Published on 7 June 2021

SECOND SECTION

Application no. 44281/18 Sebahat YARAÅžIR and Others against Turkey lodged on 4 September 2018 communicated on 20 May 2021

STATEMENT OF FACTS

1 . A list of the applicants is set out in the appendix.

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . All applicants are residents of Kangal, Sivas. The application concerns the Bakırtepe gold mine in Sivas.

4 . On 13 March 2013 the Ministry of the Environment and Natural Resources (“the Ministry”) issued a private developer, Demir Export A.Ş., (“the developer”), with a decision approving the environmental impact assessment (“EIA”) report in respect of the Bakırtepe mine for the extraction for gold using cyanide leaching.

5 . The applicants, together with various professional bodies, cultural associations and a union of mining workers, made an application before the Sivas Administrative Court for the annulment of the Ministry ’ s decision. They argued, inter alia , that the environmental impact assessment report had not discussed at all the effects of the mine development and its operation on livestock herding, agriculture and apiculture on which the local population relied. They also submitted that the report did not contain any findings on the immediate and future impact of the goldmine operation on water resources. They expressed concerns that water envisaged to be used for the operation of the mine would lead to the water scarcity and the contamination of current water resources for the population. They further complained that the public consultation process had not been in accordance with the domestic regulations. Finally, they submitted that the Bakırtepe region was considered sacred for the Alevi faith.

6 . The Sivas Administrative Court appointed a panel of five experts with a view to determining whether the impugned report adequately addressed the technical aspects required by the EIA regulations.

7 . The report of the panel has not been made available to the Court. However, it is indicated in the Sivas Administrative Court ’ s decision that the panel of experts could not reach a unanimous opinion. Accordingly, the majority held that the project was not against the public interest provided that certain technical aspects were supplemented and rectified in the report and all the precautionary measures mentioned therein were fully complied with. One of the experts in the minority expressed the view that the EIA report was not adequate and there was no public interest in the development of the mine whereas the other expert expressed a diametrically opposite view.

8 . On 28 November 2014 the Sivas Administrative Court annulled the Ministry ’ s decision approving the EIA report on the basis of the majority opinion in the expert report. It held that while the report had adequately addressed the technical aspects vis-à-vis the mining operation itself, it had not contained a scientific assessment of the effects of the development and operation of the mine on flora and fauna, geology and underground water resources. It further noted that the opinions of the public during the consultation process had not been reflected in the EIA report as a result of the participants leaving the meeting held for that purpose.

9 . Following the decision of 28 November 2014, the developer revised the parts of its previous EIA report which had been found insufficient by the Sivas Administrative Court and submitted it to the Ministry for approval. The Minister issued a decision on 31 December 2014, approving the revised EIA report in the context of the fast-track procedure provided for in Circular no. 2009/7.

10 . The applicants Ali Mermer, Hüsne Gölbaşı and Hüsnü Koçyıldız, along with various professional bodies and cultural associations made an application before the Sivas Administrative Court for the annulment of the Ministry ’ s decision of 31 December 2014. At the same time, a separate action for the annulment of Circular no. 2009/7 was brought before the administrative courts by several professional bodies and two local villages in their capacity as legal entities. The applicants were not parties to the latter proceedings.

(a) Administrative proceedings for the annulment of the Ministry ’ s decision of 31 December 2014

11 . On 17 December 2015 the Sivas Administrative Court dismissed the case, finding the revised EIA report to be compliant with the EIA regulations and with its previous judgment of 28 November 2014.

12 . On appeal by the applicants, the Supreme Administrative Court set aside the decision of the Sivas Administrative Court on 16 June 2016. In respect of the applicant Hüsne Gölbaşı, the high court rejected his case for lack of standing, on the grounds that he was not a resident or property-owner in the concession area. Granting the remaining two applicants, and some other litigants, standing, the high court held as follows:

“Even though the first-instance court had kept its examination to whether the shortcomings it had found in the EIA report in its previous ruling of 28 November 2014 had been rectified, there have been new developments in the meantime ... In that connection, following the initial decision of the Ministry approving the EIA on 13 March 2013, the Molladere barrow and its surroundings, which appear to fall within the concession area of the project, were declared as a first degree archaeological conservation area, and the Bakırtepe site was declared as an intangible cultural asset by the local authorities. In the light of the new developments, and having regard to the regulations that prohibit any development in a conservation area, the EIA procedure must be started afresh with a view to resolving whether there is an overlap with the concession area and the Molladere barrow and also assessing the likely effects of the activity on the Bakırtepe site and precautionary measures to ensure its conservation ...

In addition, a part of the concession area, was designated as meadowland on 30 April 2014 ... thus according to relevant legislation in place which prohibits any mining activity on meadows, the Ministry ’ s decision is unlawful on this respect, as well.”

(b) Administrative proceedings for the annulment of the Circular no. 2009/7

13 . Referring to the administrative and judicial decisions in the context of the Bakırtepe mine above, several professional bodies and two local villages in their capacity as legal entities brought proceedings for the annulment of the Ministry ’ s Circular no. 2009/7, which enabled the Ministry to approve an EIA report set aside by an administrative court, in a fast-track manner and only on the basis of the revisions made to it by the developer and without the participation of the public. The litigants argued that the Circular lacked a legal basis, bypassed the public participation process and had the effect of circumventing court judgments.

14 . On 9 November 2016 the Supreme Administrative Court dismissed the case in a majority vote, finding that Circular no. 2009/7 was a practical solution aimed at rectifying the shortcomings found in an EIA report which was otherwise compliant with the EIA regulations. The minority opinion considered that the Circular was unconstitutional on the basis of Article 138 of the Constitution which prohibited the executive from deferring, amending or otherwise not complying with court judgments.

15 . Following the decision of the Supreme Administrative Court of 16 June 2016 setting aside the revised EIA report of 2016 (see paragraph 12 above), the developer submitted a second revised EIA report to the Ministry on the basis of Circular no. 2009/7, which was approved on 21 August 2016. By that time, the mining activity had become partly operational.

16 . The applicants Ali Mermer, Hüsnü Koçyıldız, Sabahat Yaraşır and Nadiriye Arslan, along with other individuals, several professional bodies, cultural association and two local villages in their capacity as legal entities, made an application to the Sivas Administrative Court for the annulment of the Ministry ’ s decision of 21 August 2016.

17 . The Sivas Administrative Court appointed a panel of experts with a view to determining a) the negative effects of the activity on the environment and whether the precautionary measures to that effect were in line with regulations, b) whether the allegation that the ores extracted from other mines were being processed at the operation site was well-founded and, if so, the compliance of this factual situation with the existing regulations, c) whether there was an overlap with Molladere barrow and the concession area, d) whether the activity could have negative effects on the Bakırtepe site and if so what measures were taken to alleviate or prevent such effects, e) whether there was an overlap with the concession area and the meadowland and in any case whether the activity could have negative effects on meadows.

18 . In a report submitted to the Sivas Administrative Court on 27 November 2017, the experts noted that there was a problem of proper inspection and monitoring process in the operation on account of the financial arrangement between the developer and the inspecting company. For this reason, the experts considered that the inspection mechanism in place was not independent and that as a result, the tests conducted for measuring pollution were not reliable. They further noted that if the testing and precautionary measures as set out in the EIA report were not actually implemented, it would pose very serious health hazards to the environment and the health of local residents. They noted in that connection that the concerns expressed by the local residents were justified. On the question of the operation processing ore from other mines, the experts did not find an issue, noting that it corresponded to a negligible amount of the operation ’ s processing capacity. However, they pointed out the likelihood of dust pollution during the transport of the ore, which they found not to have been addressed in the EIA report. On the more general question of dust, the experts noted that the momentary dust exposure had not been addressed and it was quite likely that during the explosions made on site for development, the nearest village of Eğricek and its inhabitants would be exposed, which could lead to respiratory diseases. On the issue of Molladere barrow, the experts did not find an overlap. On the other hand, while the Bakırtepe site was found to be within the concession area, the experts considered that the operation would not have any significant effects on it, as the developer had sectioned off the open pit and the industrial site with barbed wire and the area where the industrial operation was taking place was 675 metres away from the mound and access to it was not hindered. As regards the meadowland, the experts noted that this area was included in the concession area in the original EIA, but that it was taken out later. However, the experts noted that the operation which was adjacent to meadowland had negative effects on the grazing animals and wildlife, on account of the corruption of the meadowland ’ s integrity, as well as the dust and noise emanating from the operation.

19 . On 19 March 2018 the Sivas Administrative Court annulled the Ministry ’ s decision of 21 September 2016 on the basis of the expert report.

20 . While the proceedings before the Sivan Administrative Court were ongoing, the applicant Ali Mermer made an individual application before the Constitutional Court, complaining that an administrative law action for annulment of a Ministry ’ s decision approving an EIA report was not an effective remedy for the protection of his rights under Articles 6 and 8 of the Convention on account of the Ministry ’ s Circular no. 2009/7 allowing the authorities to circumvent court judgments by issuing approvals for revised EIA reports.

21 . On 27 November 2017 the Constitutional Court declared the application inadmissible for non-exhaustion of remedies in a short-form decision on the ground that the proceedings before the Sivas Administrative Court were still ongoing.

22 . On 15 March 2018, that is to say before the Sivas Administrative Court pronounced its decision in the third set of proceedings (see paragraph 19 above), the Ministry issued a new decision approving the revision to the EIA report.

23 . The applicants, along with other litigants, made an application to the Sivas Administrative Court for the annulment of the decision of 15 March 2018.

24 . The Sivas Administrative Court in its interim decision of 6 June 2018 appointed a panel of three experts with a view to determining whether the revised EIA report complied with technical aspects of the EIA regulations.

25 . The applicants lodged their application with the Court on 4 September 2018 without awaiting the decision in those proceedings and without introducing another individual application before the Constitutional Court.

26 . The relevant legal framework can be found in TaÅŸkın and Others v. Turkey (no. 46117/99, §§ 90-97, ECHR 2004 ‑ X) and Okyay and Others v. Turkey (no. 36220/97, §§ 46-59, ECHR 2005 ‑ VII).

27 . Circular no. 2009/7, issued by the Ministry on 13 February 2009, provides that it is not necessary to start the EIA report procedure afresh when a court annuls or orders the stay of execution of the Ministry ’ s decision approving the EIA in question as long as the incompatibility found by the court concerns certain parts and does not prejudice the other parts of the EIA report.

COMPLAINTS

The applicants complain under Article 6 of the Convention that the systematic administrative practice on the basis of Circular no. 2009/7 deprives any administrative law action for the annulment of an EIA report all of its useful effect. They argue in that connection that despite the fact that the Ministry ’ s decisions approving the EIAs issued by the developer were set aside in each of the administrative proceedings they brought, the national authorities continued to approve the revised EIAs shortly after the decisions in question, thus depriving the applicants of effective judicial protection.

Relying on Article 8 of the Convention, the applicants complain of the negative effects of the development and operation of the mine on the Bakırtepe site, which they regard to be sacred and culturally significant for their Alevi faith and identity.

QUESTIONS TO THE PARTIES

1. Did the national authorities comply with the administrative court decisions that cancelled the Ministry ’ s decisions approving the EIA report and the subsequent revisions to it, in accordance with the requirements of Article 6 § 1 of the Convention (see, inter alia , TaÅŸkın and Others v. Turkey , no. 46117/99, § 73, ECHR 2004 ‑ X)?

2. Does the present application reveal an administrative practice incompatible with the Convention on account of Circular no. 2009/7, which allegedly facilitates circumventing judicial decisions on environmental issues (see, mutatis mutandis , Bursa Barosu Başkanlığı and Others v. Turkey , no. 25680/05 , § 141, 19 June 2018)? In that connection,

- What are the criteria for an EIA, that has been set aside by a court decision but revised afterwards, to be approved by the fast-track procedure in Circular no. 2009/7?

- During the revision to the EIA and before the Ministry ’ s decision, is there a public consultation process?

- Is there a separate procedure or an authority that determines whether an EIA which has been found incompatible in certain aspects by a court decision can be subjected to the fast-track procedure in Circular no. 2009/7? If so, can that decision alone be challenged in the courts?

3. Bearing in mind the jura novit curia principle that the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 112, 20 March 2018), and having regard to the submissions of the applicants, do the facts of the case concerning the alleged negative effects of the mining operation on the Bakırtepe cultural and religious ritual site attract the applicability of either (or both) Article 8 or 9 of the Convention? If so, have the applicants exhausted domestic remedies in respect of those complaints? In the affirmative, has there been a violation of either of those provisions?

APPENDIX

No.

Applicant ’ s Name

Year of birth

Nationality

Place of residence

1.Sebahat YARAÅžIR

1967Turkish

Sivas

2.Nadiriye ARSLAN

1960Turkish

Sivas

3.Hüsne GÖLBAŞI

1970Turkish

Sivas

4.Hüsnü KOÇYILDIZ

1948Turkish

Sivas

5.Ali MERMER

1969Turkish

Sivas