Natural disasters
II. RELEVANT DOMESTIC LAW AND PRACTICE 132. Pursuant to section 14 of the Criminal Proceedings Act (Law No. 1412) of 4 April 1929, which was in force at the material time [8], competent judges or courts which, for legal or material reasons, were unable to exercise their territorial jurisdiction or considered that continuation of proceedings under its jurisdiction might be dangerous in terms of guaranteeing the prosecution of the case, could decide to transfer the case to another court of the same level. It was incumbent on the Ministry of Justice to request the transfer of the case for reasons of guaranteeing its prosecution. 133. The Prosecution of Officials and other Civil Servants Act ‘ Law No. 4483 ), enacted on 2 December 1999, states that officials may only be tried for acts committed during the exercise of their duties with the authorisation of the relevant administrative authority. An appeal lies with decisions to grant or refuse authorisations of investigation. Section 3 ( h) of that Act lays down that the Minister of the Interior is responsible for initiating an investigation against Mayors of cities and towns and members of their municipal councils and the Provincial Council. Section 9 of the same Act provides that the Second Division of the Council of State is responsible for examining, in particular, appeals lodged against decisions taken under section 3 ( h) of the Act, and that decisions taken at appeal level are final. 134. Section 32 of the Urban Planning Act (Law No. 3194 ) of 3 May 1985, published in the Official Gazette on 9 May 1985, which was in force at the material time provided as follows : “ Buildings constructed without permits or contrary to the permit and the appendices thereto Section 32. Pursuant to the provisions of this Act, where, except in the case of buildings which can be erected without a permit, ... it is noted that a building has been commenced without a permit or has been constructed contrary to the permit and the appendices thereto, the state of the construction must be assessed ... by the municipality or by the Office of the Governor. [ Seals must be affixed to the ] building and the works [ must be ] immediately halted. The stoppage of works shall be deemed notified to the owner of the building by the posting of the official record of the stoppage decision on the building site. A copy of that notification must be submitted to the muhtar. As of the date of notification, and within a month at the latest, the building owner shall apply to the municipality or to the Office of the Governor for the lifting of the seals, having either obtained a permit or brought his building into line with the existing permit. In the case of a building constructed contrary to the permit issued, where it is noted, after inspection, that that non-compliance has been [corrected ] or that a permit has been obtained and the construction complies with that permit, the seals shall be lifted by the municipality or by the Office of the Governor and building works shall be allowed to continue. ” Section 42 of that Act laid down the administrative penalties applicable to buildings constructed contrary to the provisions of the Act. 135. Law No. 7269 of 15 May 1959 on preventive and relief measures to be adopted regarding the effects of disasters on the life of the population, published in the Official Gazette on 25 May 1959, sets out the preventive and relief measures to be adopted in deal with natural disasters. 136. The adopted on 2 September 1997 and amended on 2 July 1998 set out, in particular, the technical criteria for buildings constructed in disaster areas. On 6 March 2007 new Regulations on buildings to be erected in disaster areas were published in the Official Gazette. 137. On 27 August 1999 the Grand National Assembly of Turkey decided to set up a Commission of Inquiry to consider all the measures taken before, during and after the earthquake. On 23 December 1999 that Commission presented its report, the relevant sections of which read as follows : “ VI. Appraisal : ... It was noted that despite the setting up of crisis units, which began operations after the earthquake, the relief and assistance committees and the civil defence officers had not been properly organised and that there had been operational delays. After the 17 August earthquake our company noted that the provision of assistance had become chaotic because of poor preparation and deficient organisation. Whereas it is for the public authorities to take action in situations of disaster liable to affect the lives of the population, those authorities were basically overwhelmed. The reasons for their powerlessness was, no doubt, the size of the area hit by the earthquake, the breakdown in communications, the power cuts and the inaccessibility of infrastructures. That being the case, there were delays in practice because the officials responsible for these provinces classified as major earthquake hazard areas had no plans setting out the measures to be taken in the event of this type of disaster or describing the roles and responsibilities of each part in the event of an earthquake, or else because they had never envisaged an earthquake ever happening. However, in view of the critical situation in the region and the risk of a worst-case scenario they ought to have been prepared [ been ] in a position to take effective action ... Although the officials leading the crisis units carried out their work determinedly and unstintingly, it was nonetheless noted that they were not prepared for a natural disaster, had no emergency action plans or programmes, and that even where they had such plans and/or programmes, they had been unable to implement them owing to the appalling impact of the disaster. ... Another authority [ which ] had failed to take effective and adequate action during the relief operations was the Civil Defence Department ... The very small number of civil defence relief teams ... totalling approximately 110 persons literally vanished amidst the 13, 600 buildings which collapsed on 17 August. That meant that very many persons who could have been dug out of the rubble remained there and died. If there had been civil relief available during the rescue operations to direct and supervise the untrained, unexperienced volunteers, it is certain that [ more of ] our fellow- citizens would still be alive today. The municipalities are responsible for regulating urban development in the provinces and districts. It has been noted that these major responsibilities devolved to the municipalities under the decentralisation process have been used ... to political ends... The local leaders and municipalities have abused the legal rights conferred upon them and turned their towns and cities into concrete jungles. ... ” THE LAW 138. Having regard to the similarity of the applications in terms of the facts and the complaints, the Court decides to join them. I. THE PURPOSE OF THE APPLICATIONS AND THE APPLICANT PARTIES A. The purpose of the applications 139. The Court notes that in their application forms that applicants submit that the criminal proceedings before the Konya Assize Court were the largest to be brought in the wake of the earthquake, in particular in terms of the number of victims concerned by the proceedings. The applicants submitted that the proceedings, which related to a serious infringement of the right to life, raised the issues not only of major negligence on the part of the property developer and his partners, but also of major negligence on the part of the authorities, but that despite all their efforts not all those responsible had been prosecuted. They further stated that the area where the earthquake had occurred had, many years previously, been declared a disaster zone, which meant that any buildings constructed there were subject to special regulations. Flouting those regulations and the requirements of the urban development and architectural plans, municipal the authorities had issued permits for buildings of five storeys and more, which were then erected illegally. Whereas those building should have been constructed in conformity with the specific features of the zone ( closely -spaced iron brackets and two storeys underground ), that had not been the case in the buildings in which the applicants ’ relatives had lost their lives. Moreover, they complained that the municipal authorities had failed to conduct the requisite inspections to check the conformity of the buildings with the relevant standards or to prevent their construction, and considered that those shortcomings amounted to gross negligence which had contributed to causing the deaths of their relatives. 140. The applicants also complained of serious negligence on the part of the authorities owing to shortcomings in the organisation of rescue operations after the earthquake and the fact that the Office of the Governor had failed to draw up a “ disaster plan ”. In particular, the search and rescue operations for people trapped in the rubble had not commenced until several hours after the disaster, as it had proved impossible to draw up lists des of the dead and injured and to transport the injured persons to hospital. The applicants considered that the fact that the authorities had not been prepared for coping with natural disasters had increased the death count. 141. Furthermore, relying on Article 2 of the Convention, the applicants submitted that the deaths of their relatives during the earthquake of 17 August 1999 amounted to a violation of the right to life. While acknowledging that the earthquake had been a natural disaster, they complained that they had been unable to secure the prosecution of all the individuals whom they held responsible. They alleged that the fact of amending the urban development plans without considering the location of the building sites within a natural disaster zone had infringed their relatives ’ right to life. 142. Drawing on Article 6 of the Convention, the applicants also complained of unfairness in the criminal proceedings, and in particular of an infringement of the “natural judge” principle owing to the transfer of the proceedings from Yalova to Konya – a ten-hour drive away, according to the applicants – and the difficulties which that transfer caused them in following the proceedings. In that regard they complained of an infringement of their right of judicial appeal. They also complained of the excessive length of the criminal proceedings. 143. Relying on Article 13 of the Convention, the applicants further complained of their inability to obtain the prosecution of the officials involved despite the fact that the latter ’ s responsibility had been established by expert opinion. They also complained that they had not benefited from an effective remedy enabling them to secure compensation for the damage sustained before both the administrative and the civil courts. 144. Lastly, the applicants relied on Article 1 of Protocol No. 1 to complain of the loss of their housing and that of their deceased relatives. 145. The Court reiterates that it is master of the characterisation to be given in law to the facts of a case and is not bound by the approach taken by the parties to the case. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). In the present case the Court considers that regard should be had to all the facts complained of by the applicants in terms of the infringement of their relatives ’ right to life, under the substantive head of Article 2 of the Convention. It further holds that the facts complained of by the applicants under Articles 6 and 13 of the Convention as regards the course of the criminal proceedings and of their inability to secure the prosecution of the officials should also be examined under the procedural head of Article 2 of the Convention. As regards the applicants ’ complaints of the lack of fairness in the proceedings, the lack of an effective remedy enabling them to secure compensation for the violation of their property rights, they should be examined under the articles called in aid, that is to say Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, respectively. B. The applicants in the present case 146. The Court notes that in Mrs Akan ’ s observations submitted after communication of the case to the Government, her lawyer mentioned that the latter was acting on her own and on her daughter ’ s behalf, without giving further details. 147. The Court observes that Mrs Akan ’ s application form did not mention her daughter ’ s applicant status. Therefore, having regard to the wording of the application and to the manner in which and the stage when that fact was brought to its attention, the Court holds that Mrs Akan must be considered as having lodged her application solely on her own behalf. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. The submissions of the parties 1. The Government ’ s submissions 148. The Government submitted first of all that the applicants had failed to exhaust the available domestic remedies, given that they had neither raised in substance the complaints which they put forward in their applications nor adduced a violation of the Convention. 149. Furthermore, the Government submitted, under Article 125 of the Constitution, that the applicants had had the possibility of engaging the authorities ’ objective responsibility based on the theory of social risk – under which remedy, according to the Government, they could have obtained compensation. The applicants could also have brought compensation proceedings against other private individuals and authorities such as the builder of the buildings in question or the engineer responsible for their construction, which they had refrained from doing. 150. Finally, in support of their submissions on the merits of the complaints under Article 13, the Government argued that the persons responsible for the construction of the buildings which had collapsed had been convicted. They submitted that under Article 34 of the Convention, if an individual had received redress for his complaint, he could no longer claim to be a victim of a violation of the Convention. Even though the applicants had not secured the decisions they had expected, it should be considered that they had been afforded redress for their complaint. 2. The applicants ’ submissions 151. The applicants refuted the Government ’ s submissions. Mr and Mrs Kılıç, Mr and Mrs Erdoğan and Mrs Yüce (Ergüden) submitted that they had exhausted the domestic remedies. Furthermore, although some of the third parties to the criminal proceedings had brought actions against the officials in question before the administrative courts, the latter had dismissed their compensation claims on grounds which were not prescribed by law. Similarly, the actions for damages brought by some complainants before the civil courts had continued for many years without a successful conclusion. In that regard, the aforementioned applicants submitted that the YRC premises had been damaged during the earthquake, that it had been moved several times and that the judges responsible for the case had also been changed several times, with the result that the actions brought by several victims were still ongoing. The applicants had given up any hope of obtaining any kind of compensation by that means. They submitted that in view of the decisions given and the time that had since elapsed the compensation proceedings relating to the earthquake were no longer effective. 152. In response to a request from the Court to parties for further information, counsel for Mr and Mrs Erdoğan and Mr and Mrs Kılıç had informed the Court that owing to the ineffectiveness of the civil action for damages and the cost of the proceedings, his clients had decided to discontinue that remedy. He submitted that in any case there were no effective remedies as regards compensation. 153. Mr Çakır, Mr Özel and Mrs Akan refuted the Government ’ s submissions as regards the existence of an effective compensation remedy. At the time of submission of their observations they had argued that the compensation proceedings had been going on for eleven years, that it was accordingly impossible to secure an effective result and that the amount which would have been awarded would in any case have been unsatisfactory. They also submitted that when the case had been pending before the Court of Cassation, the first- instance court had held that V.G. had not been required under criminal law to compensate the complainants. They added that even if they had been awarded any amount in compensation the impugned company had not had the wherewithal to pay it, such that there was no effective remedy enabling them to obtain compensation. Citing the cases of Mahmut Aslan v. Turkey (no. 74507/01, 2 October 2007) and Ali Kemal Uğur and Others v. Turkey (no. 8782/02, 3 March 2009 ), they complained of the lack of effective remedies enabling them to complain of the length of proceedings. 154. Mr Özel and Mrs Akan further submitted, as regards the administrative compensation proceedings, that in the instant case the administrative courts had applied the deadline for administrative decisions rather than the deadline set out in Article 13 of the Code of Administrative Procedure. They pointed out that those courts had not applied the one-year deadline – which they claimed was contrary to domestic case-law – which was why their claim had been rejected. The applicants considered that that rejection was contrary to domestic law and jurisprudence, and, moreover, had been geared to protecting the administrative authorities. B. The Court ’ s assessment 155. As a preliminary note, the Court considers it useful to emphasise that although the Government ’ s submissions as to the non- exhaustion of domestic remedies broadly related to the application as a whole, they specifically concern Article 2 of the Convention and should therefore be examined under that provision. 156. Similarly, having regard to the legal classification of the facts in the present case ( see paragraph 145 above ), the Court considers that the Government ’ s submissions to the effect that redress was afforded for the applicants ’ complaint under Article 13 of the Convention ( see paragraph 150 above ) come under the procedural head of Article 2 of the Convention and should be dealt with before the examination of the merits of the case. 1. The applicants ’ victim status 157. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status as a victim for the purposes of Article 34 of the Convention, unless the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress ( see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 [ extracts ] ). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application ( see Eckle, cited above, §§ 69 et seq. ). 158. In the instant case the Government relied on the criminal conviction of the developers responsible for the buildings which collapsed to argue that a remedy had been provided for the applicants ’ complaint. However, having regard to the nature of the procedural requirements of Article 2 and the fact that the developers ’ conviction cannot be construed as providing any kind of compensation, the Court rejects the Government ’ s submission in this regard. 2. Exhaustion of domestic remedies 159. The Court reiterates that the obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ( see Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014 ). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success ( ibid. , § 74). However, there is no obligation to have recourse to remedies which are inadequate or ineffective. Nevertheless, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress ( ibid. , §§ 73 ‑ 74). 160. Nonetheless, the Court has frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism ( see Ringeisen v. Austria, 16 July, § 89, Series A no. 13, and Vučković and Others, cited above, § 76). It has, moreover, accepted that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ( see Kurić and Others, cited above, § 286). 161. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII). 162. Furthermore, where an applicant has a choice between different possible remedies whose comparative effectiveness is not immediately obvious, the Court tends to construe the requirement to exhaust domestic remedies in the applicant ’ s favour ( see Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV, and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III). 163. As regards the burden of proof, it is incumbent on the Government pleading non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was indeed exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement ( see Vučković and Others, cited above, § 77). 164. In the instant case, in the first part of the preliminary objection raised by the Government, as regards, firstly, the applicants ’ complaint about the dilatoriness and inefficiency of the rescue operations immediately after the earthquake ( see paragraph 140 above ), the Court notes from the evidence available to it that the applicants did not specifically contact the national authorities to criticise and complain about the alleged shortcomings in the organisation and implementation of the emergency relief. Consequently, that complaint must be dismissed for non- exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. 165. Secondly, as regards the other complaints under Article 2 of the Convention, the Court notes from the case file that the applicants raised the complaints which were subsequently submitted to it on several occasions during various sets of proceedings before the domestic criminal, civil and administrative courts ( for details of the proceedings in question, see paragraphs 24-82, 88-99 and 104 ‑ 131). As regards their alleged failure to rely specifically on provisions of the Convention, the Court notes that the different types of proceedings brought and the memorials submitted to the domestic courts covered the very substance of the rights relied upon in the proceedings before it. Accordingly, it considers it should reject the Government ’ s objection to the effect that the applicants had failed to submit even the substance of their complaints to the domestic courts. 166. As to the second section of the Government ’ s objection that the applicants should have engaged the objective responsibility of the authorities before the domestic courts, the Court reiterates that it has previously found that under Article 125 of the Constitution, objective responsibility is engaged when it has been established that, in the specific circumstances of a given case, the State has failed in its obligation to preserve public order and security and/or to protect people ’ s lives and property, without the need to establish the existence of criminal negligence attributable to the public authorities (see, among other authorities, Kavak v. Turkey, no. 53489/99, § 32, 6 July 2006). The Court further emphasises that no compensation could be awarded under the remedy in question. The Court reiterates that where one remedy has been used, it is not necessary to exercise another remedy with virtually the same aim ( see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84, 24 January 2008). In the present case it notes from the case file and other information available to it that Mrs Akan and Mr Özel attempted to bring an action for damages before the administrative courts ( see paragraphs 104-106). Furthermore, they applied to the civil courts for compensation for the pecuniary and non ‑ pecuniary damage resulting from their relative ’ s death ( see paragraphs 110 ‑ 120). The Court notes that Mrs Yüce (Ergüden) and Mr Çakır also brought an action for damages ( see paragraphs 121 ‑ 131 above ). Therefore, it holds that those applicants cannot be criticised for not having also brought an action against the State before the administrative courts, which action could only have led to the award of damages. 167. As regards the other applicants, the Court reiterates that it is for the Government raising the non-exhaustion objection to convince the Court that the remedy was effective and available both in theory and in practice at the material time. It also reiterates that it must apply that rule with due regard to the context and also the applicant ’ s personal situation, and examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see Salman v. Turkey [GC], no. 21986/93, § 86, ECHR 2000 ‑ VII). In that respect, the insecurity and vulnerability of an applicant ’ s position should also be borne in mind ( see Menteş and Others v. Turkey, 28 November 1997, § 59 in fine, Reports 1997 ‑ VIII). In the present case, given the extent of the disaster which had given rise to the complaints and its tragic consequences for the applicants, the particular vulnerability in which they found themselves after the earthquake, and the fact that during the criminal proceedings they lodged memorials claiming civil damages in the framework of the latter ( see paragraphs 34, 38 and 63 above ), bringing the matter of the State ’ s responsibility to the attention of the authorities did not depend solely on the applicants ’ diligence ( see, mutatis mutandis, Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 112, ECHR 2008 [ extracts ] ). Furthermore, the Court can but note that the Government failed to submit any examples of cases where that remedy had been successfully used in a comparable situation. In view of the foregoing observations, it must also reject that section of the Government ’ s objection. 168. Lastly, as regards the final part of the Government ’ s objection to the effect that the applicants had failed to bring any civil action for damages against specified persons, the Court reiterates, as noted previously ( see paragraph 166 above ), that Mrs Akan, Mrs Yüce (Ergüden), Mr Özel and Mr Çakır applied to the civil courts for compensation for the pecuniary and non-pecuniary damage resulting from the deaths of their relatives. As regards the other applicants, that is to say Mr and Mrs Erdoğan and Mr and Mrs Kılıç, the Court observes that they submitted that they had waived recourse to that remedy owing to its ineffectiveness – relating to the length of the relevant proceedings – and high cost. Having regard to the circumstances of the case and the parties ’ s submissions, the Court considers that this section of the objection raises issues intimately linked to the merits of the complaints raised by by the applicants. It therefore decides to join it to the merits ( see paragraph 199 below ). III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 169. The applicants alleged a violation of Article 2 of the Convention, which provides: “ 1. Everyone ’ s right to life shall be protected by law ... ” A. As regards the applicability of Article 2 of the Convention 170. The Court reiterates that Article 2 of the Convention requires the State not only to refrain from intentionally causing deaths but also to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, but it also applies where the right to life is threatened by a natural disaster ( see Budayeva and Others, cited above, §§ 128-130). 171. In that respect, the Court pointed out, in connection with natural hazards, that the scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation, and clearly affirmed that those obligations applied in so far as the circumstances of a particular case pointed to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use (ibid. , § 137). Therefore, the applicability of Article 2 of the Convention and the State ’ s responsibility have been recognised in cases of natural disasters causing major loss of life. In the instant case, the applicants ’ complaints must be assessed under the substantive and procedural heads of Article 2 of the Convention. 172. The Court holds that the applicants ’ complaints require it to adjudicate first of all on the obligation to prevent disasters and protect populations from the effects of such events. The Court will then examine the applicants ’ allegation that not all the persons involved in the construction of the buildings in question had been prosecuted, and their complaint regarding the conduct of the criminal proceedings. B. Admissibility 1. Prevention of disasters and protection of the population from the effects of disasters 173. The Court observes that earthquakes are events over which States have no control, the prevention of which can only involve adopting measures geared to reducing their effects in order to keep their catastrophic impact to a minimum. In that respect, therefore, the prevention obligation comes down to adopting measures to reinforce the State ’ s capacity to deal with the unexpected and violent nature of such natural phenomena as earthquakes. 174. In that context, the Court considers that prevention includes appropriate spatial planning and controlled urban development. In the present case it notes from the case file that the national authorities were perfectly well aware of the earthquake risk in the affected region. The spatial planning documents for the regions therefore included the relevant information and the earthquake-hit area had been classified as a “ disaster zone ”. Furthermore, building permits in that area had been subject to special conditions, and consequently all buildings erected had to comply with specific building standards. The local authorities responsible for regulating land use by issuing building permits therefore had a frontline role in risk prevention and bore the primary responsibility for it. 175. Under the circumstances of the instant case, the Court observes that the earthquake had disastrous consequences in terms of loss of life owing to the collapse of buildings erected in breach of the safety and construction standards applicable to the area in question. It would seem to be established, in the light of the findings of the proceedings before the domestic authorities responsible for investigating the matter, that the local authorities which should have supervised and inspected those buildings had failed in their obligations to do so. 176. The Court notes that before the earthquake the Mayor of Çınarcık and the municipal Director of Technical Services had been prosecuted for having amended the urban planning schemes in breach of the requisite procedures and that they had been convicted of the corresponding offences ( see paragraphs 83-86 above ). Moreover, the responsibility of the public authorities for the collapse of the buildings in the earthquake zone had been acknowledged in various expert reports and by a Parliamentary Commission ( see paragraphs 45 and 137 above ). Yet the Interior Ministry decision to authorise an investigation of the public officials involved was set aside under a final decision of the Council of State on 4 October 2000. That fact was noted in the minutes of the hearing organised by the Assize Court on 11 April 2002, on which date it may be held that all the applicants could have been aware of it ( see paragraph 55 above ). Furthermore, the application submitted by Mrs Akan and Mr Özel to set aside the Council of State decision of 4 October 2000 and reopen the proceedings against the public officials involved was dismissed by the Council of State on 14 January 2003 ( see paragraph 96 above ). 177. Even supposing that that remedy might be taken into account under the procedural requirements of Article 2 of the Convention, it should be noted that the applications were lodged on 16, 22 and 25 April 2005, that is to say more than six months after the 4 October 2000 decision, more than six months after the Assize Court hearing of 11 April 2002, and more than six months, even, after the decision of 14 January 2003. Moreover, Mrs Akan and Mr Özel had clearly been informed of the possibility of applying to the Court in the 6 April 2004 decision of the Provincial Human Rights Committee, which they nonetheless also refrained from doing until 16 April 2005. 178. Although in its observations the Government did not submit any objection as to inadmissibility owing to non- compliance with the six - month time-limit, the Court reiterates that it has previously found that the six ‑ month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion ( see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012), even if the Government has not objected on that basis ( see Paçacı and Others v. Turkey, no. 3064/07, § 71, 8 November 2011). Accordingly, having regard to the aforementioned findings concerning the date on which the six- month time-limit began in respect of Mrs Akan and Mr Özel ( see paragraph 176 above, in fine ) and concerning the date on which the other applicants could be deemed to have been informed of the setting aside of the authorisation to investigate the public officials ( see paragraph 176 above ), the Court considers that that part of the complaint was submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 2. The conduct of the criminal proceedings 179. Noting that this part of the application is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other ground, the Court declares it admissible. C. Merits 180. Having regard to the findings set out above concerning the applicants ’ complaints vis-à-vis the obligation to prevent disasters, to protect populations from the effects of disasters and to provide immediate relief and implement emergency measures ( see paragraphs 164 and 178 above ), the Court must now adjudicate exclusively on the applicants ’ allegations regarding the conduct of the criminal proceedings, which come under the procedural head of Article 2 of the Convention. 1. The applicants ’ submissions a) Mr Çakır, Mr Özel and Mrs Akan ’ s submissions 181. The applicants submitted that the criminal proceedings conducted in the present case had not led to the conviction of all the persons whom they considered responsible in accordance with their respective responsibilities : they argued that the criminal justice system had been inoperative owing both to the inadequacy of legislation on natural disasters and to the implementation of the provisions on statutory limitation. Furthermore, contrary to the Government ’ s assertions, not all those persons had been prosecuted and convicted. In that connection, the applicants submitted that despite the existence of an arrest warrant against D.B. and the passing of many years since the material time, the latter had not been arrested and had not taken part in proceedings. They added that the same applied to C.G. and Z.C. Moreover, of the five persons prosecuted during the criminal proceedings four had benefited from a stay of prosecution, including a partial stay as regards İ.K. on the grounds of statutory limitation. 182. The applicants further submitted that the State ought to have punished the public officials responsible for the deaths of their relatives, explaining that the expert opinions had established the respective responsibilities but that the prosecutions had still not been authorised. b) Mr and Mrs Kılıç ’ s, Mr and Mrs Erdoğan ’ s and Mrs Yüce ’ s (Ergüden ’ s ) submissions 183. The applicants submitted that the State had failed in its duty to arrest and try in good time the individuals whom they considered responsible, enabling the latter to benefit from the provisions on statutory limitation. 184. Furthermore, the applicants considered that the failure to prosecute the public officials whose responsibility had been established under an expert opinion had infringed the right to an effective remedy. In that context they complained that the current legislation was such as to render impossible the prosecution of certain public officials, even though their responsibility had been established by experts. 2. The Government ’ s submissions 185. Citing the principles set out in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 91-92, ECHR 2004 ‑ XII) regarding the requisite judicial responses to allegations of violations of the right to life, the Government stated that in the present case the domestic authorities had conducted an in-depth investigation. Expert studies had been conducted and reports had been prepared, on which the parties had been able to submit their observations. Furthermore, the domestic courts had examined the requests to claim civil damages under the proceedings and assessed whether or not those civil claimants had actually been involved in the case. Finally, the courts had gathered and scrutinised the requisite evidence. 186. The Government considered that the present case was characterised by the promptness with which the authorities had instigated the investigation, to which fact they attached great importance. They pointed out that the record of the inspection of the site had been prepared on 24 and 25 August 1999, that V.G. had been heard on 6 September 1999 and that the indictment and the additional indictment had been drawn up on 16 September 1999 and 22 September 2000 respectively. They further submitted that no delay in the conduct of the criminal proceedings could be laid at the door of the domestic authorities and that the transfer of the case to Konya had not impeded the applicants ’ participation in the proceedings. They therefore submitted that there had been no violation of Article 2 of the Convention. 3. The Court ’ s assessment a) General principles 187. The Court reiterates that it should in no way be inferred that Article 2 of the Convention may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence ( see Öneryıldız, cited above, § 96) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence in and ensuring public adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts ( see Nencheva and Others v. Bulgaria, no. 48609/06, § 116, 18 June 2013). 188. The Court further emphasises that Article 2 requires the authorities to conduct an official investigation in the context of dangerous activities when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents ( see Öneryıldız, cited above, § 93). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002 ‑ II, and Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII). 189. The Court also reiterates that the principles developed in relation to judicial responses to incidents resulting from dangerous activities also lend themselves to application in the area of disaster relief. Where lives are lost as a result of events engaging the State ’ s responsibility for positive preventive action, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied to the extent that this is justified by the findings of the investigation ( see Budayeva, § 142). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue (ibid. , § 142). 190. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law ( see Öneryɪldɪz, citéd above, § 95, and Budayeva, citéd above, § 143). b) Application of the principles to the present case 191. The Court reiterates that the procedural obligation under Article 2 of the Convention is not dependent on whether the State is ultimately found to be responsible for the deaths in question ( see Šilih v. Slovenia [GC], no. 71463/01, § 156, 9 April 2009). The procedural obligation under Article 2 on conducting an effective investigation has evolved into a separate and autonomous duty (ibid. , § 159, and G.N. and Others v. Italy, no. 43134/05, § 83, 1 December 2009 and the cases cited therein ). 192. In the present case, the Court observes that criminal proceedings were commenced against the property developers responsible for the buildings which had collapsed and certain individuals directly involved in their construction. It also notes that the proceedings concerned the deaths of 195 persons. The cases were initially split up into different investigation files, and were then gradually joined and later separated again ( see paragraphs 46, 62, 73 and 74 above ). However, the various sets of proceedings at issue all originated in the same facts, that is to say the defects in the buildings which had collapsed, so that the Court considers that it must adjudicate on one single investigation, regardless of the joinder or severance of the various sets of proceedings over time. 193. The Court further observes that the applicants took part in the criminal proceedings in question and applied to intervene in them as third parties. These criminal proceedings against five accused, which began on 14 September 1999, ended on 15 December 2011, almost twelve years later, with the conviction of only two of the accused, one of whom was, moreover, granted the benefit of a partial stay of proceedings on grounds of statutory limitation ( see paragraphs 73 ‑ 79 above ). Two of the accused were untraceable for several of those twelve years ( see paragraph 62 above ), one of whom was D.B., who was in fact never brought before the criminal authorities, so that his involvement in the impugned acts was at no point assessed by the courts. Furthermore, the criminal proceedings against three of the accused were discontinued as statute-barred ( see paragraph 80 above ) before any responsibility on their part for the impugned acts could be established. 194. The Court reiterates that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also emphasises that the passing of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards, cited above, § 86). 195. While acknowledging that the undeniable complexity of the case owing to the number of victims involved, the Court notes that there were only five accused persons and that the expert reports pinpointing the defects and other factors leading to the collapse of the buildings in question, as well as the corresponding responsibilities, had been prepared very promptly, that is to say in August 1999 ( see paragraphs 20-21 above ) and October 2000 ( see paragraph 45 above ). It notes, however, that a further request for an expert study issued by the Assize Court on 3 May 2001 had not been met until 5 July 2004 ( see paragraph 65 above ), that is to say almost three years two months later. 196. Nevertheless, the importance of what was at stake in the investigation conducted in the present case in terms of identifying the responsibilities in issue, the circumstances under which the aforementioned buildings had been erected and the reasons for their collapse should have prompted the domestic authorities to address the matter rapidly in order to prevent any appearance of collusion in or tolerance of unlawful acts. 197. Even in the presence of obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law ( see Šilih, cited above, § 1 9 5 ). In the present case, the Court can only note that the length of the proceedings at issue breaches the requirement of a prompt examination of the case, without any unnecessary delays. The criminal proceedings were conducted in such a way that only two of the accused were finally declared responsible for the events, the other three having benefited from the statute of limitation. 198. Furthermore, the Court reiterates that it has already accepted, in the light of Article 2 of the Convention, that the failure to indict and prosecute persons holding public office owing to a refusal by the administrative authorities to authorise such action raised issues under Article 2 of the Convention (see, for example, Asiye Genç v. Turkey, no. 24109/07, § 83, 27 January 2015). In the present case, it notes the failure of the attempts by some of the applicants to ensure that the competent authorities ordered a criminal investigation of the public officials (see paragraphs 88-99 above). In this respect, the Court observes that in the absence of prior administrative authorisation, no such criminal investigation was instigated against the public officials whose shortcomings and failures in supervising and inspecting the buildings which collapsed – as noted under an expert study ( see paragraph 45 above ) and registered by the Minister of the Interior ( see paragraph 87 above ) – might otherwise have been established. 199. As regards the applicants ’ ability to bring an action for damages against the individuals who had been involved in the construction of the buildings which collapsed, the Court reiterates that the State ’ s obligation under Article 2 of the Convention will only be satisfied if the protection afforded by domestic law operates effectively in practice ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 53, ECHR 2002 ‑ I, and Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). In the instant case, however, the Court can only note that those applicants who sought to use the civil compensation remedies had to wait between eight and twelve years ( see paragraphs 110-131 above ) for the civil courts to deliver their judgments. The Court also emphasises the modesty of the amounts awarded to the applicants in question in respect of the non-pecuniary damage caused by the loss of their relatives, in the light of its own case-law in such matters. It therefore concludes that in the particular circumstances of the present case, the civil compensation remedy was not an effective legal remedy and accordingly rejects the Government ’ s preliminary objection in that respect. 200. In the light of the foregoing considerations, the Court finds a violation of Article 2 of the Convention under its procedural head. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 201. The applicants complained that the proceedings had been unfair and that they had not benefited from an effective remedy in order to obtain compensation for the damage sustained. They relied on Articles 6 and 13 of the Convention. Finally, the applicants considered that there had been a violation of Article 1 of Protocol No. 1 to the Convention. 202. The Government contested the applicants ’ allegations. 203. Having regard to its finding of a violation under Article 2 of the Convention ( see paragraph 200 above), the Court considers that it has examined the main legal issue arising in the present case. In the light of the overall facts of the case and the parties ’ submissions, it holds that there is no need to adjudicate separately on the admissibility or the merits of the other complaints under Articles 6 and 13 of the Convention or under Article 1 of Protocol No. 1 to the Convention ( see, for a similar approach, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 204. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages 205. Mr Özel claimed TRL 40,000 in respect of pecuniary damage and TRL 500,000 in respect of non-pecuniary damage resulting from the death of his mother. 206. Mrs Akan claimed TRL 40, 000 in respect of the pecuniary damage which she had sustained. She also claimed TRL 500, 000 in respect of the non-pecuniary damage resulting from her mother ’ s death, as well as the suffering, fear and trauma caused by the fact that her nine-year-old daughter had been buried in rubble for several hours. She further claimed TRL 23, 000 in respect of pecuniary damage for her and her lawyer ’ s travel and accommodation expenses incurred in order to follow the criminal proceedings, as well as TRL 5, 000 in respect of pecuniary damage for the costs incurred by her lawyer in following the proceedings in Ankara before the Interior Ministry and the Council of State. Furthermore, she claimed TRL 20,000 in respect of pecuniary damage corresponding to the value of the furniture which she stated was lost in her apartment during the earthquake. Finally, she claimed TRL 300, 000 in respect of non-pecuniary damage sustained by her daughter. 207. Mr Çakır claimed TRL 18, 000 in respect of travel expenses incurred in order to follow the criminal proceedings. He provided photocopies of train tickets as vouchers. He also claimed TRL 20,000 corresponding to the value of the property which had been destroyed in the apartment that he had lost. He had not been able, owing to the passing of time, to provide an exhaustive list of the property in question or any documents indicating its value. He further claimed a sum of US$ 90, 000 in respect of loss of earnings caused by his presence during the criminal proceedings. Mr Çakır also claimed TRL 750, 000 in respect of non ‑ pecuniary damage sustained on account of the death of his son and the anxiety which he had suffered until four days after the earthquake, when he had personally pulled his son out of the rubble of the building. He also submitted that he had been covered by rubble for some ten hours and had been very afraid, with the result that he now suffered from claustrophobia. Similarly, he stated that he suffered from feelings of anxiety and sadness related to the fact that his wife had been buried in the rubble for eight hours. He also pointed out that he had been greatly fatigued by the journeys which he had had to make in order to follow the proceedings, emphasising the length of the latter. 208. Mr and Mrs Kılıç claimed TRL 250, 000 each in respect of the non ‑ pecuniary damage caused by the death of their son and TRL 250,000 each in respect of the resultant loss of financial support. In respect of the pecuniary damage resulting from the journeys undertaken by their lawyer in order to following the proceedings, they also claimed TRL 18, 000 jointly in respect of the criminal proceedings in Konya and TRL 5, 000 jointly in respect of the administrative proceedings in Yalova. 209. Mr and Mrs Erdoğan claimed TRL 250, 000 jointly in respect of the non-pecuniary damage caused by the death of their son and TRL 250, 000 in respect of the resultant loss of financial support. In respect of the pecuniary damage corresponding to the journeys undertaken by their lawyer in order to follow the proceedings, they also claimed TRL 18, 000 jointly in for the criminal proceedings in Konya and TRL 5, 000 jointly for the administrative proceedings in Yalova. 210. Mrs Yüce (Ergüden) clamed TRL 500,000 in respect of the non ‑ pecuniary damage resulting from the loss of her parents, as well as TRL 500,000 for her personal suffering caused by the long hours which she had spent buried in the rubble, the fear which that had inspired, the cost of the psychological support which she had had to seek and the exhaustion of having had to travel in order to follow the proceedings. In respect of the pecuniary damage caused by her travel in order to follow the proceedings, she claimed TRL 36, 000 for the proceedings in Konya and TRL 5, 000 for those in Yalova. She also claimed TRL 120, 000 in respect of pecuniary damage corresponding to the value of her apartment and the furniture which she had lost during the earthquake, as well as TRL 30, 000 in respect of pecuniary damage corresponding to her share in the inheritance of her mother ’ s apartment and the furniture appertaining to the latter. 211. The Government contested those claims on the grounds that the applicants had not provided vouchers substantiating their claims in respect of the alleged pecuniary damage. They added that the applicants ’ claims in respect of non- pecuniary damage were unacceptable, submitting that compensation in respect of just satisfaction should not entail unjust enrichment. 212. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, it considers it appropriate to award, in respect of non ‑ pecuniary damage, 30, 000 euros (EUR) jointly to Mrs Akan and Mr Özel, EUR 30, 000 jointly to Mr and Mrs Kɪlɪç, EUR 30, 000 jointly to Mr and Mrs Erdoğan, and 30, 000 euros (EUR) to each of the other applicants, namely Mrs Yüce (Ergüden) and Mr Çakɪr. B. Costs and expenses 213. Mr Çakır claimed TRL 15, 000 in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25, 000 dollars in respect of lawyer ’ s fees incurred before the Court and the domestic courts. He also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer. He submitted that document as a voucher. 214. Mr and Mrs Kılıç claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 50,000 dollars jointly in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court. 215. Mr and Mrs Erdoğan claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25,000 dollars in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court. 216. Mrs Yüce (Ergüden) claimed TRL 15, 000 in respect of miscellaneous costs incurred during the domestic proceedings. She also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to her in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which she had concluded with her lawyer, a copy of which she submitted to the Court. 217. Mr Özel claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer [9]. 218. The Government contested those claims. They submitted that none of the applicants apart from Mr Çakır had submitted documents in support of their claims. 219. According to the case- law of the Court, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, in the absence of documents sufficiently substantiating their claims, the Court rejects the claims for costs and expenses lodged by Mr and Mrs Kılıç and Mr and Mrs Erdoğan [10]. On the other hand, having regard to the documents at its disposal and to its case ‑ law, the Court considers reasonable the sum of 4, 000 EUR for proceedings before it, and awards that amount to each of the applicants, namely Mr Çakır, Mrs Yüce (Ergüden) and Mr Özel [11]. C. Default interest 220. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 of the Convention under its procedural head, finding in particular that the Turkish authorities had not acted promptly in determining the responsibilities and circumstances of the collapse of the buildings which had caused the deaths. Indeed, the importance of the investigation should have made the authorities deal with it promptly in order to determine the responsibilities and the circumstances in which the buildings collapsed, and thus to avoid any appearance of tolerance of illegal acts or of collusion in such acts.