of the Supreme Administrative Court judgment in the instant case was legally impossible as, following its sale to HSBC, Demirbank had been struck off the commercial register.

On 16 March 2009 the Supreme Administrative Court upheld that judgment. The court indicated that the execution of the judgment dated 5 November 2004 could be secured by the return of the supervisory and executive rights to Demirbank’s shareholders, and did not require the restitution of the actual shares. It maintained that even if that was the case, the judgment could not be executed, as Demirbank’s shares had ceased to exist as a result of the loss of its legal personality following its merger with HSBC.

The Supreme Administrative Court rejected the applicant’s request for rectification of the judgment on 17 September 2009.

Following the annulment of the agreement to sell Demirbank to HSBC (see paragraphs 15-16 above), on 30 April 2006 the applicant applied to the Fund for compensation for the loss of his shares resulting from the bank’s unlawful sale to HSBC. The Fund rejected that request on 15 June 2006.

On an unspecified date in 2006, the applicant accordingly brought a third set of proceedings against the Fund, claiming compensation for his lost shares on the basis of the annulment of Demirbank’s sale to HSBC.

On 15 April 2008 the Istanbul Administrative Court dismissed the case as out of time, indicating that the sixty-day time-limit for the initiation of administrative proceedings had started running on 31 January 2001, the date on which Demirbank’s equities had been transferred to the Fund’s account at the Stock Exchange.

The judgment of the first-instance court was upheld by the Istanbul Regional Administrative Court on 21 January 2009. The decision is final under national law.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants, Mr. Mehmet Özel, Mr Ali Kılıç, Mr İsmail Erdoğan, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Mrs Şehriban Yüce (Ergüden), were born in 1974, 1955, 1938, 1954, 1960, 1956, 1927 and 1966 respectively.

The Çınarcık Municipal Council, meeting in October 1994, adopted a decision increasing to six storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in Kocadere, on allotment 987, plot 1, and allotment 1257, plot 1. Pages 7 and 8 of the minutes of that meeting, recording the Municipal Council’s discussions, comprise the following exchange:

“H.D.: ... at the Municipal Council meeting of 17.10.1994 [the height of buildings in] the restricted zone was raised to six storeys in Kocadere, where, on the worksite belonging to K.P., [the blocks were already] six storeys high. [During] the on-site visit it was noted that there were two more six-storey buildings in Kocadere. I think the decision we took at the time was insufficient. I am therefore requesting a modification of the restricted zone for sites comprising six-storey blocks of flats...

The Mayor: ... As I said at the 17.10.1994 meeting, our friend here is proposing legalising the six-storey buildings which have been completed, without bothering about the mistakes made in the past... I repeat what I said at the June meeting: let us correct, rather than mull over, our past mistakes. I acknowledge that mistakes have been made. But from now onwards no one will be able to add an extra storey, we will not allow it. And it was not us that made the mistake. That was already the situation when we arrived [in the municipality].

N.P.: Mr Mayor, three persons have built six-storey blocks in Kocadere. What a cheek! And we subsidise these builders.. V.G. has built six-storey blocks on the site ... Who was asked for authorisation? ... I don’t have to clean up his mess! In June we decided that he should coat [the buildings] in concrete. He should just bury them... the municipality should revise the plans for the whole Kocadere region and authorise six storeys ...

Y.B.: The new Municipal Council has been in place for seven months now. Have we visited the site where K.P.’s and V.G.’s buildings stand to record our findings and impose a fine? What exactly have we done so far?

The Mayor: They are standing trial. As things stand [their buildings] are not lawful. They have put up five- to six-storey buildings, which is against the law... We at no stage authorised their construction. There are two or three blocks. Either we authorise the six storeys or they will have to be demolished... If you ask me, I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the six storeys, thus correcting the mistake. After which we will not allow any more such buildings...

Y.B.: Mr Mayor, you did not answer my questions. What has been done about these blocks over the last seven months?

The Mayor: As I say, the builders are being prosecuted. Representatives of the housing department have inspected the site and the municipality has fined certain persons. Furthermore, we will not issue permits [for] these buildings before ... having imposed fines of two or three million Turkish lire ...

M.P: Mr Mayor, the fine you mentioned is the second stage in proceedings. I would remind you that the first stage, [relating to] your responsibility as Mayor, is to implement section 32 of the Urban Planning Act (Law No. 3194). Pursuant to that legislative provision, apart from [cases of] constructions which are exempt from the permit requirement, where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices, the Municipality or the Office of the Governor must immediately visit the site and work must stop forthwith. You have been in office for six months now: have you, or have you not, honoured that obligation?

The Mayor: ... I repeat that I did not authorise the buildings in question... They had already been finished and roofed when I took up my duties.

On 8 and 12 June 1995 a Çınarcık resident complained to the Directorate General for Research and Implementation of the Ministry of Housing and Public Works about the alleged unlawfulness of the buildings constructed in the Çınarcık municipality by the V.G. company.

The Çınarcık Municipal Council held a meeting on 13 October 1995, during which the Municipal Head of Technical Services informed the councillors of the criteria for amending the municipal urban planning scheme. The minutes of the deliberations of the Municipal Council read as follows:

“The Municipal Head of Technical Services: Mr Mayor, I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued. According to these provisions, two conditions must be met for such work: the first relates to the width of the street, and the second concerns technical and social infrastructure. I would just inform the Council that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings.

Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ...”

Following these discussions, the Municipal Council accepted several applications for amendments to the municipal urban planning scheme.

On 4 October 1996 the Ministry of Housing and Public Works (the “Housing Ministry”) invited the Office of the Governor of Yalova to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations, to monitor the action taken by that municipality and to keep the Çınarcık resident who had complained to the aforementioned directorate informed of the situation.

On 7 October 1996 the Municipal Council agreed that the number of storeys authorised for the buildings already constructed could be increased from five to six.

On 30 May 1997 the Housing Ministry invited the Governor of Yalova to adopt the urgent measures set out in sections 32 and 42 of the Urban Planning Act (see Relevant Domestic Law, paragraph 134 below) in respect of the buildings and the real estate developers at issue.

On 18 August 1997 the Office of the Governor of Yalova informed the Housing Ministry that despite the transmission of the latter’s orders to the municipality in question, the latter had failed to take any action.

By letter of 15 September 1997 the Housing Ministry invited the Office of the Governor of Yalova to issue the municipality with a final warning on the need to comply with its orders, failing which action would be taken against all persons failing to comply with their obligations under the Urban Planning Act.

On 15 October 1998 the Housing Ministry reminded the Office of the Governor of Yalova that section 32 of the Urban Planning Action prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits, and in fact required the authorities to correct any incompatibility with those permits.

During the night of 17 August 1999 the Izmit region, located on the coast of the Marmara Sea, was hit by an earthquake of a magnitude of 7.4 on the Richter scale. The earthquake was one of the deadliest to hit Turkey in recent years. According to official statistics, it killed 17,480 persons and injured 43,953.

Seventeen buildings were destroyed in the municipality of Çınarcık, ten of them in the so-called Çamlık sitesi and Kocadere sitesi estates. On those estates 195 persons lost their lives and hundreds of others were injured as their dwellings collapsed.

Seher Özel, the mother of Mrs Akan and Mr Özel, Mehmet and Şadiye Yüce, the parents of Mrs Yüce (Ergüden), Hasan Kılıç, the son of Mr and Mrs Kılıç, Kazim Erdoğan, the son of Mr and Mrs Erdoğan, and Can Çakır, the son of Mr Çakır, were buried under the rubble of the blocks of flats in Çınarcık, where they had been when the earthquake struck. Mr Çakır was himself trapped beneath the rubble for about ten hours. Mrs Yüce (Ergüden) was injured, and personally rescued her daughter from the debris. Mrs Akan had also been trapped under the rubble for several hours.

According to a medical report of 18 August 1999 drawn up by a doctor working at the Bursa hospital, Mr Çakır had been placed under observation: he had suffered burns to various parts of his body and display whole-body trauma and respiratory problems.

On 24 August 1999 the Yalova public prosecutor visited Çınarcık together with technical experts and officers from the Directorate of Security. On the same day official inspection reports were drawn up on the Çamlık estate, covering allotment 1648/15-1, plot 7, sections C, D and E, allotment 1649/15-1, plot 3, and allotment 1927/15-1, plot 1, section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the material used for the construction had been sea-sand based and that as a result the cement had lost its binding capacity.

On 25 August 1999 the Yalova public prosecutor and a group of technical experts visited the Kocadere estate. On the same day they drew up official reports on allotment 1258/3-2, plot 1, allotment 1256/32, plot 5, section D, and allotment 1257/3-2, plot 1. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the concrete displayed a very poor granulometry, that the concrete had not been cured, that the metal brackets in the buildings had not been properly fastened to the columns, and that because of the corrosion of the brackets the iron had worked loose from the concrete.

Moreover, on 13 September 1999 Mrs Akan had requested that the Yalova Regional Court determine, on the basis of the evidence gathered, the causes of the collapse of building D2 on allotment 1649-15/1, plot 3, in the Çamlık estate, under whose rubble her mother had died, and establish the relevant responsibilities. An expert opinion was commissioned to that end on the same day.

On 13 October 1999 the expert opinion commissioned set out the following findings:

(d) Defects noted upon examination of the collapsed building, the rubble and the construction blueprint.

The height of the building was increased by 2.80 m by raising the basement above ground level, thus transforming it into the ground floor.

The foundations of the building were raised to soft ground (topsoil) level, which had low stability in terms of ground safety stress; the stability calculations ... were at no point revised.

The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint...

Neither the basement included on the plan, whose existence would have greatly increased earthquake resistance, nor the reinforced concrete retaining walls, which, according to the plans, were to have surrounded the basement, were ever built.

The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting, which had been a major factor in diminishing the concrete’s resistance.

It was noted that the reinforcing rods inside the concrete had rusted, suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal.

The broken beams found in the rubble showed that the 20-cm distances between the brackets had not been respected, and in some places the interstices measured 30 cm...

... The stress testing carried out on the samples showed that their stress resistance was only half what it should have been.

In conclusion: ... The building was constructed without any kind of technical control; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner’s request in order to increase the number of housing and commercial units. Furthermore, the fact that the municipality failed to stop the building work raises issues. It is therefore necessary to ascertain whether a permit was issued for the building’s shallow foundations, which were, in fact, incompatible with the blueprint as from the first storey. If such a permit was issued, it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality. If so, it is necessary to establish the identities of the signatories of that occupancy permit. It is possible that other blocks have been built without inspection by the Çınarcık municipality. The photographs taken show buildings with seven storeys above ground level and others with two storeys. It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction.”

On 6 September 1999 the Yalova public prosecutor took statements by V.G., the real estate developer responsible for buildings which collapsed in Çınarcık. V.G. stated that he had been working in the real estate field for nine years and that he had constructed numerous buildings with his partnership, the company V.G., and with the company G. Arsa. He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself, but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold. He also submitted that the buildings located on allotment 1927/15-1, plot 1, section D, allotment 1649/15-1, section C, and allotment 1649/15-1, plot 3, section D, had been constructed by İ.K. and Z.C. He did not know who had constructed the buildings in the Çamlık estate which had collapsed. He added that he was neither a construction engineer nor an architect, and that was why he called on the services of persons with expert knowledge of these fields, who should, in his view, be held responsible.

V.G. was remanded in custody the same day.

On 14 September 1999 the Yalova public prosecutor charged five individuals: the partners in the company V.G. Arsa Ofisi, to wit V.G., C.G. and Z.C., and also the company’s scientific officers, to wit D.B. and İ.K. They were charged with having caused, through negligence and recklessness, the deaths of 166 persons, buried under the rubble of three buildings which they had constructed in breach of the relevant norms. It transpired from the indictment that several site sections – section E on allotment 1927, sections C and D on allotment 1649, and sections A, C, D and E on allotment 1648 – had been built in Çınarcık, on Çamlık square, and that three buildings, which had totally collapsed, had been erected in the Kocadere estate, on Hanburnu square, on allotments 1256 and 1258. It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had, in particular, found as follows: in the buildings in question, the iron brackets had not been tightened at the interstice between the beams and the columns; mussel shells had been found in the concrete, resulting in low resistance owing to the use of sea sand and sea gravel; the distance between the columns and the beam brackets was 40 cm in places; and there was insufficient iron in some of the columns.

Criminal proceedings were commenced before the Yalova Criminal Court.

In September 1999 İ.K., D.B. and C.G. were remanded in custody in absentia by the Yalova Criminal Court.

On 30 September 1999 Z.C. was remanded in custody.

On 6 October 1999 the Yalova public prosecutor wrote to the General Directorate of Criminal Affairs of the Ministry of Justice to inform it of the following facts: a large number of articles had been published in the local and national press about V.G.; given the very large number of deaths involved, the trial would be attended by many journalists and also numerous relatives of the victims; there was likely to be a very tense atmosphere during the hearings; Yalova prison had been closed following the earthquake and the prisoners were therefore housed in the Bursa prison; the courtroom would be too small for the number of persons attending proceedings; there were credible risks of the accused being abducted or murdered; and any preventive measures which the security forces would be able to put in place would be insufficient, such that it would be better to transfer the case to a different court.

On 14 October 1999 the General Directorate of Criminal Affairs of the Ministry of Justice invited the State Prosecutor with the Court of Cassation to transfer the case from the Yalova Criminal Court to a different criminal court pursuant to Article 14 in fine of the Code of Criminal Procedure, in order to guarantee public security during the proceedings.

On 15 October 1999, before the start of proceedings before the Yalova Criminal Court, the Court of Cassation, to whom the matter had been referred, decided to transfer the case to the Konya Criminal Court for reasons of security during the proceedings and of the accused’s safety.

On 19 October 1999, therefore, the Yalova Criminal Court transferred the case file to Konya Criminal Court.

On 20 October 1999 Mr Çakır applied to join the proceedings as a third party. On the same day Mrs Akan and Mr Özel also applied to join the proceedings as third parties, and declared that they reserved their rights as potential civil parties.

On 29 October 1999 Mr and Mrs Erdoğan and Mr and Mrs Kılıç lodged similar applications, and Mr Çakır reiterated his request.

On 20 November 1999 Mr Çakır forwarded a memorial requesting the criminal conviction of V.G. and his partners and stating that he reserved his rights vis-à-vis claiming compensation for the pecuniary and nonpecuniary damage which he considered he had sustained.

On 29 November 1999, after the case had been transferred to the Konya Criminal Court, Mr Çakır once again applied to take part in proceedings as a third party, and declared that he reserved his rights as potential civil party to proceedings. Mrs Yüce (Ergüden) also applied to take part in the criminal proceedings as a third party. Similarly, counsel for Mrs Akan and Mr Özel submitted a third-party application on behalf of each of her clients.

On 29 December 1999 Mr and Mrs Erdoğan applied to participate in proceedings, reserving their rights as potential civil parties. They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son. Mr and Mrs Kılıç also lodged a thirdparty application. Mr Çakır was heard as a victim, and he gave evidence against the accused. Counsel for Mr Çakır requested the admission of his client’s application to take part in proceedings. At the conclusion of the hearing held on the same day, the Konya Criminal Court admitted that thirdparty application.

On 28 January 2000 the Konya Criminal Court examined Mr and Mrs Erdoğan’s third-party application, and noted that their son’s name was not on the list of deceased victims set out in the indictment. The court therefore requested submissions from those two applicants, including fresh information on the deceased persons. In a memorial of the same day, Mr and Mrs Erdoğan requested that charges be pressed against the officials allegedly responsible for the impugned acts.

During the hearing of 21 February 2000 the Konya Criminal Court questioned the victims, the accused and their lawyers. Mr Çakır was examined in his capacity as a third party, and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question.

According to the official record of the hearing held on 20 March 2000, Mrs Akan, Mrs Yüce (Ergüden) and Mr Çakır had been examined as third parties: Mrs Akan had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings; and counsel for Mr Çakır had also demanded the conviction of those officials. At the conclusion of the hearing, the State Prosecutor was asked for information on the measures adopted by his Office regarding the provincial officials, as well as those working in the Çınarcık municipality and the Housing Ministry. Furthermore, V.G. and Z.C. were released on parole.

On 21 April 2000 Mr Çakır once again requested the prosecution of the Mayor of Çınarcık and of the municipal Head of Technical Services and Architecture. Mr and Mrs Kılıç were granted third-party status in the proceedings.

On 30 June 2000 Mr Erdoğan was granted third-party status in the proceedings. Mr Çakır was heard as a third party, and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed. Counsel for Mrs Akan reiterated a request previously submitted for provisional measures covering all of V.G.’s assets.

On 22 September 2000, during the proceedings, the Yalova public prosecutor once again charged the five accused persons with having caused the deaths of several other persons through negligence and recklessness.

On 12 October 2000 three experts from the Istanbul Technical University prepared a report on their inspection of ten buildings which had collapsed, seven of them in the Çamlık estate and three in the Kocadere estate.

The conclusions of this expert report read as follows:

“Tectonics and seismic activity in the region between Çınarcık et Yalova

... This region is one of the most dangerous in seismic terms, which is why it has been marked out as a major hazard area on the map of Turkish seismic regions.

Impact of the Izmit earthquake of 17 August 1999 on the region between Çınarcık and Yalova

The 17 August 1999 earthquake, which was of a magnitude of 7.4 on the Richter scale and whose epicentre was at Izmit, created a 120-km-long superficial fault from Gölcük to Akyazı ... The fault segment was interrupted at a distance of 50 km from Çınarcık ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods.

Conclusions

The coastal zone between Çınarcık and Yalova is an extremely dangerous region in seismic terms ... The Çamlık estate, which collapsed, had been built on an active rockslide area and on particularly soft soil. In such a high seismic risk region there can be no valid reasons for issuing building permits for six- or seven-storey buildings on such soft soil. Moreover, the fact that six-storey building located 300 m away in the Çamlık estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the Çamlık estate had building defects.

Appraisal of the blueprints and the permits

Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed...

Expert reports included in the case file

The expert appraisals commissioned by the Yalova public prosecutor ... highlighted the following shared defects:

– Concrete resistance was unsatisfactory. The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells. It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned.

– The metal brackets on the load-bearing parts had not been reinforced and the anti-rust fixtures [paspayı] were unsatisfactory... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete.

– The softness of the soil was established.

Establishing the responsibility of the accused persons and conclusions

The owner and developer of all the impugned buildings [which] collapsed during the 17 August earthquake is the “V.G. Arsa ofisi” partnership. The founding partners of that company are İ.K., Z.C., C.G. ... Assessment of the evidence and documents contained in the case file shows that V.G. was the actual organiser [of the project]... For this reason V.G.’s responsibility is estimated at 2/8.

The responsibility of the public authorities which allowed the urban development of the Çamlık and Hanburnu neighbourhoods, authorised the multi-storey buildings there without commissioning the requisite prior geological studies, failed to provide for satisfactory supervision of the projects in the area, failed to request studies of the soil ..., failed to prevent the defective concrete-manufacturing procedures [and] failed to monitor the work of those responsible for the technical applications is estimated at 2/8.

C.G.’s responsibility is set at 1.5/16 and Z.C.’s at 1.5/16...

İ.K.’s responsibility is set at 3/16 on the grounds that he was a partner in the V.G. company, but also because he was responsible for the architectural and structural design of seven buildings and for the relevant technical applications...

D.B.’s responsibility is set at 1/8 because he was responsible for the architectural and structural design of three buildings and for the relevant technical applications.

On 23 October 2000 the Yalova Criminal Court, to which the case had been referred following the indictment of 22 September 2000 (see paragraph 44 above), found that a similar action against the accused was pending and therefore requested the joinder of the two sets of proceedings.

On 22 December 2000 the Konya Criminal Court declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question; the case was then referred to the Konya Assize Court.

Between 16 April 2001 and 21 October 2004 the Konya Court Assize held twenty-three hearings.

At the hearing on 16 April 2001 the State Prosecutor pointed out that transferring the case to Konya was against the procedural regulations and in breach of the rights of the third parties. He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in Yalova, where the offence had been committed. The applicants also applied for the setting aside of the transfer order in question, submitting that the security grounds advanced no longer applied. On the same day the Konya Assize Court rejected the application, pointing out that pursuant to the case-law of the Court of Cassation the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied. Counsel for Mr Özel, Mrs Akan, Mr and Mrs Kılıç, and Mr and Mrs Erdoğan presented their case during the hearing.

On 26 April 2001 the Istanbul Criminal Court remanded C.G. in custody.

On 3 May 2001 the Konya Assize Court wrote to the Konya public prosecutor requesting the preparation of a further expert report, complementing that of 12 October 2000, on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards.

On 8 June 2001 Mrs Akan gave evidence. She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble. She also submitted that the accused had not been the only parties criminally responsible for the impugned acts, as various municipal officials and members of the Chamber of Architects responsible for the technical oversight of the constructions in question had also been guilty. Counsel for that applicant stated that he had heard, through unofficial channels, that the decision had been taken to broaden the investigation in order to establish the municipal officials’ responsibility, and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question. During the 8 June 2001 hearing Mr Çakır also gave evidence as a third party, as did another person, who stated that the Council of State had adopted a decision on 4 October 2000 to the effect that the Mayor of Çınarcık could not be prosecuted (see paragraph 89 below).

On the same day V.G. was once again remanded in custody.

On 11 June and 6 July 2001 the Konya Assize Court wrote to the Office of the Governor of Yalova , asking, in particular, whether any action had been taken against the Mayor of Çınarcık and the other officials liable to be held responsible for the consequences of the earthquake.

On 1 August 2001 V.G. and C.G. were released on parole. In a memorial of the same day, Mrs Akan and Mr Özel requested the indictment of the officials whose responsibility had been engaged for the impugned acts. Mr Çakır also submitted a memorial requesting the conviction of the accused and the prosecution, in the framework of the ongoing criminal proceedings, of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality.

At the hearing on 1 October 2001 Mr Çakır read out the minutes of meetings of the Çınarcık Municipal Council which, in his view, established that the buildings in the zone at issue had been constructed without prior authorisation. He once again submitted that the municipality and the officials had been responsible for what had happened.

On 11 April 2002 the Assize Court noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials (see paragraph 87 below) previously issued by the Interior Ministry had been set aside by the Council of State (see paragraph 89 below) and that the Inspectorate of Administration had adopted an opinion to the effect that there was no need to bring proceedings.

In a memorial of 16 July 2002 Mr Çakır requested the commencement of proceedings against the Mayor of Çınarcık and the Head of Technical Service and Architecture, suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings.

On 24 July 2002 General Directorate of Local Administration of the Interior Ministry prepared a document for the Assize Court mentioning the following points: (a) the Interior Ministry’s 4 May 2000 decision to authorise a criminal investigation had been cancelled on 4 October 2000 by the Council of State, which meant that no action had been taken against the officials in question (see paragraph 89 below); (b) a report on an inquiry authorised by the Interior Ministry on 10 September 2001 had also concluded that there were no grounds for proceedings against the officials in question (see paragraph 91 below); and (c) another report on an inquiry authorised by the Interior Ministry on 25 January 2002 had concluded that there was no need to prosecute the officials in question (see paragraph 93 below).

At the hearing on 17 October 2002 the Assize Court noted that the document from the Directorate General of Local Administration of the Interior Ministry had been read and added to the case file.

In a claim submitted on 11 November 2003 Mr Çakır demanded a certain sum in respect of procedural expenses for the transfer of the case to Konya, and reserved his rights as regards that outlay.

On 18 November 2003 he repeated his request for the indictment of the officials whose responsibility had been engaged.

On 1 March 2004 Mrs Akan and Mr Özel submitted a memorial on the merits in which they relied on Article 6 of the Convention to complain of unfair proceedings and an infringement of the “natural judge” principle owing to the transfer of the case to Konya and a breach of the right of prosecution. They considered that their inability to obtain leave of prosecution under the Prosecution of Civil Servants and other Public Officials Act (“Law No. 4483”) with regard to the municipal officials in question was contrary to the principle of equality before the law, as well as Articles 6 and 13 of the Convention.

On 4 May 2004 the Konya Assize Court ordered the separation of the case in hand from that concerning D.B. and İ.K. on the ground that the latter two accused persons had been untraceable for almost three years, thus delaying the proceedings.

On the same day a joint memorial was lodged with the registry of the Konya Assize Court by Mr and Mrs Kılıç and Mr and Mrs Erdoğan, declaring that they reserved their rights to claim civil damages in the criminal proceedings. Mrs Yüce (Ergüden) lodged a third-party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused’s company had been sold off, which she considered as jeopardising the chances of success for any future action for damages. She also pointed out that the Mayor of Çınarcık had been given a thirty-five-month prison sentence for the architectural practices implemented in the Çamlık estate (see paragraph 85 below), and that he had been removed from office.

On 24 June 2004 İ.K. was remanded in custody.

On 5 July 2004 a fresh expert report was prepared at the Assize Court’s request. According to the report, V.G. had been issued with six different building permits, twenty-two blocks had been built in Çınarcık for which no occupancy permit was to be found in the assessment file, and 195 persons had died buried in the rubble of those buildings, 152 of them in the Çamlık estate, 12 in the Kocadere estate and 31 in the V.G. estate. It also transpired from that report that İ.K. had been responsible for the architectural project regarding the buildings in the Çamlık estate, on allotment 1927/15-1, plot 1, allotment 1649/15-1, plot 3 and allotment 1648/15-1, plot 7, and that D.B. had been in charge of the architectural project regarding the buildings in the Kocadere estate, on allotment 1258/32, plot 1, allotment 1257/3-2, plot 1, and allotment 1256/32, plot 5. The report also specified that the V.G. company, in which İ.K. and Z.C. had been partners, had been responsible for the construction of all those buildings.

On 14 October 2004 the State Prosecutor presented the prosecution case on the merits. He submitted that 195 persons had died in the estates built by V.G.: 115 persons had been killed on allotment 1925, plot 1, allotment 1648, plot 7, and allotment 1649, plot 3, and 80 other persons in other buildings. Those deaths had been caused not by the earthquake alone but also by the actions of the accused, who had used deficient materials with full knowledge of the risks involved. He demanded the conviction of the accused pursuant to Articles 383/2 and 40 of the Penal Code, insisting that the sentence should be delivered six times, one for each of the building permits issued.

On 21 October 2004 the Assize Court found the accused V.G., C.G. and Z.C. guilty of endangering the lives of others through negligence and recklessness and, pursuant to Article 383/2 of the Penal Code, sentenced each of them to twenty years’ imprisonment without parole and four years and twelve months’ imprisonment, and to a fine of 360,000,000 Turkish lire (TRL). The Assize Court gave the following reasons:

“... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent, virtually intentional, acts had been built in breach of many current legal obligations. Even though the area in question had been classified as a major seismic hazard zone, no soil studies had been carried out on the worksites. The concrete, metal and other materials used lacked the necessary resistance. A large number of obligations set out in the blueprint were breached. The buildings thus constructed collapsed under the impact of the earthquake, and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [offset] the unlawful acts committed, such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings.

... The provisions relating to the concurrence of offences are applicable to this case... The present proceedings concern six different building permits... Consequently, the accused were held responsible for six different events.

Having regard to the lists drawn up by the Governor of Çınarcık district and by the Kocadere municipality... 11 persons lost their lives on plot no. 1, allotment 1927 (1st section), 28 on plot no. 3, allotment 1649 (2nd section), 76 on plot no. 7, allotment 1648 (3rd section) and 2 on plot no. 5, allotment 1256 (blocks A and B). It has not been established with certainty whether there were any deaths on the other plots. Where it was established that there were deaths, it was also established that buildings collapsed. Therefore, it must be acknowledged that in those buildings people’s lives had been jeopardised. Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article 383/2 of the Penal Code, multiplied by four, as regards the deaths which occurred in four zones covered by a permit. As regards the two zones covered by a permit where no loss of life could be established, the first section of Article 382/2 of the Penal Code, multiplied by two, must be applied.

All the buildings were constructed by the real estate developer, that is to say the ‘V.G. Arsa Ofisi’ company ... At the material time the two accused persons V.G. and C.G. had been partners in that company. The accused person Z.C. had also been a partner in the company in respect of the buildings covered by permits. Z.C. had also been the owner of five buildings covered by permits. Insofar as Z.C. was involved in the construction of the buildings, he must be held responsible for all the relevant actions... Even though permits had indeed been issued for all the building lots, none of them was covered by an occupancy permit, that is to say a permit for utilisation. In this context, since at the time of the offence the company and its partners were still under the obligation to correct the shameful [defects] in the buildings, [they] are also criminally liable for the collapse of the latter owing to these disgraceful [defects] throughout the whole period...

As already stated above, the consequences of the impugned acts amounted to a disaster. Solely because of those acts, 195 persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify. The accused bear enormous responsibility for those consequences. As highlighted by the expert reports, using such construction methods in a 100% earthquake risk zone really was a recipe for disaster...”

On 4 November 2004 İ.K. was also found guilty of homicide and bodily harm through recklessness. He was sentenced to twenty years’ imprisonment without parole and four years and twelve months’ imprisonment, and to a fine of TRL 360,000,000.

The accused appealed on points on law.

By judgment of 27 June 2005 delivered on 6 July 2005 the Court of Cassation set aside the convictions of V.G., C.G. and Z.C. on the following grounds: the fact that a judge had failed to sign the minutes of the 20 March 2000 hearing; conviction for the collapse of a building on allotment 1257, plot 1, which was not mentioned in the indictment; the failure to read out the 22 September 2000 indictment before taking statements from the accused; and the entry into force of the new Penal Code.

By judgment of 18 July 2005 delivered on 20 July 2005 the Court of Cassation also set aside İ.K.’s conviction on the following grounds: the conviction for the collapse of a building on allotment 1257, plot no. 1 was not mentioned in the indictment; one judge had failed to sign the minutes of the 20 March 2000 hearing; the criminal prosecution of İ.K. should have been joined to that of the other accused persons; and the new Penal Code had come into force.

Between 18 June 2005 and 11 April 2006 the Konya Assize Court, to which the case had been referred back by the Court of Cassation after the setting aside of the 21 October 2004 judgment, held eleven hearings. The preparatory report for the 18 June 2005 hearing included the applicants’ names in the list of third parties to the proceedings.

On 17 August 2005 the Konya Assize Court ordered the joinder of the criminal proceedings against İ.K. with those pending against V.G., C.G. and Z.C.

On 31 January 2006 the Assize Court decided to separate the proceedings against the accused Z.C. and C.G. untile they were arrested.

On 11 April 2006 the Konya Assize Court sentenced V.G. and İ.K. to eighteen years and nine months’ imprisonment and to a fine of TRY 250. Mr Çakır, Mrs Yüce (Ergüden), Mrs Akan, Mr Özel and Mr and Mrs Erdoğan were mentioned as third parties to the proceedings. Mr and Mrs Kılıç were mentioned as complainants. In its statement of reasons the Assize Court pointed out that the buildings in Çınarcık had been destroyed by the earthquake, but that it had transpired from the inspections carried out both during the preliminary investigation and during the proceedings that the buildings which had collapsed had been constructed in breach of numerous legal obligations. The Assize Court further emphasised the following: even though the stricken zone was classified as a level-one earthquake hazard area, the buildings had been constructed without any prior soil testing; the construction material used had been low-quality and the concrete had not been solid; the buildings erected had been destroyed under the impact of the earthquake; the accused had acted negligently, which had contributed to the destructive events; and there was a direct causal link between the destruction and the loss of life. The Assize Court further held that the provisions relating to the concurrence of offences were applicable to the case, that each building project implemented in accordance with a building permit had constituted an offence and that the instant case concerned five permits, namely allotment 1927, plot 1, allotment 1649, plot 3, and allotment 1648, plot 7 in Çamlık, and allotment 1258, plot 1 and allotment 1256, plot 5 in Kocadere. It was also noted that no proceedings concerning allotment 1257, plot 1 had been brought before the Assize Court. As regards the lists drawn up by the Governor of Çınarcık District and Kocadere Municipality, the Assize Court explained that eleven persons had lost their lives on allotment 1927, plot 1 (1st section), twenty-eight on allotment 1649, plot 3 (2nd section), seventy-six on allotment 1648, plot 7 (3rd section) and two on allotment 1256, plot 5 (blocks A and B). It pointed out that it had been impossible to establish whether any deaths had occurred on the other plots, but that it had been established that the dwellings on those plots had been inhabited, thus placing the inhabitants in mortal danger. The Assize Court also noted the following: the V.G. Arsa Ofisi company had been responsible for all the buildings constructed on those plots; at the material time V.G. and C.G. had been partners in that company and Z.C. had been involved in obtaining the permits for the buildings; even though permits had been issued for the buildings in question, none of them had been covered by an occupancy permit, such that the building company and the various partners held criminal responsibility for the events.

The accused appealed on points of law.

On 16 April 2006 the Court of Cassation adopted a decision to transmit the case to the public prosecutor with the Court of Cassation so that he could submit his opinion on that appeal. The cover page of the decision bore the inscription “Detainees – statute limitation period expiring soon”.

In a memorial of 5 February 2007 Mr Çakır asked the Court of Cassation to confirm the first-instance conviction, under urgent procedure, on the ground that the offence would shortly be statute-barred.

On 6 February 2007 the Court of Cassation confirmed V.G.’s conviction. It also partly upheld İ.K.’s conviction, invalidating it as regards İ.K.’s responsibility for the destruction that had taken place on allotment 1258, plot no. 1, on the ground that it was unlawful to convict that accused person without having regard to the lack of evidence regarding his status as a technical officer or as a partner in the company responsible for erecting the building in question.

On 20 February 2007 the Konya Assize Court adopted two decisions discontinuing the criminal proceedings against D.B. and C.G. on the grounds that they had become statute-barred. The proceedings against Z.C. were also terminated, on an unknown date, on the same grounds.

On 15 March 2007 the Konya Assize Court, to which the case had been referred, discontinued the criminal proceedings against İ.K. as regards his responsibility for the destruction that had taken place on allotment 1258, plot 1, on the grounds that they had become statute-barred. The applicants’ names were included as third parties in the decision.

On 8 June 2007 the public prosecutor with the Court of Cassation, examining an appeal lodged by V.G. and İ.K. against the judgment of 6 February 2007, held that that appeal had been lodged unnecessarily.

Previously, on 7 May 1997, the Governor of Yalova had stated that the Mayor and the Head of Technical Services of Çınarcık should be prosecuted under Articles 230 and 240 of the Penal Code for failing in their duties and abusing their authority. The Governor accused them, in particular, of having, between 1995 and 1996, altered the urban planning schemes and turned a blind eye to the erection of illegal buildings, and of having failed to demolish the latter and to impose the relevant fines.

On 18 March 1999 the Council of State, having been applied to by the accused persons, transmitted the case file to the Yalova Criminal Court with a view to prosecuting the offence under Article 240 of the Penal Code.

On 28 February 2001, in the framework of the proceedings thus instigated, the Yalova Criminal Court found the accused guilty as charged. It was satisfied that the Mayor had authorised, under a decision taken by the Municipal Council on 13 October 1995, alterations to the urban planning schemes in a manner contrary to normal procedure – which action falls foul of Article 230 of the Penal Code – but that in view of the nature of the offence and the penalty incurred the imposition of a final penalty should be suspended, pursuant to section 1 [4] Law No. 4616 concerning release on parole and stay of proceedings and penalties for offences committed before 24 April 1999. The Criminal Court considered the 1997 adoption by the Municipal Council of a decision setting aside the aforementioned 13 October 1995 decision before it could be enforced as a mitigating circumstance: it changed the penalties imposed on the Mayor to six months’ imprisonment, under Article 240/2 of the Penal Code, and a TRL 300,000 fine. In view of the Mayor’s behaviour during the proceedings, those penalties were reduced to five months’ imprisonment and a fine of TRL 250,000. The Mayor was also found guilty of having abused his authority by once again altering the planning schemes in breach of procedure, under a Municipal Council decision of 14 February 1996, and he was therefore sentenced to one year’s imprisonment pursuant to Article 240 of the Penal Code and fined TRL 300,000, which penalties were then reduced to ten months’ imprisonment and a fine of TRL 250,000. He was also found guilty of having failed to enforce the fines imposed pursuant to Article 42 of Law No. 3194, as ordered by the Municipal Council on 22 May 1996. Furthermore, he was sentenced to one year’s imprisonment and fined TRL 420,000 for having failed to ensure the destruction of the unlawful worksites, which penalties were then reduced to ten months’ imprisonment and a fine of TRL 350,000.

The court also found the two accused guilty of having failed to halt the works performed in a manner inconsistent with the corresponding building permits, of having failed to take action to ensure the demolition of the unlawfully erected constructions and of having abused their authority. Each of the accused was consequently sentenced to one year’s imprisonment and fined TRL 300,000, subsequently reduced to ten months’ imprisonment and a fine of TRL 250,000.

In all, the Mayor of Çınarcık was sentenced to thirty-given months’ imprisonment and fined TRL 1,100,000, and the Head of Technical Services was sentenced to ten months’ imprisonment and fined TRL 250,000, which penalties were suspended.

On 5 May 2003 the Court of Cassation upheld that judgment.

On 4 May 2000 the Interior Ministry adopted a decision authorising the instigation of a criminal investigation under Article 230 of the Penal Code against the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and an official working in Technical Services, the last two having admitted that they had at no stage inspected the worksite after the laying of the foundations of the buildings in Çamlık, allotment 1927/151, plot 1, block E, allotment 1649/15-1, plot 3, blocks C and D, and allotment 1648/15-1, plot 7, blocks A, C, D and E, and the buildings in Kocadere, allotment 1256/3-2, plot 5, block D, allotment 1257/3-2, plot 1, block D and allotment 1258/3-2, plot 1, block D.

On 14 July 2000 Mrs Akan and Mr Özel applied to the Interior Ministry’s Inspection Committee for identification of the officials who had failed in their duties of inspection and supervision of the impugned buildings. Relying on the conclusions of the expert report of 13 October 1999 (see paragraph 23 above), they also requested a prosecution order against them. They submitted that their aim was to shed light on the whole chain of responsibilities, emphasising that the Mayor of Çınarcık, the Municipal Council and the technical and administrative staff responsible for inspection and supervision should also be prosecuted and placed on trial pursuant to section 102 of the Local Authorities Act (Law No. 1580). The two applicants considered that the municipality had turned a blind eye to the construction of buildings that fell short of the legal requirements. They also reiterated that the construction area in question had been classified as a “major earthquake hazard zone”, and complained that the municipality had authorised excessively high buildings on unstable ground. Finally, it was necessary to establish the responsibility of the Büyükşehir municipality on the ground that the area at issue had been part of that municipality at the time of the construction of the buildings and the submission of the architectural plans.

On 4 October 2000 the Second Division of the Council of State, examining an appeal lodged by the individuals concerned by the authorisation of criminal investigation issued by the Interior Ministry (see paragraph 87 above) and acting under Section 9 of Law No. 4483 (see Relevant domestic law, paragraph 133 below), lifted the criminal investigation authorisation issued by the Interior Ministry. The Council of State held that responsibility should be attributed to the specialists who had planned the building project, emphasising that many of the buildings destroyed on 17 August 1999 had not been covered by occupancy permits.

On 6 July 2001 the two aforementioned applicants applied to the Directorate General of Local Authorities of the Interior Ministry. On the basis of new evidence they reiterated their application for the prosecution of the officials in question. They submitted that, in the light of the new evidence in question, those officials could not be charged with mere negligence, and that their actions had amounted to abuse of authority.

On 10 September 2001 a review report was drawn up as authorised by the Interior Ministry on 15 August 2001, geared to ascertaining whether the failure to react to and verify the addition of extra storeys to several buildings – those located in Çamlık, allotment 1927/151, plot 1, block E; allotment 1649/15-1, plot 3, blocks C and D; and allotment 1648/151, plot 7, blocks A, C, D and E; and in Kocadere, allotment 1257/32, plot 1, block D – which had been effected in breach of the corresponding building permits, had amounted to a breach of professional duties by the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and a member of the technical services staff. The report concluded that there had been no need to prosecute the actions in question as they had been in conformity with usual procedure; consequently, no proceedings were brought against the aforementioned persons.

On 5 November 2001 Mrs Akan and Mr Özel once again applied to the Directorate of Local Authorities of the Interior Ministry for information on the action taken on their various complaints, pointing out that their requests for the prosecution of the officials had been unsuccessful and that no preliminary inquiry had yet been launched into the facts of which they had complained.

On 25 January 2002 a further review report was prepared as authorised by the Interior Ministry on 2 January 2002. That report found that there had been no need to take action against the officials in question for having authorised six-storey buildings.

On 4 February 2002 the above-mentioned Directorate replied to the application of 5 November 2001 (see paragraph 92 above). It first of all reiterated that the decision taken by the Interior Ministry authorising an investigation had been cancelled by decision of the Council of State of 4 October 2000. It went on to explain that in reply, in particular, to the application of 6 July 2001 (see paragraph 90 above), a preliminary examination had been conducted as authorised by the Interior Ministry on 15 August 2001, concluding that the issue at stake had already been decided, that the Council of State had cancelled the authorisation of investigation and that there was therefore no need for action against the individuals in question. Finally, it pointed out that, having regard to the applicants’ new allegations, a further authorisation of examination had been adopted on 2 January 2002 (see paragraph 93 above).

On 20 August 2002, relying on section 53 of the Administrative Procedure Act (Law No. 2577) and pointing to the existence of new evidence, the applicants applied to the Council of State to set aside the decision of 4 October 2000 (see paragraph 89 above) and to reopen proceedings.

On 18 September 2002 the Second Division of the Council of State dismissed that application, without consideration of the merits, on the grounds that no appeal lay from the contested decision, referring in that regard to sections 3 (h) and 9 of Law No. 4483 (see Relevant domestic law, paragraph 133 below).

On 20 November 2002, the applicants once again applied to the Council of State, submitting that they had not appealed against the decision of 4 October 2000 cancelling the authorisation of a criminal investigation but had applied for the reopening of proceedings pursuant to the Administrative Procedure Act (Law No. 2577), which was a different remedy. They reiterated their request to that effect.

On 14 January 2003 the Council of State dismissed that request, having noted that the proceedings in question had been conducted pursuant to Law No. 4483, which did not provide for reopening proceedings.

On 8 April 2004, examining an appeal lodged by Mrs Akan and Mr Özel against the 25 January 2002 report (see paragraph 93 above), the Second Division of the Council of State dismissed that appeal, without considering the merits, on the grounds that it concerned a decision from which no appeal lay.

On 25 February 2004 Mrs Akan and Mr Özel applied to the Yalova Provincial Human Rights Committee (“the Yalova Committee”). They submitted that the transfer of the criminal proceedings from the scene of the earthquake (Yalova) to Konya was in breach of the “natural judge” principle and infringed the victims’ right of appeal. They also complained of shortcomings in the assessment of the applications for the prosecution of the officials involved in the case.

On 6 April 2004 the Yalova Committee noted that the Commission responsible for the investigation and appraisal of human rights violations had prepared a rapport on the impugned facts concluding that there had been compelling reasons for changing the trial venue, as provided for in Article 14 of the Code of Criminal Procedure, and had not breached any human rights. Similarly, according to the findings of the report, the cancellation by the Council of State of the authorisation of investigation against the official whose responsibility had been engaged and the refusal to reopen the proceedings had not been contrary to human rights. Furthermore, the Yalova Committee pointed out that according to the same report, the complainants could have lodged an application with the European Court of Human Rights.

The Yalova Committee also noted that a member of the Commission responsible for the investigation and appraisal of human rights violations had set out the following additional observations:

“1. The increase in the number of storeys without the authorisation of the Municipal Council and the amendments to the architectural plans, as well as the failure to comply with the architectural plans concerning the ‘high-risk’ nature of the zone, amount to an infringement of the right to life;

The transfer, on security grounds, of the case to Konya rather than to a province closer to Yalova violated the victims’ right to a judge and their right of appeal. The Ministry of Justice has to provide financial assistance to the complainants so that they can follow the proceedings ...

The following constitute human rights violations: the inability, following the cancellation by the Council of State of the authorisation of investigation under Law No. 4483, to secure, [on the basis of] the new evidence submitted, the re-examination of the impugned facts [and] and the reopening of the proceedings... [The same applies to] the lack of a right of appeal for the complainants following the cancellation of the authorisation of prosecution of the officials.”

On 29 April 2004 the Office of the Governor of Yalova wrote to counsel for the applicants to inform her of that decision, transmitting a copy thereof.

On an unknown date Mrs Akan and Mr Özel had lodged with the Bursa Administrative Court an action for damages against the Interior Ministry, the Mayor of Çınarcık, the Housing Ministry and the Mayor of Büyükşehir (Istanbul), seeking compensation for the pecuniary and nonpecuniary damage which they had sustained. They had submitted that the administrative authorities charged in the proceedings had authorised building in major earthquake hazard zones, failing to use appropriate construction techniques, and that they had issued building and occupancy permits without adequate controls, thus committing a breach of their administrative duty.

On 30 October 2000 the Bursa Administrative Court dismissed that action as having been brought out of time, stating that the applicants should have brought their action within sixty days from the preparation of the expert report of 13 October 1999 (see paragraph 23 above), when they had been apprised of the alleged defects.

On 4 March 2003 the Bursa Regional Administrative Court dismissed an appeal against the latter decision and upheld the first-instance decision.

On 2 August 2004 Mr Çakır submitted a claim to the Ministry of Justice for the reimbursement and defrayal of his travel expenses to and from Konya in order to follow and take part in the criminal proceedings.

On 31 August 2004 the Ministry of Justice rejected that claim.

On 16 May 2006 the Ankara Administrative Court, to which the applicant had appealed against that decision, held that the decision to transfer the Yalova case to Konya had been a judicial rather than an administrative decision and that it accordingly could not engage the responsibility of the administrative authorities.

On 27 September 1999 Mrs Akan and Mr Özel had lodged with the Yalova Regional Court (“YRC”) an action for damages against the V.G. partnership, V.G. himself, İ.K., Z.C. and the Çınarcık municipality.

During the hearings held between 29 September 2004 and 17 September 2007, the YRC ordered the adjournment of the case until the conclusion of the criminal proceedings which were pending before the Konya Assize Court at the time.

On 17 September 2007 the YRC observed that the Konya Assize Court had convicted V.G. and İ.K. of five offences, one of which related to the collapse of three blocks on allotment 1256, and that that conviction had become final, having been adopted in the light of an expert report prepared by Istanbul Technical University on 12 October 2000 establishing the accused’s responsibility. That expert report had been added to the case file, and the YRC commissioned a further expert report in order to establish the pecuniary damage sustained by the complainants as a result of the loss of their apartment.

On 19 November 2007 an expert estimated the pecuniary damage sustained at TRY 5,015.

At the hearing on 14 January 2008 the complainants contested the conclusions of that expert opinion.

On 2 December 2008 the YRC, sitting as a consumer court, rejected the claims for compensation brought against V.G. and the Mayor of Çınarcık respectively on grounds of absence of evidence and lack of jurisdiction. It further held that the complainants’ claim for the moveable property lost should be considered as having been abandoned during the course of proceedings. Finally, the YRC partly acceded to the request for compensation by ordering the V.G. and Z.C. partnership to pay the applicants TRY 2,091.43 jointly in respect of pecuniary damage and TRY 2,000 each in respect of non-pecuniary damage.

On 13 March 2009 Mrs Akan and Mr Özel appealed against that judgment on points of law. In their memorial before the Court of Cassation they submitted that V.G.’s responsibility had been established by the Konya Assize Court and that, while civil courts were not bound by the conclusions of criminal courts, that did not apply to cases where the facts had established beyond doubt. They complained that the YRC had decided the case as a consumer court, even though it had involved a purely civil action. Finally, they submitted that the amounts awarded in compensation had been unsatisfactory, so that the YRC’s decision had been incompatible with Articles 2 and 13 of the Convention and had, moreover, infringed their property rights.

On 28 February 2010 the Court of Cassation set aside the YRC’s judgment.

On 28 June 2010 an expert report was drawn up, estimating the pecuniary damage sustained by the applicants, on the basis of the value of the apartment that had been destroyed during the earthquake, at TRY 2.750.

On 23 November 2010, the YRC, to which the case had been referred back by the Court of Cassation, again rejected the compensation claim against V.G. for lack of evidence, holding that the latter had been involved in neither the construction nor the sale of the building in question. The YRC also dismissed the compensation claim against the municipality, declining jurisdiction in favour of the administrative courts. It noted that the claim against İ.K. had been abandoned. Drawing on Article 409 of the Code of Civil Procedure, the YRC considered that the claim relating to moveable property should be deemed not to have been lodged. Lastly, it ordered the V.G. and Z.C. partnership to pay, jointly and severally, TRY 3,600 in respect of the pecuniary damage sustained, and a sum of TRY 2,000 to each claimant in respect of non-pecuniary damage.

On 15 November 2011 the Court of Cassation upheld that judgment.

On 11 November 1999 Mr Çakır and his wife had brought before the YRC an action for damages against the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm, the V.G. Arsa Ofisi partnership, V.G. and İ.K. They claimed TRL 15,000 each in respect of pecuniary damage, TRL 500,000 in respect of non-pecuniary damage and a further sum to be calculated in compensation for loss of support.

On 29 December 2008 the YRC stated that it was satisfied that the property developer responsible for the building in the ruins of which the applicant’s son had died was the V.G. Arsa Ofisi partnership and that the architectural blueprint had been prepared by İ.K., who had also acted as scientific officer for the project. Furthermore, in the light of the expert report prepared on 12 October 2000 at the request of the Konya Assize Court, the public authorities which had issued the permit had been responsible in a ratio of 2/8 and the persons in charge of construction had been responsible in a ratio of 6/8. The YRC considered that the V.G. Arsa Ofisi partnership and İ.K. had therefore been responsible in a ratio of 6/8.

The YRC dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It allowed in part the applicant’s and his wife’s compensation claims. The V.G. Arsa Ofisi partnership was accordingly ordered to pay the applicant TRY 1,170 in respect of the moveable property which they had lost, TRY 5,317.40 in respect of loss of financial support and TRY 4,500 in respect of nonpecuniary damage.

On 18 November 2009 the Court of Cassation set aside that judgment on the ground that the court which had jurisdiction to hear and determine the case had been the Consumer Court.

By judgment of 1 April 2010, the YRC, to which the case had been referred back, sitting as a consumer court, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It also dismissed the claim against İ.K. on the ground that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,014 in respect of the moveable property which he had lost, TRY 4,607.85 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage.

On 9 March 2011 the Court of Cassation set aside that judgment.

On 13 November 2011 the Court of Cassation dismissed an application for rectification of its judgment.

On 29 December 2011 the YRC, to which the case had been referred back, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the ground that they could not have been involved in the proceedings. It likewise dismissed the claim against İ.K. owing to the fact that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,560 in respect of the moveable property which he had lost, TRY 7,089 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage.

On 16 February 2000 Mrs Yüce (Ergüden) and three members of her family had brought compensation proceedings before the YRC in respect of the damage suffered owing to the deaths of their parents, claiming TRL 1,000,000,000 in respect of non-pecuniary damage and TRL 9,000,000,000 in respect of pecuniary damage. The action for damages was directed against the V.G. Arsa Ofisi partnership.

On 26 December 2007 the YRC, hearing and determining as a consumer court, allowed in part the claim concerning the pecuniary damage suffered, awarding a sum of TRY 3,092.93 to be shared among the different complainants, in accordance with their respective places in their parents’ succession. The YRC also awarded a sum of TRY 1,000 in respect of the non-pecuniary damage caused by the death of the claimants’ mother and TRY 1,000 in respect of the non-pecuniary damage caused by their father’s death.

On 28 March 2008 the respondent party appealed on points of law.

On 20 November 2008 the Court of Cassation dismissed that appeal under a judgment which became final on 27 January 2009.