European Court of Human Rights

 

SECOND SECTION

 

 

 

 

 

 

 

 

CASE OF GENÇ AND DEMİRGAN v. TURKEY

 

(Application nos. 34327/06 and 45165/06)

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

10 October 2017

 

 

 

 

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Genç and Demirgan v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Julia Laffranque, President,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 5 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 34327/06 and 45165/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Ms Feride Genç, Mr Mustafa Demirgan (Demircan) and Mr Yılmaz Acar (“the applicants”), on 28 July and 19 October 2006 respectively.

2.  The applicants were represented by Mr S. Özay, a lawyer practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 11 September 2014 the complaints brought by the three applicants concerning the non-enforcement of domestic judgments and the right to respect for their private and family life were communicated to the Government and the remainder of the applications was declared inadmissible.

4.  By a letter dated 7 July 2017 the Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1971, 1953 and 1976 respectively and live in Bergama, İzmir.

A.  The Supreme Administrative Court’s decision of 13 May 1997

6.  On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş., received an authorisation to begin prospecting for gold. Subsequently, the company was authorised to use cyanide leaching in the gold extraction process by the Ministry of Energy and Natural Resources.

7.  On 19 October 1994 the Ministry of the Environment decided to issue an operating permit to the company for the Ovacık gold mine.

8.  On 2 July 1996 the İzmir Administrative Court dismissed a case brought before it for the annulment of the permit of 19 October 1994. On 13 May 1997 the Supreme Administrative Court quashed the first-instance judgment and decided that the permit should be annulled. It referred to the State’s obligation to protect the right to life and to a healthy environment and assessed the physical, ecological, aesthetic, social and cultural effects of the mining activity in question as described in the environmental impact report and the various expert reports which had been submitted to it. It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use. It concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity.  On 15 October 1997, in compliance with the Supreme Administrative Court’s judgment, the Administrative Court annulled the Ministry of the Environment’s decision to issue a permit for the mine. On 27 February 1998 the İzmir provisional governor’s office ordered that the mine be closed. On 1 April 1998 the Supreme Administrative Court upheld the judgment of 15 October 1997.

B.  Opinion of the Prime Minister and application for its judicial review

9.  On 5 April 2000 the Prime Minister’s office drew up a report on the mine. It concluded that operations at the mine could be authorised, having regard to the additional measures taken by the company, the conclusions of a report by the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”), the Ministry of the Environment’s favourable opinion and an opinion of the President’s Administration, which had emphasised the economic importance of an investment of that type.

10.  On 1 June 2001 the İzmir Administrative Court delivered a judgment on an application for judicial review of the report of the Prime Minister’s office, brought by twenty-five residents of Bergama, including the second and third applicants, Mr Mustafa Demirgan (Demircan) and Mr Yılmaz Acar. The administrative court decided to set aside the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of permits. Notwithstanding the measures taken by the company, the court held that judicial decisions which had become final had found that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine and that it was impossible to conclude that those risks could be avoided by implementing new measures. Equally, it had been established that the risk connected with the accumulation of heavy elements or cyanide could persist for twenty to fifty years and was likely to infringe the right of the area’s inhabitants to a healthy environment. Accordingly, it was appropriate to conclude that the decision at issue could lead to the circumvention of a final judicial decision and was incompatible with the principle of the rule of law.

11.  On 29 March 2006 the Supreme Administrative Court upheld the judgment of 1 June 2001 in so far as it had been brought by nineteen of the plaintiffs, including the second and third applicants and dismissed a rectification application by the Prime Minister’s office on an unspecified date.

C.  The provisional operating permit issued by the Ministry of Health and application for judicial review

12.  In the meantime, on 22 December 2000 the Ministry of Health decided to authorise the continued use of the cyanidation process at the mine for an experimental period of one year. The company re-started mining operations on 13 April 2001.

13.  In a judgment of 27 May 2004, the İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000 in a case brought by fourteen people, including the first applicant, Ms Feride Genç. In particular, it considered that the risks highlighted in the judgment of 13 May 1997 were, inter alia, linked to the use of sodium cyanide in the gold mine and to the climatic conditions and features of the region, which was situated in an earthquake zone. It held that those risks and threats could not be eliminated by supplementary measures which continued to be based on the same leaching process. It also concluded that the issuing of the permit in question had been incompatible with the principle of the rule of law as that administrative decision had in reality been intended to amend a judicial decision that had become final.

14.  On 2 February 2005 the Supreme Administrative Court upheld the judgment of 27 May 2004 and dismissed a rectification application by the Ministry of Health on 3 April 2006.

D.  Decision by the Cabinet of Ministers of 29 March 2002 and application for judicial review

15.  On 29 March 2002 the Cabinet of Ministers took a “decision of principle”, stating that the gold mine situated in the area of Ovacık and Çamköy, in the district of Bergama (İzmir) and belonging to the Normandy Madencilik A.Ş. company, could continue operations. The decision was not made public.

16.  On 23 June 2004 the Supreme Administrative Court ordered a stay of execution of the Cabinet decision in a case brought by twenty-four plaintiffs, including the second and third applicants. The Supreme Administrative Court found that the Prime Minister’s decision had been unlawful as the environmental impact assessment report which had allowed for the operating of the gold mine had been previously annulled. The Prime Minister’s office objected.

17.  On 18 August 2004 referring to the decision of 23 June 2004, the İzmir governor’s office ordered the closure of mine.

18.  On 7 October 2004 the Supreme Administrative Court upheld the stay of execution of 23 June 2004.

19.  On 20 May 2005 the goldmine began operating again under a permit of the same date issued by the İzmir governor’s office.

20.  On 22 March 2006 the Supreme Administrative Court annulled the decision of the Cabinet of Ministers a decision which was upheld on 21 February 2008 by the Supreme Administrative Court.

21.  According to the documents in the case file, various sets of other proceedings were brought between 2006 and 2012 by other residents of Bergama against various administrative authorities and Normandy Madencilik A.Ş. before the administrative courts, some of which are still ongoing. The gold mine was in operation until at least 2014.

THE LAW

I.  JOINDER OF THE APPLICATIONS

22.  In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their factual and legal similarities.

 

II.  THE GOVERNMENT’S OBJECTION

23.  The Government submitted that the applicants’ representative had failed to submit authority forms indicating that he represented the first and third applicants. They further submitted that the facts and the applicants’ complaints in the application forms had not been in accordance with Rule 47 of the Rules of Court. They therefore asked the Court to reject the application for failing to meet the requirements of Rule 47.

24.  The Court reiterates that it has already examined and dismissed that objection after it was made by the respondent Government in the cases of Öner Aktaş v. Turkey (no. 59860/10, § 29, 29 October 2013); Yüksel v. Turkey ((dec.), no. 49756/09, § 42, 1 October 2013); and T. and A. v. Turkey (no. 47146/11, § 41, 21 October 2014). The Court finds no reason to depart from that conclusion in the present case. Moreover, the applicants’ representative submitted authority forms indicating that he represented all three applicants. The Government’s argument on those points should therefore be rejected.

III.  AS REGARDS THE THIRD APPLICANT

25.  The Court observes that Mr Yılmaz Acar, the third applicant, was among the applicants in the case of Öçkan and Others v. Turkey (no. 46771/99, 28 March 2006). It is true that the present case concerns different sets of proceedings in domestic law than Öçkan and Others. However, given that the essence of both applications pertains to alleged breaches of the applicants’ rights guaranteed under Articles 2, 6, 8 and 13 of the Convention on account of the operation of the Ovacık gold mine despite the judicial authorities’ decisions, the Court finds that the complaints made in the present application are substantially the same as those submitted in the case of Öçkan and Others. Accordingly, the Court declares the present application inadmissible in so far as it was lodged by Mr Yılmaz Acar, in accordance with Article 35 § 2 (b) of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

26.  The first and second applicants alleged that the national authorities’ decisions to issue operating permits to the Ovacık gold mine, authorising the use of the cyanidation process, and the related decision-making process had given rise to a violation of their rights guaranteed by Article 8 of the Convention.

27.  The Government contested that argument.

A.  Admissibility

28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

29.  The first and second applicants complained, firstly, about the national authorities’ decision to issue a permit to operate a gold mine using the cyanidation process. Furthermore, the existence of a risk to their right to respect for their private and family life had been established by judicial decisions. In that regard, they referred to the judgments delivered under domestic law. The applicants also emphasised that several tonnes of explosives had been used in the course of the gold mine’s operations and that this had resulted in considerable noise pollution. In addition, the applicants alleged that the long legal dispute between the authorities and the local population, triggered by the State authorities’ deliberate defiance of final judicial decisions, had made their private lives unbearable.

30.  The Government submitted, firstly, that they were aware of the Court’s judgments in the cases of Taşkın and Others v. Turkey (no. 46117/99, ECHR 2004-X); Öçkan and Others (cited above); and Lemke v. Turkey (no. 17381/02, 5 June 2007). However, they noted that the Ovacık gold mine had started operating twenty years ago and that the applicants had failed to prove that it had had any negative impact on their rights guaranteed under Article 8 of the Convention. They submitted that there was no data showing that the gold mine presented a danger to the health of the local population, agricultural land or underground water sources.

31.  The Court held in the cases of Taşkın and Others (cited above, § 119); Öçkan and Others (cited above, § 43); and Lemke (cited above, § 41) that the administrative authorities formed one element of a State subject to the rule of law, and that their interests coincided with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Taşkın and Others, cited above, § 124; Öçkan and Others, cited above, § 48; and Lemke, cited above, § 42).

32.  In the present case, the Court observes that when on 13 May 1997 the Supreme Administrative Court annulled the decision of 19 October 1994, it cited the State’s positive obligation concerning the right to life and the right to a healthy environment. It held that owing to the gold mine’s geographical location and the geological features of the region, the operating permit did not serve the general interest and that the reports submitted to it had pointed to the danger of the use of sodium cyanide for the local ecosystem and human health and safety (see paragraph 8 above). The Ovacık gold mine was ordered to close on 27 February 1998, that is, ten months after the delivery of the Supreme Administrative Court’s decision and four months after it had been served on the authorities.

33.  The Court further observes that despite the aforementioned decision by the Supreme Administrative Court, on 22 December 2000 the Ministry of Health authorised continued use of the cyanidation process at the mine with the company re-starting mining operations on 13 April 2001 (see paragraph 12 above). What is more, the Cabinet of Ministers, by a decision of 29 March 2002 which was not made public, authorised the continuation of production at the gold mine (see paragraph 15 above, and Taşkın and Others, cited above, § 75).

34.  The Court notes that at the end of the administrative proceedings brought against the decisions of the Prime Minister’s office, the Ministry of Health and the Cabinet of Ministers by the residents of Bergama, including the first and second applicants, the judicial authorities ruled in favour of the plaintiffs. They referred to the Supreme Administrative Court’s decision of 13 May 1997, to the risks linked to the use of sodium cyanide in the gold mine and to the fact that the environmental impact assessment report allowing for the operation of the gold mine had been set aside (see paragraphs 10, 11, 13, 14 and 16 above). The administrative authorities, on the other hand, granted a permit for operations at the gold mine on 20 May 2005, despite the fact that the Supreme Administrative Court had ordered a stay of execution of the Cabinet decision that the gold mine could continue to operate. What is more, the gold mine remained in operation even after the judgments of 1 June 2001, 27 May 2004 and 22 March 2006 had become final.

35.  Hence, notwithstanding the procedural guarantees afforded by Turkish legislation and the implementation of those guarantees by judicial decisions, the administrative authorities deprived them of any useful effect in respect of the applicants (see Taşkın and Others, cited above, § 125; Öçkan and Others, cited above, § 49; and Lemke, cited above, § 45).  The Court finds therefore that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.

There has consequently been a violation of that provision.

V.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

36.  The second and third applicants alleged that the authorities’ refusal to comply with the administrative courts’ decisions had infringed their right to effective judicial protection in the determination of their civil rights.

37.  The Government contested that argument.

A.  Admissibility

38.  The Government argued that Article 6 § 1 did not apply in the instant case, given that the applicants based their allegations only on a probable and hypothetical risk which, in particular, was not at all imminent. Consequently, the applicants’ complaint did not concern “civil rights and obligations” within the meaning of this provision. The Government also argued that pursuant to Law no. 6384 a Compensation Commission was established to deal with applications concerning, inter alia, the non-execution of judgments. They maintained that the applicants had not exhausted domestic remedies, as they had not made any application to that Commission requesting compensation.

39.  The applicants did not make any submission on the issue of applicability of Article 6. As regards the Government’s submissions regarding the rule of exhaustion of domestic remedies, the applicants argued that they had exhausted every remedy available to them.

40.  As regards the Government’s objection that Article 6 is not applicable in the present case,  the Court notes that it has already examined and rejected the same argument raised by the Government in the aforementioned case Taşkın and Others (cited above, §§ 128-134) and reiterated that conclusion in the case of Öçkan and Others (cited above, § 52). It finds no reason to depart from its considerations in the above-mentioned cases and rejects the Government’s objection. Consequently, Article 6 of the Convention is applicable in the case.

41.  As regards the Government’s objection that the applicant failed to exhaust the domestic remedies, the Court notes that the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non-enforcement or delayed enforcement of judicial decisions. Law no. 6384 provided for the establishment of a Compensation Commission empowered to award compensation to individuals to deal with the Convention complaints falling within its scope (see Sayan v. Turkey (dec.), no. 49460/11, § 22, 14 June 2016). The Court considers that the applicants could claim compensation from the Compensation Commission, set up by Law no. 6384. However, in the circumstances of the present case, the award of compensation would not be a sufficient redress for the applicants’ Convention grievances since their complaint pertains to the non-enforcement of binding final judicial decisions to stop the operation of Ovacık gold mine (see Okyay and Others v. Turkey (dec.), no. 36220/97, 17 January 2002). Besides, the Turkish Government did not submit any decision showing that recourse to the Compensation Commission had led to the cessation of the activities of a gold mine or a similar mining or industrial activities in respect of which national courts had annulled operation permits. Against this background, the Court finds that the applicants were not required to apply to the Compensation Commission set up by Law no. 6384. The Court accordingly rejects the Government’s objection under this head.

42.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

43.  The Government asserted that the administrative authorities had taken action subsequent to the judgments by the administrative courts with a view to complying with those judgments. In the Government’s view, the administrative authorities could not be considered to have failed to enforce the judicial decisions in question.

44.  The applicants challenged the Government’s assertion and contended that the gold mine remained in operation despite the administrative courts’ judgments and that the non-enforcement of the administrative courts’ decisions was incompatible with the rule of law and contravened the requirements of Article 6 § 1 of the Convention.

45.  The Court notes that the administrative authorities’ decisions authorising the operation of the Ovacık gold mine and the resumption of the production at the mine between 13 April 2001 and 18 August 2004 and from 20 May 2005 onwards was tantamount to circumventing a judicial decision as the administrative courts relentlessly emphasised. Such a situation adversely affects the principle of a law-based State, founded on the rule of law and the principle of legal certainty (see Taşkın and Others, cited above, § 136, and Okyay and Others v. Turkey, no. 36220/97, § 73, ECHR 2005-VII).

46.  In the light of the above considerations, the Court considers that the national authorities failed to comply in practice and within a reasonable time with the decisions and judgments given by the İzmir Administrative Court and the Supreme Administrative Court on 1 June 2001, 27 May 2004, 23 June 2004 and 22 March 2006, thus depriving Article 6 § 1 of any useful effect.

There has therefore been a violation of Article 6 § 1 of the Convention

VI.  ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION

47.  The second and third applicants submitted that the administrative authorities’ decision to issue a permit authorising the gold mine to use the cyanidation process and the refusal by those authorities to comply with the decisions of the administrative courts had constituted violations, respectively, of their right to life and their right to an effective remedy. They relied on Articles 2 and 13 of the Convention.

48.  The Court notes that the applicants’ complaints under Articles 2 and 13 of the Convention are, in essence, the same as those submitted under Articles 6 § 1 and 8, examined above. Accordingly, it considers that it is not necessary to examine them separately under the other provisions (see Taşkın and Others, cited above, §§ 139 and 140).

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  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.”

50.  The first and second applicants each claimed 25,000 euros (EUR) and EUR 50,000 in respect of pecuniary and non-pecuniary damage. They also claimed a total of EUR 178,750 for the costs and expenses incurred before the Court. They did not, however, provide proof for the costs and expenses.

51.  The Government contested those claims.

52.  The Court observes that the applicants did not submit any document in support of their claim that they had suffered pecuniary damage and the Court therefore rejects it. On the other hand, ruling on an equitable basis, it awards the applicants EUR 3,000 each in respect of non-pecuniary damage.

53.  As regards the claims for costs and expenses, the Court reiterates that according to its case-law, 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, regard being had to the above criteria and given the applicants’ failure to submit any documents in support of their claims in respect of the costs and expenses incurred before the Court, the Court makes no award under this head.

54.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares the first and second applicants’ complaints under Articles 6 § 1 and 8 of the Convention admissible and the third applicant’s complaints inadmissible;

 

3.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the first and second applicants;

 

4.  Holds that there has been a violation of Article 8 of the Convention in respect of the first and second applicants;

 

5.  Holds that there is no need to examine the admissibility or the merits of the first and second applicants’ remaining complaints under Articles 2 and 13 of the Convention;

 

6.  Holds

(a)  that the respondent State is to pay EUR 3,000 (three thousand euros) each, plus any tax that may be chargeable, to the first and second applicants in respect of non-pecuniary damage, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement.

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                    Julia Laffranque

Deputy Registrar                                                                       President