PARTLY DISSENTING OPINION OF JUDGE KRENC

1. While agreeing with the finding of a violation of Article 6 § 1 of the Convention in respect of the two last applicants, much to my regret I am unable to follow the majority’s finding that the first four applicants’ complaint under Article 6 § 1 of the Convention is inadmissible as incompatible ratione materiae with this provision. I will briefly explain my point of view.

2. At the outset, I would like to reiterate the well-established case-law of the Court, according to which:

“Article 6 § 1 does not guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Fayed v. the United Kingdom , 21 September 1994, § 65, Series A no. 294 ‑ B, and Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands , 28 September 1995, § 49, Series A no. 327-A, and Roche , cited above, § 120). This Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (ibid.).” ( See Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012.)

Two important elements flow from this statement.

Article 6 § 1 is only a procedural support for the domestic civil rights

3. The first is that Article 6 § 1 of the Convention has no substantive content. It does not contain any material requirement. All it does is provide for the fairness of judicial proceedings which includes, inter alia , the principles of adversarial proceedings and equality of arms in favour of the parties involved in a national dispute.

Article 6 differs from the other provisions of the Convention, in particular from Article 8 which requires there to have been an “interference” with private life, family life or the home in order to be applicable. This means that the nuisance caused by an activity must attain a minimum level of severity to trigger the applicability of Article 8. With regard to Article 6, no threshold is required. For Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” concerning a “civil right” and the outcome of the proceedings in issue must be directly decisive for the right in question ( see Grzęda v. Poland [GC], no. 43572/18, § 257, 15 March 2022).

What matters is what the national courts said when interpreting and applying the domestic law

4. The second element is that, as regards Article 6 § 1 of the Convention, “the Court must take as a starting-point the provisions of the domestic law and their interpretation by the domestic courts” ( see Károly Nagy v. Hungary [GC], no. 56665/09, § 65, 14 September 2017). In other words, what matters under Article 6 § 1 is what the national courts said when interpreting the domestic law.

5. In the present case, the national courts granted standing to all the applicants and examined their claims on the merits. They did not raise any objections regarding whether the applicants could rely on the constitutional right to live in a healthy environment [6] , despite some of them not living in the vicinity of the mine concerned.

A questionable approach

6. However, the present judgment makes the applicability of Article 6 conditional on the applicants demonstrating an interference in their daily life or, at least, on the existence of a proximity link with the activity concerned. This seems problematic to me.

First, it fosters confusion between Article 6 (procedural right) and Article 8 (substantive right) of the Convention (see paragraph 3 above).

Secondly, it overlooks that, more and more, the doors of the national courts in environmental cases are now open to associations and even individuals without it being necessary to demonstrate the existence of personal prejudice. It is up to the national authorities to define the conditions for access to environmental justice.

Thirdly, the Court is an international court. In this regard, I truly wonder how the Court can itself determine which applicant is directly affected or not by the civil right at stake. How can the Court determine this impact from Strasbourg and contradict the domestic courts? What are the criteria used by the Court for so ruling? Is it (only) the vicinity to the activities or the site concerned? At what distance will the Court draw the line between being affected and not being affected?

Taking subsidiarity seriously

7. The Convention system is based on the principle of subsidiarity. It is of utmost importance that the Court take this principle seriously and give it its full meaning. This principle concretely implies that when a national court has ruled that applicants can invoke a civil right under domestic law before it, the Court cannot contradict this finding under Article 6 of the Convention.

Protection should not be less in Strasbourg than under the domestic system

8. In the field of Article 6 which is – I do insist – a procedural right with no substantive content, the Court cannot reduce the protection afforded at national level.

In Okyay and Others v. Turkey (no. 36220/97, § 68, ECHR 2005-VII), which also concerned a dispute about environmental protection at the domestic level, the Court expressly held that “the concept of a ‘civil right’ under Article 6 § 1 [could not] be construed as limiting an enforceable right in domestic law within the meaning of Article 53 of the Convention”.

More generally, the Court has confirmed that “[t]hrough its system of collective enforcement of the rights it establishes, the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level (see United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 28, Reports of Judgments and Decisions 1998-I), in accordance with Article 53” (see Vera Fernández-Huidobro v. Spain , no. 74181/01, § 112, 6 January 2010).

This means that subsidiarity is aimed at reinforcing the national level of protection, not at diminishing it.

Due attention to environmental justice

9. “In today’s society the protection of the environment is an increasingly important consideration” ( see Fredin v. Sweden (no. 1) , 18 February 1991, § 48, Series A no. 192). This statement was expressed by the Court over thirty years ago. Since then, the ever-growing importance attached to the right to live in a healthy environment at both national and international level is a reality that nobody can ignore.

Moreover, we cannot lose sight of the fact that this right is taking on an increasingly collective and global dimension, in particular concerning access to information and environmental impact assessments. The possibility of invoking the right to live in a healthy environment is not necessarily linked under domestic law to a strict geographical criterion.

A contrast with the existing case-law

10. The Court has already stated that it has to be “flexible” – the Court used the word “ souplesse ” in French – concerning the applicability of Article 6 §1 of the Convention when it comes to environmental issues in cases brought by associations.

In Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox et Mox v. France ((dec.), no. 75218/01, 28 March 2006), the Court concluded that, while the purpose of the proceedings in issue had fundamentally been to protect the general interest, the “dispute” raised by the applicant association also had a sufficient link with a “right” to which it could claim to be entitled as a legal entity. The Court considered that the issue of the public’s right to be informed and to participate in the decision-making process where an activity involving a risk to health or the environment was concerned lay at the heart of the applicant association’s claims and on that basis it found Article 6 § 1 applicable.

The judgment in Association Burestop 55 and Others v. France (nos. 56176/18 and 5 others, §§ 53-60, 1 July 2021) confirmed this case-law.

11. The Okyay judgment (cited above) deserves special attention as it concerned individuals, like the present case, and related to Turkish law. In Okyay the applicants’ exposure to the risks posed by three thermal powerplants (the applicants lived around 250 kilometres away from them) was clearly not a decisive factor for determining the applicability of Article 6 § 1 of the Convention. I refer to paragraphs 65-68 of the Okyay judgment, which constituted a significant evolution of the case-law compared to the judgment delivered a long time ago in Balmer-Schafroth and Others v. Switzerland (26 August 1997, §§ 39-40, Reports 1997-IV).

I regret that the present judgment departs from the approach in Okyay .

A troubling consequence

12. Ultimately, the majority’s approach leads to a rather surprising outcome. All six applicants were parties to the same national proceedings and were able to rely on the same constitutional right. Nonetheless, the majority consider that only the last two applicants have the right to a fair hearing, while the first four applicants are not entitled to such a right.

This means that those applicants, who were involved in lengthy proceedings (2004-18) in which they were able to invoke their constitutional right to live in a healthy environment, could be deprived of all the fundamental guarantees (independence and impartiality of the tribunal, right to a reasoned decision, principles of adversarial proceedings and equality of arms, and so on), without the Court finding it wrong from the perspective of Article 6 § 1 of the Convention.

With all due respect for my esteemed colleagues, I must confess that this troubles me.

*

13. In conclusion, and to be clear, I do not consider that the applicability conditions of Article 6 § 1 of the Convention should be disregarded when environmental issues are at stake. That is not the point I am making. My concern relates to the fact that the Court cannot deny the right to a fair hearing under Article 6 § 1 to parties to national proceedings in which they were allowed to rely on their constitutional right to live in a healthy environment. Where such a right has been recognised by the national courts, a fair hearing must be afforded.

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.

Arif Ali CANGI

1964

Turkish

Ä°zmir

2.

ErtuÄŸrul BARKA

1950

Turkish

Ä°zmir

3.

Ömer Turgut ERLAT

1958

Turkish

Ä°zmir

4.

Oya OTYILDIZ

1958

Turkish

Ä°zmir

5.

Muammer SAKARYALI

1957

Turkish

Ä°zmir

6.

Mustafa SAKARYALI

1939

Turkish

UÅŸak

[1] The intervener referred to the following decisions of the Supreme Administrative Court: decisions nos. 2011/1374E and 2011/796K of 21 September 2011 of the 14th Chamber, and decisions nos. 2001/415E and 2001/737K of 19 October 2001 of the General Assembly of Administrative Proceedings Divisions.

[2] Decisions nos. 2011/13296E and 2011/450K of 15 July 2011 of the 14th Chamber; decisions nos. 2010/1097E and 2012/3815K of 27 June 2012 of the 6th Chamber; and decisions nos. 2016/4786E and 2017/2860K of 28 September 2017 of the General Assembly of Administrative Proceedings Divisions.

[3] Decisions nos. E.2015/1575 and K.2016/124 of 25 January 2016 of the 6th Chamber.

[4] The intervener referred to decision no. 2013/6260 of 13 April 2016 of the Constitutional Court in Ayşe Sevtap Uzun , in which that applicant’s access to a court complaint about a mining permit in the city in which she resided had been declared inadmissible on account of the lack of victim status.

[5] In particular, the intervener referred to decision no. 2014/5809 of 10 December 2014 in Tezcan Karakuş Candan and Others ; judgment no. 2014/1767 of 6 December 2017 in Arif Ali Cangı and Others ; and decision no. 2015/19256 of 8 May 2019 in Adnan Ayan and Others .

[6] Article 56 of the Constitution provides: “ Everyone has the right to live in a healthy, balanced environment.”