Lexploria

Information Note on the Court’s case-law 69

November 2004

Taşkın and Others v. Turkey - 46117/99

Judgment 10.11.2004 [Section III]

Article 8

Article 8-1

Respect for private life

Applicability of Article 8 to private activities producing dangerous effects to which applicants risk being exposed

Use of toxic substance in mining: violation

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Right to a clean environment: application by person living close to a gold mine for annulment of decision authorising use of toxic substance: Article 6 applicable

Access to court

Non-enforcement of a judgment of the Council of State and subsequent administrative decisions seeking to circumvent it: violation

Article 8

Positive obligations

Failure of authorities to comply with court decisions and domestic law in environmental matters : violation

Facts : In 1994 the Ministry of the Environment granted permission for the use of sodium cyanide leaching at a gold mine near Izmir, following a preliminary public consultation and on the basis of an impact study, as required by the Environment Act. Referring to the risk that their health and safety would be threatened and that the environment would be damaged, local residents, including the applicants, who were farmers or stockbreeders, applied for cancellation of the permit. In May 1997 the Supreme Administrati ve Council ruled, in the light of expert reports and the risks set out in the impact study, that the use of sodium cyanide presented dangers for the local ecosystem and for human health and safety; it concluded that the operating permit was not compatible with the public interest and that the safety measures which the mine’s owners had undertaken to implement were insufficient to overcome the risk inherent in such operations. The Supreme Administrative Council’s judgment gave rise ipso facto to a stay of ex ecution of the disputed permit, which was cancelled five months later. However, the authorities were slow to enforce those decisions. Accordingly the courts ordered that the applicants be paid compensation. For its part, the company which owned the mine fi led new applications for permits, claiming that it had taken measures to ensure the site’s safety. A report drawn up at the Prime Minister’s request by a scientific institute concluded that the threats to the ecosystem listed in the Supreme Administrative Court’s 1997 judgment had been reduced to a level lower than the acceptable limits. Based on that report, the authorities granted permission for continued operations using cyanide leaching at the mine, on a provisional basis. Since that procedure did not c omply with the legal provisions, the courts overturned the report and cancelled or imposed stays of execution on administrative decisions taken on its basis. When the mine had been operating for eleven months, the Council of Ministers decided “as a princip le” that the gold mine could continue its activities; this decision was not made public. Without contesting cyanide’s toxicity, the decision asserted that the leaching technique was not harmful to health provided certain precautionary measures were taken, and emphasised the mine’s contribution to the national economy and to employment. As those proceedings again failed to comply with the legal provisions, the Supreme Administrative Court ordered a stay of execution of that decision. In August 2004 the Izmir provincial governor’s office ordered the mine to cease gold extraction. Under the Environment Act, companies which envisaged carrying out activities which were potentially harmful to the environment were obliged to draw up a preliminary impact study under the strict supervision of a group of experts; a decision to grant or refuse authorisation could be delivered solely on the basis of that study, to which the public had access.

Law : Article 8 – Applicability : Where the dangerous effects of an activity to w hich the applicants were likely to be exposed had been determined through an environmental impact assessment procedure in such a way as to establish a sufficiently close link with private and family life within the meaning of Article 8, that Article was ap plicable. The Court based its position on the Supreme Administrative Court’s finding in May 1997 and concluded that such a link did exist. Accordingly, Article 8 was applicable.

Compliance with Article 8 : The administrative decision authorising the gold mi ne’s operations had been cancelled by the Supreme Administrative Court in 1997 on the ground that it was contrary to the public interest. It remained to be determined whether the interests of the individual had been taken into account in the course of the ensuing decision-making process. The authorities had not ordered the mine’s closure until ten months after the delivery of the Supreme Administrative Council’s judgment cancelling the permit, and four months after it had been served on the authorities. As well as refusing to comply with the courts’ decisions, the authorities had issued permits to the mine’s operators in contravention of the domestic legislation, which required a preliminary impact study to be drawn up. This meant that there was no new legal ly-founded decision to take the place of the one which had been set aside by the courts on account of the environmental risks. Further, in spite of the procedural safeguards laid down by Turkish legislation and the practical effect given to those safeguard s by the judicial decisions which cancelled subsequent permits, the Council of Ministers, in a decision which was not made public, authorised continued activity at the gold mine, which had already been operating for eleven months. The authorities had thus deprived the procedural safeguards available to the applicants of all useful effect.

Conclusion : violation (unanimously).

Article 6 § 1 – Applicability : The right relied on in substance by the applicants before the administrative courts was that of obta ining adequate protection of their physical integrity against the risks created by the gold mine’s use of a procedure involving a toxic substance. The right to live in a healthy and balanced environment was recognised in Turkish legislation. Furthermore, t he dispute was genuine and serious. As to the “civil” nature of the disputed right, the Court concluded that the applicants’ right to protection of their physical integrity was directly at stake once the risks caused by the mine’s operations had been estab lished by the Supreme Administrative Court, which based its conclusion on the preliminary studies. Equally, by bringing an application for judicial review, the applicants had used the only means at their disposal under domestic law to complain of an infrin gement of their right to live in a healthy and balanced environment and of a threat to their lifestyle; domestic law also provided that, once the Supreme Administrative Court had given its judgment cancelling the previous decision, any administrative act d esigned to thwart it would give rise to the possibility of compensation. For those reasons, the outcome of the proceedings in this case, taken in their entirety, could be considered to concern the applicants’ civil rights and Article 6 was therefore applic able.

Effective judicial protection : The Supreme Administrative Court’s judgment of 1997, which was favourable to the applicants, had not been enforced by the authorities within the time-limits prescribed by the domestic legislation. Moreover, the resumpt ion of the mine’s activities, on the basis of ministerial authorisations issued at the Prime Minister’s direct prompting, had had no legal basis and amounted, as the domestic courts had pointed out, to circumvention of a judicial decision. Such a situation was incompatible with a law-based state, founded on the rule of law and the security of legal relations.

Conclusion : violation (unanimously).

The Court held that it was not necessary to examine separately the complaints under Articles 2 and 13.

Article 4 1 – Ruling on an equitable basis, the Court awarded each of the ten applicants EUR 3,000 for non-pecuniary damage.

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