The Constitutional Court ruled that the mentally disabled child who was seriously injured by the electric current passing through the high voltage line cables on the railway had violated the right to life and the right to be tried within a reasonable time,
According to the decision published in the Official Gazette, mentally handicapped Gürkan Kaçar, born in 1990, was seriously injured by stealing an electric current while playing on a railroad under a bridge in Eskişehir in 2004.
The Eskişehir Chief Public Prosecutor's Office launched an investigation into the incident. The family, whose statement was taken during the investigation, said that the wall separating the railway from the street was ruined and Gürkan entered the railway through this ruined section.
Attorney General, in 2005 the Republic of Turkey State Railways (TCDD) facilities serving as chief OY filed a public lawsuit for the cause of injury due to carelessness and carelessness.
In the trial held by Eskişehir 2. Criminal Court of First Instance, the report prepared by the experts stated that Gürkan Kaçar was completely defective in the incident. The court decided the acquittal of the accused, while the 9th Criminal Division of the Supreme Court of Appeals upheld this decision in 2007.
Kaçar's family also requested TCDD to compensate 2005 thousand lira on the grounds that it had a service defect in 50. Unable to respond to his request, the family filed a compensation case in the Eskişehir 1st Administrative Court.
The Administrative Court decided to dismiss the case in 2006 on the grounds that there was no causal link between harm and administrative action. The 10th Department of the Council of State, which discussed the appeal, appealed to the administrative staff in terms of determining whether the administration has a service defect or not. In 2010, it overturned the decision on the grounds that it was compulsory to examine the information and documents in the public case against him.
In the trial held after the decision of annulment, the rejection of the case was decided in 2011 after the local court examined the relevant documents.
The family's appeal was rejected by the Council of State in 2013, while the request for rectification was not accepted in 2014.
The family then made an individual application to the Constitutional Court. The Supreme Court ruled that Gürkan Kaçar's right to life and trial within a reasonable time was violated.
In addition, it was decided to pay Gürkan Kaçar 25 thousand, and his family 9 thousand 600 TL in compensation and to try again to eliminate the violations and their consequences.
The decision, one of the necessary conditions for the application of the right to live in the event of one of the necessary conditions for the realization of the death is natural, but in some cases even if death does not occur, the event can be examined within the framework of the right to be recorded.
The mentally retarded child, who could not be expected to be cautious, could enter the dangerous zone through the security wall, which was left ruined, and was seriously injured by the electric current exposed in the cables exposed here. It was emphasized that it was not possible to accept.
In the judgment, it was concluded that there was a real and imminent danger that the public authorities could foresee for life in the concrete incident and that the authorities did not take any measures that could be expected from them within reasonable measures in order to prevent this danger.
Remarked that the case related to the event was concluded after approximately 9 year, the following determinations were made:
“In the case, it was not observed that the necessary security measures for the dangerous activity carried out and the applicant was a child with a mental disability, and that letting his parents be in the dangerous area would not completely eliminate the responsibility of the administration, and the applicant was deemed to be fully flawed in the incident.
Moreover, the case does not have such a complexity that it would take so long. It was therefore concluded that the case had not been acted reasonably quickly, which could cause damage to the important role it had in preventing similar violations of the right to life that might arise later. In the light of all statements, it was concluded that the case in question was not clearly in line with the principle of providing effective judicial protection against a real danger to life. ”
Click for the full text of the Constitutional Court Decision
Source : www.ntv.com.t is
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