European Court of Human Rights

Information Note on the Court’s case-law No. 171

February 2014

Oruk v. Turkey - 33647/04

Judgment 4.2.2014 [Section II] See: (French text) [2014] ECHR 114

Article 2

Positive obligations

Article 2-1

Life

Death of six children as a result of failure to secure and supervise firing range containing unexploded ordnance: violation

Facts - In October 1993 a mortar rocket exploded in a village near a military firing range containing unexploded ordnance, killing six children, including the applicant’s son. A rough sketch of the place where the explosion took place was made by the gendarmerie, many statements were taken and an expert’s report commissioned. In December 1993 the public prosecutor declined jurisdiction and transmitted the case file to the military prosecutor’s office. In December 1995 the military prosecutor discontinued the proceedings. The applicant lodged an appeal against that decision in June 2003, but in January 2004 the military tribunal dismissed her appeal.

Law - Article 2 (substantive limb): The present case concerned the exercise of military activity under the responsibility of the State, the dangerousness of which was not in doubt and was fully known to the domestic authorities. The firing range was not surrounded by a fence or barbed wire, it had no warning signs and a panel had been set up only after the incident that claimed the lives of six children. In view of the danger of unexploded military ordnance, it was primarily the responsibility of the military authorities to ensure the safety and supervision of the area to prevent access to it and minimise the risk of the ordnance being moved. To this end, signs warning of the dangerous nature of the area should have been put in place to clearly delineate the perimeter of the ground at risk. In the absence of such signs, it was for the State to ensure that the firing range was cleaned up in order to eliminate all unexploded ordnance. The fact that the villagers were informed through the village muhtar (chief) about the firing exercises and the presence of unexploded ordnance could not be regarded as sufficient to exempt the national authorities from their responsibility towards the people living near such training areas. Such information was not, in any event, likely to reduce significantly the risks in question, because the military authorities themselves were not able to locate the ordnance. Having regard to the seriousness of the danger, the domestic authorities should have ensured that all civilians living near the military firing range were warned of the risks that they incurred from unexploded ordnance. The authorities should have particularly made sure that children, who were more vulnerable than adults, were fully aware of the dangers of such devices that they were likely to play with, believing them to be harmless. The shortcomings in the present case in terms of safety had been such that they exceeded mere negligence on the part of army personnel in the locating and destruction of unexploded ordnance.

In addition, and in view of the seriousness of the shortcomings observed, the violation of right to life of the applicant’s son could not be remedied merely by an award of damages. The applicant could not therefore be criticised for failing to use the compensatory remedies relied on by the Government in their plea of non-exhaustion of domestic remedies. The Government’s preliminary objection to that effect was thus rejected.

In conclusion, the national authorities had an obligation, which they had failed to fulfil, to take the appropriate measures as a matter of urgency in order to protect the lives of the people living near the firing range, independently of any action by the applicant herself, and to provide an explanation as to the cause of death of her son and any liability in that connection through a procedure initiated spontaneously.

Conclusion: violation (five votes to two).

Article 41: EUR 50,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

 

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