Individual Application

The Facts

A military unit that was practicing shooting in the area where the applicant was living collected the unexploded ammunition in the area and recorded the ammunition that could not be found.

After about two months, the applicant found a metal part in the area. The metal part exploded, and the applicant was injured and suffered a loss of limb. The Military Prosecutor’s Office launched an investigation, and the Gendarmerie issued a report upon examination of the incident scene. Another report received from the laboratory stated that the metal parts found might be “war ammunition”.

The Military Prosecutor’s Office filed a criminal case against two soldiers (accused) responsible for the unit practicing in the area, for the offence of misconduct on account of negligence and delay. While the proceedings were continuing, the applicant lodged an individual application alleging that the investigation into the incident was not completed within a reasonable time and that a criminal case was not brought against those responsible.

After the individual application, the applicant joined the proceedings against the accused before the military court as an intervening party. The military court convicted the accused for misconduct. The applicant did not appeal against this judgment. As the accused appealed against the judgment, the case is still pending before the Court of Cassation.

The Applicant’s Allegations

The applicant claimed that his right to life was violated on the ground that he sustained life-threatening injuries as a result of the explosion of the ammunition left in the area following the military exercise and that an effective criminal investigation was not conducted into the incident.

The Constitutional Court’s Assessment

Concerning the cases where the right to life safeguarded in Article 17 of the Constitution has not been violated intentionally, the positive obligation to establish an effective judicial system may be considered to have been fulfilled if civil, administrative and even disciplinary remedies are available to victims.

In the present case, the responsibility of the public authorities with respect to the incident was established by official investigation. Accordingly, there is no room left for ambiguity concerning the cause of the incident and the responsibility arising from the interference with the right to life.

The public officials considered to have responsibility in the incident were punished. The applicant did not appeal the sentence arguing that it was not severe enough or on any other grounds.

The Constitutional Court, having regard to the conditions under which the incident resulting in the applicant’s injury occurred, has concluded that in order for the State to fulfil its positive obligation to establish an effective judicial system, it did not have an obligation to conduct a criminal investigation that would necessarily result in the punishment of the public officials alleged to have personal responsibility such as negligence.

The Constitutional Court considers that the civil remedy for damages, which has not been exhausted in the present case, would ensure the effective judicial review and redress the alleged violation by compensating the pecuniary and non-pecuniary damages claimed by the applicant through individual application.

The authorities’ failure to act with reasonable speed to punish those responsible does not affect the effectiveness of the action for damages that would enable determining the responsibilities in the incident and providing of appropriate and sufficient redress for the damage.

It has been concluded that within the scope of its obligation to establish an effective judicial system, –in addition to the criminal investigation which left no ambiguity regarding the responsibilities in the incident– the State provided the applicant with an effective civil remedy with regard to the incident. However, the applicant did not make use of this remedy and directly lodged an application with the Constitutional Court.

Consequently, the Constitutional Court found inadmissible the allegation of violation of the right to life for non-exhaustion of legal remedies.