Taskin and Ors. v. Turkey

Application No. 46117/99; (2006) 42 EHRR 50
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The applicants lived in the area near Ovacik where the Normandy Madencilik A.Ş company built a gold mine.  The Ministry of Energy and Natural Resources issued a permit for the mine in 1992 for ten years. The Ministry also authorized the use of cyanide leaching during the gold extraction. Following the Environmental Act, the Ministry of the Environment prepared a report on the mine, which the Ministry of the Environment used in 1994 to justify issuing an operating permit by the Ministry of the Environment.

The applicants sought judicial review of the Ministry of the Environment’s decision to issue a permit based on the risks that were posed by the cyanide leaching process. These risks included groundwater contamination and damage to the local wildlife, as well as dangers posed to human health. The Supreme Administrative Court concluded that the mine’s safety measures were insufficient to prevent harm to the population. Since the permit did not serve the public interest, the Supreme Administrative Court ordered that it be rescinded.

In June 1997, the Izmir provincial governor’s office refused to acknowledge the Supreme Administrative Court’s order and continued to support the gold mine. By January of 1998, the applicants sued the Ministries, the Prime Minister, and the Izmir governor in the Ankara District Court for their continued support of the mine.  Following this, the governor ordered the closing of the mine. Criminal charges were also brought against the mining company but were dropped in 2001.

After initially being dismissed by the Ankara District Court in 1999, the applicants’ suit was reinstated in 2001. On application from the Prime Minister, the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”) created a report detailing additional safety measures that the mining company had taken after the Supreme Administrative Court’s decision to rescind the permit. The report claimed that the Court’s safety concerns had been sufficiently addressed. The report approved by the Ministry of the Environment and the Prime Minister, who also approved reinstating the mining operation in April 2000. After subsequent challenges, the Supreme Administrative Court upheld this report on September 26, 2001.

On April 13, 2001, with the authorization of the Ministry of Health, the mine resumed operation and use of the cyanidation process for an experimental period of one year. The permit was extended for three years, but on May 27, 2004, the Third Division of the Izmir Administrative Court set aside that permit, holding that it violated the rule of law by amending a judicial determination.

In March 2002, the Council of Ministers issued a decision which was not publicized that the mine could continue operating. The Council based the decision in large part on the economic benefits of the mine, the TÜBİTAK report, and changes to mines made since the Supreme Administrative Court’s 1991 decision. On June 23, 2004, the Supreme Administrative Court ordered that the Council of Minister’s decision be stayed. In August of that year, the Izmir provincial governor complied with the Court’s ruling and ordered that mining operations cease.

The Court held that the Turkish Government violated Article 8 (guaranteeing the right to private and family life) of the Convention for the Protection of Human Rights and Fundamental (the “Convention”). Article 8 applied to environmental pollution that can affect persons’ private and family life, even if such pollution did not have serious health-related consequences. The Court determined that the Supreme Administrative Court’s report that the mine and the sodium cyanide was a threat to the surrounding population sufficed to make Article 8 applicable. Moreover, the Court found that the Supreme Administrative Court’s finding that the mining permit was contrary to the public interest showed that substantively, the Government had violated Article 8. There were also procedural violations when the mine continued to operate in spite of the Supreme Administrative Court’s 1997 order revoking the permit and in 2002 when the Council of Ministers refused to publicize the decision to allow the mine to continue operations.

The Court also held that the Government had violated Article 6 §1 (guaranteeing a fair hearing by an impartial tribunal for civil rights cases) of the Convention. The Plaintiffs’ civil right at issue was the right to protection of their physical integrity against the harms from the gold mine. This right was recognized by Turkish law as a part of the right to a healthy and well balanced environment. The possible harm that could have resulted from the mine, which was recognized by the Supreme Administrative Court, demonstrated that this civil right was genuinely at issue. Moreover, the Court determined that the Government’s violation of Article 6 §1 was evidenced by the facts that that the Government did not execute certain judicial orders within the prescribed time frame and that certain permits reopening the gold mine had circumvented prior judicial decisions.

The Court did not consider the Plaintiffs’ allegations under Articles 2 and 13 of the Convention, as they were essentially the same as their claims under Articles 6 and 8.

Under Article 41, giving the Court the authority to demand compensation for the victims, the Court granted each plaintiff EUR 3,000.

“In the instant case, the Court notes that the authorities’ decision to issue an operating permit for the Ovacık gold mine was annulled by the Supreme Administrative Court (see paragraph 26 above). After weighing the competing interests in the present case against each other, the latter based its decision on the applicants’ effective enjoyment of the right to life and the right to a healthy environment and concluded that the permit did not serve the public interest (ibid.). In view of that conclusion, no other examination of the material aspect of the case with regard to the margin of appreciation generally allowed to the national authorities in this area is necessary.” Paragraph 117.

“124. The Court would emphasise that the administrative authorities form one element of a State subject to the rule of law, and that their interests coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see, mutatis mutandis, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p.511, § 41).

125. This finding appears all the more necessary in that the circumstances of the case clearly demonstrate that, notwithstanding the procedural guarantees afforded by Turkish legislation and the implementation of those guarantees by judicial decisions, the Council of Ministers, by a decision of 29 March 2002 which was not made public, authorised the continuation of production at the gold mine, which had already begun to operate in April 2001 (see paragraph 75 above). In so doing, the authorities deprived the procedural guarantees available to the applicants of any useful effect.” Paragraphs 124-125

“132. The Court considers that such a right is recognised in Turkish law, as is clear, in particular, from the right to live in a healthy and balanced environment . . . . Accordingly, the applicants could arguably maintain that they were entitled under Turkish law to protection against damage to the environment caused by the activities of the mine in question. Without any doubt, there existed a genuine and serious “dispute”.” Paragraph 132

“133. As to whether the right in issue was a civil right, the Court notes that the scale of the risk presented by production at the Ovacık gold mine, through the cyanidation leaching process, had been established by the Supreme Administrative Court on the basis of the previous reports. That finding enables the Court to conclude that the applicants’ right to protection of their physical integrity was directly at stake. Similarly, in bringing an application for judicial review, the applicants had used the single means available to them for complaining of infringement of their right to live in a healthy and balanced environment and of interference with their lifestyle (see, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 46-47, ECHR 2004-III). At the same time, it is undeniable that, once the Supreme Administrative Court had given its judgment cancelling the permit, any administrative decision taken to circumvent it opened the way to compensation (paragraphs 93 and 96 above). Consequently, the outcome of the proceedings before the administrative courts, taken as a whole, may be considered to relate to the applicants’ civil rights.” Paragraph 133.

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