LexisNexis, the worldwide unrivalled legal and academic online information provider, asked LLI to provide an article on Corporate Manslaughter Regime in Turkey following the mine accident in Soma, resulting a death toll of 301. Being the country’s worst ever mining accident, Soma mine accident also have been a huge topic of discussion considering criminal liabilities of the managers and LLI examined potential consequences for the management under Turkish Criminal Law.
The article was published on 4 June 2014 in Middle East Law Section with the title “Assessing the Corporate Manslaughter Regime in Turkey” and thought to have reached thousands of colleagues and legal experts worldwide.
What happened?
According to the Energy and Natural Resource Ministry, on 13 May 2014, 301 people died in the Soma mine disaster in Turkey’s Western Manisa province. The accident is not the first in the country, but is the most fatal.
There are reports the mine did not comply with modern labour and safety standards. It is operated by Soma Komur Isletmeleri A.S. which is a private company and during the staff shift change on 13 May 2014, an explosion occurred. The cause is still under investigation and 301 people are confirmed to have died, although it is understood illegal workers were in the mine at the time so there is no official record of how many people were actually underground at the time of the explosion.
Despite the apparent risks, the Turkish authorities have long been criticised for being reluctant to enforce adequate labour safety regulations.
What’s the current regulatory regime?
Coal extractions and other mining operations have been privatised in recent years and operational rights are delegated to private companies by ‘special contracts’ which provide contractors with operating rights and grant them royalty rights.
The legal and criminal liabilities of mining firms, employers and their representatives are not regulated in specific laws but for civil penalties, like compensation for loss of support, are contained in the Turkish Code of Obligations and Code of Social Security and criminal penalties are contained in the country’s Criminal Code.
Under Turkey’s legal system, criminal liabilities are personal and penalties cannot be levied against legal entities although there are other sanctions reserved in various regulations against legal entities.
Penalties will therefore be imposed on the legal representatives, agents and inspectors. Under the country’s Criminal Code, criminal offences are listed as ‘numerus clausus’ and in order to sentence an offender, one of the ‘numerus clausus’ listed actions should be committed ‘in culpa’ and a causal connection between the cause and effect has to be established. The Criminal Code defines ‘in culpa’ in four stages. It may be an action of intent, an action of eventual intent, an action of conscious negligence or simple negligence.
An offence committed with intent, is defined under Article 21(1) of the Code as an action committed wilfully and by acknowledging the elements of the offence as defined in the code. If the offender acknowledges the possible outcome, the elements of the offence and commits the offence without having direct intent for the outcome/result, they will be liable for eventual intent. An action with conscious negligence can be defined as a committed action, resulting in a crime which was or could have been foreseen by the offender although it is not necessary the offender actually intended for it to happen.
Applying the law to the Soma accident
As outlined above, the characteristic of an action ‘in culpa’ will be the legal basis for the criminal sanction against the offenders in the Soma mine incident. In relative cases, Turkish Criminal Courts relied on simple negligence and found the offenders guilty in line with Article 85 of the Criminal Code, which regulates Involuntary Manslaughter. The penalty for this offence is a two to six jail sentence. However as it is usually the case, the court applies Article 85(2) defining the aggravated offence, which states that if more than one person is dead or if one person is dead and one or more people are injured as a result of the negligent action, the jail sentence will be increased to 15 years.
However, determining who the offenders are and how responsible they are is not usually that simple, as it is in the Soma accident. There are allegations the mine was not suitable to operate in the first place as workers and engineers who survived the blast have said the mine was too hot and the excavated coal was much hotter than usual in the fifteen days before the accident and the amount of carbon monoxide was ten times its safe level. The mine also did not have rescue chambers and even though it is not a requirement under Turkish mining regulations to establish rescue chambers, it is deemed to be an essential requirement internationally.
Considering these allegations, the criminal investigation should be wider than Involuntary Manslaughter which is based on simple negligence. It should also look at the eventual intent or an action with conscious negligence depending on the responsibilities and gravity of the breach of responsibilities by the managers, employers, coal mine inspectors and regulatory officials and supervising government authorities.
What are the possible outcomes?
Following the prosecution, if the court confirms the managers of the operating company, their representatives and inspectors were aware that the mine was not suitable for operation and that this kind of accident was likely to occur, then they will be convicted of an action of eventual intent and will be jailed for life, which in line with Turkish law is 36 years.
However, it’s unlikely the court will reach this verdict. If the court confirms those liable were aware of the risks and safety problems but did not intend for any harm to occur, they will be charged with conscious negligence and in line with Article 22(3) of the Criminal Code, their penalty under Article 85(2) will be increased from one third to half of the actual penalty in which the person found guilty would be charged from either two years eight months to twenty years or from three years to twenty two years six months
Unfortunately it is entirely possible for the mine owner to avoid criminal liability and leave the managers entirely responsible, even if liability is established as negligence is a ‘personal’ crime under Turkish law and there is no offence of corporate manslaughter as we know it.
The final possibility for the liability may be based on Article 83 of the Criminal Code defining Wilful Manslaughter with Negligent Action. In this scenario, the person considered liable is someone who undertakes obligations to perform positive actions like performing due diligence etc and the lack and negligence of performing these actions results in the death of another person. The court may decide that the failure to take the necessary precautions, being negligent on the mine’s physical state and failing to train the miners will result in a verdict of Wilful Manslaughter with Negligent Act. If this is the case, a 15 to 20 jail sentence will be imposed. This is proportionally reduced from the penalty for Manslaughter with Intent.
However the court can also decide not to apply a reduction on the penalties and may impose a lifetime jail sentence which equates to a minimum term of 36 years.
Are there any precedents?
Whilst the criminal courts used to find those found guilty in these types of cases of simple negligence and involuntary manslaughter, a recent Supreme Court ruling has been issued which raises the possibility the Soma criminal proceedings will not follow the existing case law.
The case before the Supreme Court involved a mine accident in Mustafakemalpasa/Bursa in 2009 where 19 miners died.
Whilst, the Court at First Instance decided it was simple negligence and involuntary manslaughter which resulted in injunctions of five to six years being imposed on the accused, including the CEO of the mine, in its landmark ruling handed down on 31 May 2014, the Supreme Court said the accused should be charged not with simple negligence but with eventual intent and wilful manslaughter and be jailed for at least twenty years.
Where now?
The Supreme Court ruling has significance for the Soma case as it emphasised liabilities and penalties which could be counted as fair and equitable.
However there are some major concerns about the impartiality and credibility of the criminal procedures in the Soma case. Whilst eight people have been detained, including the CEO of Soma Komur Isletmeleri A.S, Can Gurkan, who is also the son of the majority shareholder of the Soma Holding, the managing director and some engineers and hearings will start taking place at the Akhisar Criminal Court, there are concerns over political interference in the case.
Within 24 hours of the accident, relatives of the victims, along with local, national and international press and protesters rushed to Soma. Due to the severity of the anti-government protests, the town was quickly surrounded by policemen and gendarmerie, prohibiting all unauthorised access to the town and especially to the mine area, which resulted in a de facto state of emergency in the region.
Voluntary lawyers and experts who wanted to offer legal services for the relatives of the victims have been beaten and detained by the policemen without a court order and many protestors have experienced similar treatment.
