Communicated on 5 September 2014

SECOND SECTION

Applications nos 34327/06 and 45165/06 Feride GENÇ against Turkey and Mustafa DEMİRG AN and others against Turkey lodged on 28 July 2006 and 19 October 2006 respectively

STATEMENT OF FACTS

The applicants , Feride Genç and Mustafa Demirg an are Turkish nationals, who were born in 1971 and 1953 respectively. Before the Court, the applicants are represented by Mr. Senih Özay , a lawyer practicing in İzmir.

The case s concern the granting of permits to operate a gold mine in Ovacık , in the district of Bergama ( İzmir). The applicants live in Bergama and the surrounding villages .

The applicants allege d that, as a result of the Ovacık gold mine ’ s development and operation, they ha d suffered and continue d to suffer the e ffects of environmental damage.

A. The process of issuing the permits and the environmental impact assessment procedure

On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş. , received authorisation to begin prospecting for gold.

On 4 July and 12 August 1991 the Directorate of Mines at the Minis try of Mines and the Ministry for Forests issued the two required permits to the company.

On 14 January 1992 the İzmir Directorate of Public Works sent a letter to the Ministry of the Environment requesting its opinion on the Ovacık gold mine.

On 12 February 1992 the Ministry of Energy and Natural Resources issued the company with an operating permit for the Ovacık gold mine. This permit was valid for ten years and authorised the use of cyanide leaching in the gold extraction process.

In accordance with s ection 10 of the Environment Act ( Law n o. 2872 ) , the procedure for an environmental impact report was launched on the Ministry of the Environment ’ s initiative.

On 26 October 1992 a public meeting was held as part of the preparations for the impact report. During that meeting, the public criticised , inter alia , the tree felling and the use of explosives and sodium cyanide; they also expressed their concerns about the seepage of waste into underground water supplies.

After twenty-seven months of preparation, the impact report was submitted to the Ministry of the Environment. On 19 October 1994 , basing its decision largely on the conclusions of that report, the Ministry decided to issue an operating permit for the Ovacık gold mine.

B. Th e application of some of the residents of Bergama and the neighbouring villages for judicial review of the Ministry of the Environment ’ s decision of 19 October 1994 to issue a permit

On 8 November 1994 some of the residents of Bergama and the neighbouring villages applied to the İzmir A dministrative C ourt requesting judicial review of the Ministry of the Environment ’ s decision to issue a permit. They based their arguments, inter alia , on the dangers inherent in the company ’ s use of cyanide to extract the gold , and especially the risks of contamination of the groundwater and destruction of the local flora and fauna. They also criticised the risk posed to human health and safety by that extraction method .

On 2 July 1996 the A dministrative C ourt dismissed the request. It held that the gold mine fulfilled the criteria set out in the environmental impact report and that the decision in issue had been adopted in accordance with the authorisatio n procedure for environmentally sensitive projects.

On 25 April 1997, with a view to protecting public order and preventing disturbances and in view of the numerous protests which had followed the delivery of the A dministrative C ourt ’ s judgment, the İzmir provincial g overnor ordered that the mine ’ s operation be suspended for one month.

On 13 May 1997 th e Supreme Administrative Court , overturned the lower court ’ s judgment

On 15 October 1997 , in compliance with the Supreme Administrative Court ’ s judgment, the A dministrative C ourt annulled the Ministry of the Environment ’ s decision to issue a permit.

On 1 April 1998 the Supreme Administrative Court upheld the A dministrative C ourt ’ s judgment.

C. Enforcement of the Supreme Administrative Court ’ s judgment of 13 May 1997

By virtue of section 52(4) of Law no. 2577 on administrative procedure (“Law no. 2577”), the Supreme Administrative Court ’ s judgment of 13 May 1997 entailed ipso facto a stay of execution of the Ministry of the Environment ’ s decision to issue a permit.

In a letter of 26 June 1997, the İzmir Bar Association asked the İzmir provincial governor ’ s office to ensure that the Supreme Administrative Court ’ s judgment was enforced and, accordingly, to order that all operations be halted at the mine.

On 27 June 1997 the İzmir provincial governor ’ s office replied that there had been no final judgment and that the Ministry of Energy and Natural Resources had expressed its support for the continuing operation of the mine.

On 20 October 1997 the Ministry of the Environment was served with the Supreme Administrative Court ’ s judgment. On 23 October 1997 the Ministry invited the relevant authorities to reconsider the conditions attached to the operating permits in issue in view of the Supreme Administrative Court ’ s judgment.

On 27 February 1998 the İzmir provisional governor ’ s office ordered that the mine be closed. According to the documents submitted by the applicants, it is not clear whether the mine had stopped operating in compliance with the administrative courts decisions.

D . Other develo p ments

On 12 October 1998 , 28 January 1999 and 3 March 1999 , the company contacted various ministries in order to obtain a permit. Specifically, it claimed to have taken additional measures to ensure better safety in the gold mine ’ s operation and referred, inter alia , to a risk assessment report on this question drawn up by the British company Golder Associate s Ltd .

The then Prime Minister intervened directly with regard to the company ’ s request. On an application from him, the Supreme Administrative Court, in an a dvisory o pinion of 5 December 1999, ruled that its judgment of 1 3 May 1997 could not be interpreted as an absolute prohibition on the use of cyanide in gold mining operations and that there were grounds for taking specific circumstances into consideration.

In a separate development, the Prime Minister instructed the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”) in March 1999 to prepare a report assessing the potential impact of cyanide use in the gold-mining operations.

In October 1999 TÜBİTAK ’ s report was submitted. It had been prepared by ten scientists who were experts in environmental issues, environmental law, chemistry, hydrogeology, geology, engineering geology and seismology.

The report concluded that the risks to human life and the environment set out in the Supreme Administrative Court ’ s judgment had been completely removed or reduced to a level within the acceptable limits, given that the mine was to use environmentally friendly advanced technology based on the “zero discharge” principle and that the risk of adverse impact on the ecosystem was, according to scientific criteria, much lower than the maximum acceptable level.

1. Opinions of the Prime Minister and the Ministry of the Environment and the applications (including Mustafa Demir g an (no. 45165/06) for judicial review

On 5 January 2000 the Prime Minister submitted the TÃœBÄ°TAK report to the Ministry of the Environment, requesti ng its opinion on the operation of the gold mine in question.

On 31 January 2000 the Ministry indicated its approval of the mine ’ s activities , in the light of the report ’ s conclusions.

On 5 April 2000 the Prime Minister ’ s Office drew up a report on the operation of the mine . The report concluded that, having regard to the additional measures taken by the company, the conclusions of the TÜBİTAK report, the Ministry of the Environment ’ s favourable opinion and the opinion of the President ’ s Administration, which had emphasised the economic importance of an investment of this type, the operation of the mine could be authorised .

On 1 June 2001 the First Division of the İzmir Administrative Court gave judgment following an application for judicial review, brought by eighteen residents of Bergama includi ng Mustafa Demirg an , with regard to the report issued by the Prime Minister ’ s Office on 5 April 2000 . The Division decided to annul the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of the requ ested permits. It held that, notwithstanding the measures taken by the company, it had been found in judicial decisions which had become final that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine concerned 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 in issue could circumvent a final judicial decision and was in compatible with the principle of the rule of law.

2 . The p rovisional operating permit issued by the Ministry of Health and the applications (including Feride Gen ç (no. 34327/06)) for judicial review

On 22 December 2000 the Ministry of Health adopted a decision authorising continued use of the cyanidation process at the min e for an experimental one-year period. The company was notified of t his authorisation by the İzmir p rovincial g overnor ’ s o ffice on 24 January 2001 .

On 2 February 2001 a supervisory and audit committee was s et up at the İzmir p rovincial g overnor ’ s o ffice . The company began mining operations on 13 April 2001 .

On 12 February 2004 the Ministry of the Environment and Forest s extended the permit concerning “the chemical processing unit and waste pond ” for a period of three years.

In a judgment of 27 May 2004 , the Third Division of the Ä°zmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000 . In particular, it considered that the risks hi ghlighted in the judgment of 15 October 1997 were, inter alia , linked to the use of sodium cyanide in the gold mine concerned 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 pro cess . It also concluded that the issuing of the permit in issue was incompatible with the principle of the rule of law, in that that administrative decision was in reality intended to amend a judicial decision that had become final.

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

3 . The Council of Ministers ’ decision and the applicatio ns (including Mustafa Demirg an (no. 45165/06) for judicial review

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

On 30 July 2002 the Eighth Division of the Supreme Administrative Court declared inadmissible an application for judicial review brought by the İzmir Bar Association seeking annulment of the Council of Ministers ’ decision of 29 March 2002 on the ground of procedural irregularity.

On 7 March 2004 the Supreme Administrative Court, sitting as a full court, set aside the judgment of 30 July 2002 . In particular, it held that the Council of Ministers ’ decision had not been published in the Official Gazette and had not been made public, although it was clear that the resumption of the gold mine ’ s activities had been based on it. The Supreme Administrative Court held that, in view of the appellant ’ s inability to obtain a copy of the disputed decision, the court ought to have obtained one o f its own motion with a view to ensuring effective exercise of the judicial appeal.

On 23 June 2004 the Sixth Division of the Supreme Administrative Court ordered a stay of execution of the Council of Ministers ’ decision. The Prime Ministry appealed the stay of execution decision, however on 7 October 2004 the Supreme Administrative Court, sitting as a full upheld the stay of decision dated 23 June 2004.

On 27 August 2004 the Ministry of the Environment and Forests (“the Ministry”) sent a letter to the company, informing it of its favourable opinion on the final environmental impact report that the company had submitted .

Subsequently, on 29 September 2004 the company submitted its de velopment plans to the Ministry for the ir approval.

On 30 September 2004 the Ministry consulted other relevant authorities about the development plans.

On 30 November 2004 an action was brought against the decision of the Ministry , by which a favourable opinion was issued on the environmental impact report submitted by the company.

On 14 March 2005 the Ä° zmir Administrative Court issued a n interim measure and ordered the stay of the enforcement of the decision delivered by the Ministry .

On 14 April 2005 the Ä° zmir Regional Administrative Court decided to set aside the stay of e nforcement .

On 20 May 2005 the İ zmir Governor ’ s office granted the necessary permits to the company and the goldmine started operating on the same date.

On 29 March 2006, the Sixth and Eight Divisions of the Supreme Administrative Court , sitting as a joint chamber annulled the Council of Ministers ’ decision . On 21 February 2008, upon the appeal of the Prime Ministry, the Supreme Ad ministrative Court, sitting as a full court upheld the decision of 29 March 2006.

4 . Criminal complaints against the relevant authorities

In 2004, some of the residents of Bergama including Mustafa Demirg an also applied to the Ankara public prosecutor ’ s office against the prime minister and some other members of the Parliament for non-enforcement of the administrative courts ’ decisions.

The complainants were invoking arbitrariness and professional misconduct stipulated under Articles 228 and 240 of the Criminal Code then in force respectively.

On 30 September 2004 the public prosecutor gave a non-prosecution decision. The complainants appealed against the non-prosecution decision. On 2 February 2005 the Sincan Assize Court dismissed the appeal request.

E. Relevant domestic law and practice

The relevant domestic law and practice in force at the material time can be found in Taşkın and Others ( Taşkın and Others v. Turkey, no. 46117/99, 10 November 2004 ).

COMPLAINTS

Relying on Article 6 § 1 of the Convention, the applicants allege that the authorities ’ refusal to comply with the administrative courts ’ decisions infringed their right to effective judicial protection in the determination of their civil rights.

They further allege that both the national authorities ’ decision to issue a permit to use a cyanidation process in a goldmine and the related decision-making process gave rise to a violation of their rights guaranteed by Articles 2 and 8 of the Convention. Finally, under Article 13 of the Convention, the applicants complain about the lack of an effective domestic remedy whereby their above-mentioned complaints could be redressed.

QUESTIONS TO THE PARTIES

1 . Have the applicant s exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, d o the applicants have the right to apply to the Compensation Commission established by Law no. 638 4 which provides a remedy for non-enforcement of the domestic court decisions?

2. Did the n ational authorities comply with the administrative court decisions that cancelled the licences to operate the gold mine, in accordance with the requirements of Article 6 § 1 of the Convention? In this regard, the Government are requested to inform the Court about the recent status of the various proceedings which were pending at the time when the applications were lodg ed .

3 . In the light of the case-law of the Court (see, in particular Taşkın and Others v. Turkey, no. 46117/99, 10 November 2004; and Öçkan and Others v. Turkey, no. 46771/99, 28 March 2006), did the national authorities take the necessary measures to ensure the effective protection of the right of the applicants to respect for private and family life guaranteed by Article 8 of the Convention?

Appendix

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by

34327/06

28/07/2006

Feride GENÇ

Bergama

Senih ÖZAY

45165/06

19/10/2006

Mustafa DEMÄ° RG AN

28/07/1953

Bergama

Birsel LEMKE

07/07/1950

Balıkesir

Mehmet AYMAN

10/05/1966

Bergama

Osman ALTIPARMAK

20/08/1961

Bergama

Yılmaz ACAR

13/01/1976

Bergama

Yaşar KARAAĞAÇ

01/05/1956

Bergama

Halit YILMAZ

20/09/1935

Bergama

Tarkan GÃœRBÃœZ

02/02/1975

Bergama

Nur i ttin ÃœNAL

20/10/1959

Bergama

Ömer TURAN

03/10/1968

Bergama

Mustafa D Ö GER

04/08/1948

Bergama

Senih ÖZAY