Published on 27 September 2021

SECOND SECTION

Application no. 48173/18 Arif Ali CANGI and Others against Turkey lodged on 17 September 2018 communicated on 10 September 2021

SUBJECT MATTER OF THE CASE

The application concerns administrative proceedings brought by the applicants challenging the Ministry of Environment’s decision approving an environmental impact assessment (“EIA”) report concerning the exploitation and the operation of the Kışladağ-Uşak open-pit gold mine by a private developer. In the course of the proceedings the administrative court appointed a panel of three experts and a separate expert with a view to assessing, inter alia , the potential impacts of the operation of the gold-mine on the environment, the appropriateness of the hip-leaching technique, and the adequacy of the preventive measures proposed by the developer, in particular with respect to cyanide contamination risks. The administrative court held an on-site discovery hearing in the presence of the parties and presented the experts with the investigation file with a list of questions to be answered in their report. The applicants’ separate questions to the experts were not included by the administrative court in the investigation file given to the experts.

On 23 and 30 December 2009, respectively, the experts delivered their reports to the court. On 6 January 2010 the applicants objected to those reports in writing, complaining also of the fact that they had not been communicated to them for their comments.

On 13 October 2010 the administrative court dismissed the case on the basis of the expert reports, holding the applicants’ objections to be manifestly ill-founded. The applicants’ subsequent appeals to the Supreme Administrative Court regarding, inter alia , their right to effectively participate in the proceedings were dismissed without any specific reasoning.

In its decision of 24 January 2018 the Constitutional Court examined the applicants’ individual appeal concerning their right to a fair hearing and right to respect for their private lives, including the right to a healthy environment, under the procedural guarantees of Article 8 of the Convention only. It then declared the application admissible in so far as it had been brought by Mustafa Sakaryalı, holding that he was the only applicant having victim status under Article 8 of the Convention since he lived in the vicinity of the mine, and found no violation in respect of the procedural guarantees implied in that provision. It held in this respect that the first-instance courts had thoroughly responded to his objections to the expert reports in question.

Relying on Article 6 of the Convention, the applicants complain that their right to a fair hearing was violated on account of the fact (i) they were not given an opportunity to put their own questions to the experts (ii) non-communication of the expert opinions to them for comments and (iii) inadequate reasoning of the domestic courts with respect to their objections to the conclusions of the experts.

QUESTIONS TO THE PARTIES

1. Did the administrative court proceedings involve the determination of “civil rights and obligations” in respect of all applicants within the meaning of Article 6 § 1 (see Okyay and Others v. Turkey , no. 36220/97, §§ 64-69, ECHR 2005 ‑ VII)?

2. Did the applicants have a fair trial in the determination of their civil claims, in accordance with Article 6 § 1 of the Convention? In particular, given the decisive importance of the expert opinions in question, were the principle of adversarial proceedings and right to a reasoned judgment respected in the administrative proceedings having regard to applicants’ allegations that they were not able to put questions to the experts; that the reports were not forwarded them for comment and that their objections to the conclusions of the experts were dismissed by the courts without adequate reasoning?

No.

Applicant’s Name

Year of birth /registration

Place of residence

1.Arif Ali CANGI

1964Ä°zmir

2.ErtuÄŸrul BARKA

1950Ä°zmir

3.Ömer Turgut ERLAT

1958Ä°zmir

4.Oya OTYILDIZ

1958Ä°zmir

5.Muammer SAKARYALI

1957Ä°zmir

6.Mustafa SAKARYALI

1939UÅŸak