SECOND SECTION
CASE OF ÇÖÇELLİ AND OTHERS v. TÜRKİYE
(Application no. 81415/12)
JUDGMENT
Art 6 § 1 (administrative) • Fair hearing • Domestic court’s reliance on report by independent experts, with no professional, functional or hierarchical ties to the defendant authorities or the intervening parties • Language used in report, while possibly capable of raising doubts as to experts’ neutrality, not sufficient to indicate bias against the applicants from a subjective standpoint • Adequate procedural safeguards to dispel doubts as to objective impartiality of experts • No issue with domestic court’s treatment of report and applicants’ related grievances
STRASBOURG
11 October 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Çöçelli and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Carlo Ranzoni,
Egidijus Kūris,
Pauliine Koskelo,
Jovan Ilievski,
Saadet Yüksel,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 81415/12) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Memik Çöçelli, Mr Hüseyin Sığlam and Mr Salman Akdeniz (“the applicants”), whose particulars are set out in the appended table, on 9 October 2012;
the decision to give notice to the Turkish Government (“the Government”) of the complaints under Article 6 § 1 of the Convention (alleged lack of sufficient time to challenge the composition of an expert panel, alleged partiality of the experts and alleged lack of a proper response by the courts in addressing the applicants’ grievances with respect to the experts) and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 13 September 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicants’ complaints under Article 6 § 1 of the Convention that they were not given sufficient time to challenge the composition of an expert panel, that the expert report produced in the course of proceedings on the basis of which the domestic courts decided the case lacked neutrality, and that the applicants’ grievances in that respect were not properly dealt with by the courts.
THE FACTS
2. The applicants live in Kahramanmaraş and were represented by Mr M. Horuş, a lawyer practising in Ankara.
3. The Government were represented by their co-Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye.
4. The facts of the case may be summarised as follows.
Background
5. On 3 May and 5 May 2006 the Ministry of Environment and Forests (“the Ministry”) approved environmental impact assessment (“EIA”) reports submitted by two companies for the construction and operation of two cement factories in the villages of Çöçelli and Akkoyunlu in the district of Pazarcık in Kahramanmaraş respectively.
6. According to the information submitted by the Government, which was not contested by the applicants, the first applicant lives 9 kilometres away from the first and 2.5 kilometres away from the second factory; the second applicant lives 15 kilometres away from the first and 22 kilometres away from the second factory; and the third applicant lives 13 kilometres away from the first and 20 kilometres away from the second factory, measured on the basis of the distance by road between the respective applicants’ homes and the factories.
Administrative proceedings
7. On 28 June 2007 the applicants brought two sets of proceedings against the Ministry before the Gaziantep Administrative Court challenging the Ministry’s decisions to approve the EIA reports in question. The applicants argued, inter alia, that the construction and operation of the factories would have a significant impact on the area’s agricultural and water resources, putting their and other residents’ livelihoods at risk. They further relied on their constitutional right to live in a healthy environment and on Article 8 of the Convention. At the date of the institution of the proceedings, the construction of the first factory was complete, and it had been given a trial permit on 14 June 2007. The second factory, on the other hand, was not yet operational.
8. Even though the two sets of proceedings were conducted separately, the relevant procedural steps (such as the appointment of experts, on-site inspections (keşif) and other interim decisions) were more or less identical given the identical nature of the activities and the short distance between the factories, which appears to be about 7 km. In both sets of proceedings, the cement companies and the headmen of the eleven villages in the vicinity of the cement factories were allowed to intervene in the proceedings as third parties on behalf of the Ministry. Moreover, the headmen of the eleven villages challenged the applicants’ standing in those proceedings, arguing that they did not have sufficient interest to object to the construction of the factories given that they lived some distance away from them and that they were at no risk of harm from the planned operations. Those objections appear not to have been allowed by the Gaziantep Administrative Court, which examined both cases on the merits (see paragraphs 20 and 28 below).
Proceedings regarding the first factory (E.2007/659)9. In an interim decision of 7 December 2007, the Gaziantep Administrative Court decided that an on-site inspection and expert assessment were necessary and delegated those duties to one of its judges (hereinafter “the delegated judge”).
10. Accordingly, in an interim decision of 16 April 2008, the delegated judge selected three academic experts in the fields of environmental engineering, urban planning and agricultural engineering respectively, all of whom were required to be present during the on-site inspection. He set the date of the on-site inspection for 6 May 2008 and notified all the parties of that decision, including the experts. In the notification it was indicated that the parties had three days from the date of the notification of the decision to object to the composition of the panel of experts, and that if they did not object, they had to be present for the on-site inspection.
11. The applicants’ lawyer received the notification on 22 April 2008 and objected to the composition of the panel of experts on 25 April 2008. In his objection he stated that the time allocated for objecting to the choice of experts had not been sufficient given that the on-site inspection had been scheduled for 6 May 2008, leaving almost no time for the delegated judge to consider the objection, take a decision and appoint new experts in time for the on-site inspection to be carried out should the objection be upheld. He submitted that despite his objection, he was now obliged to attend the on-site inspection because he would only learn whether his objection to the experts had been rejected or upheld on that date, and in the event that his objection was rejected, he did not want to risk not attending the on-site inspection. He argued that the short time between his objection and the date of the on-site inspection prevented him from exercising his procedural rights within the meaning of Article 6 of the Convention.
12. Concerning the experts themselves, he first objected to having an expert in urban planning on the panel, arguing that the EIA report had been prepared by four mining engineers and three geological engineers. An urban planner, in his view, would not be competent to review an assessment made by such experts. Secondly, he challenged the neutrality of all the experts, arguing that the expert in agriculture had advised businesses in other proceedings (notably in the case of Bergama) and defended their interests; that the environmental engineering expert was a member of the Environmental Engineering Science Board of the Turkish Union of Engineers and Architects’ Chambers (TMMOB), and similar considerations were applicable to him; and that the third expert had likewise given favourable views on large-scale projects, such as the cancelled international exhibition centre in İzmir. The applicant annexed to his objection certain news articles featuring the third expert’s views with respect to that project.
13. On 1 May 2008 the delegated judge dismissed the applicants’ objection, holding that their arguments did not warrant a change in the composition of the panel of experts. It does not appear that that decision was notified to the applicants or their lawyer.
14. On 5 May 2008 the delegated judge notified the experts that they would be required to assess the following in their reports:
(i) whether the cement factory in question would damage the environment, vegetation, plant species and water resources, including rivers and ground and surface water;
(ii) whether the location chosen for the factory was appropriate; and
(iii) whether the factory would be damaged in a possible earthquake in view of its location in an earthquake belt.
15. On 6 May 2008 the delegated judge visited the site of the factory together with the experts, the parties and the interveners. The minutes of the inspection, which were signed by all those present without any reservation, indicated, inter alia, that the experts had been duly sworn in, that their duties had been explained and that the parties and the interveners had expressed no objection to the experts or to their competence and that they would submit their objections and any observations they wished to make after being sent the report.
16. On 27 July 2008 the experts submitted a 70-page assessment of the EIA report on the first factory. Their findings can be summarised as follows.
(i) Most of the pollution created by the cement factory would be dust and CO2 emissions but the dust control filters integrated into the manufacturing process would prevent 99.9% of the dust from being released into the air and the factory would conform to the national and European standards in this respect in so far as the developer had pledged to keep emissions below the proscribed levels. Nevertheless, as was the case with most cement production processes, there would be considerable dust emissions during the production and transport of the raw materials. The experts estimated those emissions to be 30.30 kg per hour for the digging and explosion process, 36.65 kg per hour for the transportation process and 47.63 kg per hour for the remaining processes. They noted that the developer had undertaken to seal the roads used by the trucks with asphalt and cement to reduce dust emissions. In any event, heavily concentrated dust would only affect the immediate environment of the factory as it would settle relatively quickly rather than being carried away by the wind.
(ii) The plant was situated at the juncture of areas of high and medium earthquake risk but the construction had followed the relevant earthquake regulations.
(iii) The land in the area was not suitable for irrigated farming and in any event, its value in terms of agriculture was marginal.
17. Besides their technical evaluations, the experts dedicated a part of their report to responding to or assessing the applicants’ objections to the cement factories. For example, the experts criticised the applicants for making the irrational claim that certain plant and animal species native to the region would be endangered by the cement factories’ operations, given that those species were found not only where the cement factories were situated but spread over an area of 764,200 hectares (p. 25 of the report). They considered the applicants not to have been “honest” with the court because their claim that the dominant winds in the region were north and east-south-east had been misleading since official records showed the dominant winds to be primarily west-north-west and secondarily north and south (p. 27). They accused the applicants of “doom-mongering” for presenting the court with a list of diseases that the inhabitants could develop as a result of harmful emissions from the cement factory (p. 34). They noted that such claims had been made by ignoring science and without taking into account the production technology employed in the factory. Moreover, they considered the applicants’ claim that the EIA information meeting with the local residents had only been for show to be a symptom of general distrust in the system (p. 38). They also commented that the applicants’ reliance on Article 8 of the Convention and on the Court’s judgment in Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004‑XII) had been completely irrelevant as the factory neither restricted residents’ communications nor interfered with their homes (p. 44). Furthermore, they noted that the supporting documents submitted by the applicants with their submissions had been perfunctory, some of them merely being information downloaded from the Internet (p. 45). They disputed the applicants’ claim that the cement factory would have traumatic effects on the villagers, saying that this was a fantasy (p. 49) and that they were presenting a pessimistic picture completely cut off from reality which attested either to their bad faith or to their ignorance of cement production processes (p. 50). Lastly, they accused them of provoking chaos in the region because of their distrust of the system, raising issues where there were none (p. 52).
18. The experts concluded that as long as the cement factory complied with its undertakings regarding the precautionary measures outlined in the EIA report, its impact on the environment would be minimal, and that it would contribute to the development of the regional and national economy.
19. After the expert report was sent to the parties, the applicants lodged an objection to the report on 25 July 2007. After reiterating their objections to the composition of the panel of experts and the grievances they had regarding the setting of the date for the on-site inspection too close to the appointment of the experts (see paragraph 11 above), they challenged the content of the report. In that respect they argued that the assessment made by the experts had been incomplete as they had only looked at best-case scenarios without evaluating the long-term effects of the factory on the environment and health of the local population; that the experts had made assessments outside and beyond the questions that had been asked by the court, such as evaluations of the well-foundedness of their case; that their assessment had been biased as it contained inappropriate and hostile comments in response to the claims in their submissions (they referred in that connection to each and every comment they considered to be hostile or biased). They therefore asked the court to designate a new expert committee and to conduct a fresh on-site inspection in their presence.
20. After holding a hearing, the Gaziantep Administrative Court dismissed the case on 29 May 2009 on the basis of the conclusions in the expert report, namely its finding that the cement factory would not cause harm to water resources or agriculture in the region; that air pollution would be prevented or mitigated by dust filters; and that the location chosen for the factory had been appropriate. The court then went on to state that the applicants’ objection to the expert report did not render it unreliable. Finally, the court noted that the establishment of the cement factory would benefit the economy and create employment opportunities for local people.
21. The applicants appealed against the decision of 29 May 2009 to the Supreme Administrative Court, reiterating the arguments they had submitted to the first-instance court regarding the insufficiencies in the expert report and the partiality of the experts (see paragraph 19 above). They further submitted that the first-instance court had failed to respond to their objections in that respect.
22. On 20 April 2010 the Supreme Administrative Court dismissed the appeal without responding specifically to the applicants’ arguments.
23. A subsequent request for rectification lodged by the applicants was rejected in a similar fashion by the Supreme Administrative Court.
Set of proceedings regarding the second factory (E. 2007/660)24. The proceedings regarding the second factory progressed in a similar fashion to those regarding the first factory. The interim decisions leading up to the selection of experts and the notification of the composition of the panel of experts and of the on-site inspection to the parties were identical to those in the first set of proceedings (see paragraphs 9-10 and 14-15 above). The on‑site inspection in respect of the second factory was conducted at the same day as that of the first factory. The only difference was that the applicants received the notification of the composition of the panel of experts and the on-site inspection on 6 May 2008, that is to say, the same date on which the on-site inspection was to be held.
25. On 27 June 2008 the experts submitted a 55-page report to the Gaziantep Administrative Court. The report contained very similar technical assessments to those in the other report (see paragraph 16 above), concluding that the EIA was appropriate.
26. Besides their technical assessments, the experts analysed and responded to the arguments set out in the applicants’ submissions. They considered the applicants’ claims that the factory was located in an area of high earthquake risk to be “deliberately misleading” in so far as the factory was in a medium earthquake risk zone (p. 12 of the report). They made a similar assessment with respect to the applicants’ objections to the factory on the basis of wind direction (p. 20), noting that the applicants had not been “honest” with the court since they had claimed the dominant wind to be the exact opposite of that shown in the official records. The experts further stated that the applicants had distorted the wording of the environment regulations in their objection when they had argued that the law prohibited noise levels above the standards allowed by the regulations, despite the fact that the relevant law only required the developers to take the requisite precautions (p. 26). Moreover, they considered the applicants’ assertion that the EIA information meeting with the local residents had only been for show to be a symptom of their distrust of the system (p. 28). Lastly, the experts made the same comments as those in their other report with respect to the applicants’ complaint under Article 8 of the Convention (see paragraph 17 above).
27. After the report was sent to the parties, the applicants lodged an objection to the report dated 25 July 2007. The content of their objection was very similar to that of their objections to the other report (see paragraph 19 above).
28. The Gaziantep Administrative Court held a hearing on the same date as the proceedings regarding the first factory, and dismissed the case on 29 May 2009 on the basis of the conclusions set out in the expert report. It further held that the applicants’ objection to the expert report did not render it unreliable.
29. The applicants lodged two separate appeals against that decision, which were dismissed by the Supreme Administrative Court for the same reasons as in the first case on 20 April 2010 and 20 March 2012.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
code of Civıl procedure30. Article 31 of the Code of Administrative Procedure (Law no. 2577), as in force at the relevant time, referred to the former Code of Civil Procedure (Law no. 1086) in relation to matters such as challenges to judges and their withdrawal and recusal, the appointment of experts, the obtaining of evidence and on-site inspections.
31. The former Code of Civil Procedure provided for the automatic exclusion of a judge from sitting in a case (Article 28), and also for recusal at the request of the parties. The latter provision and other relevant provisions in the former Code of Civil Procedure, in so far as relevant, provided as follows:
Article 29 (grounds for recusal)
“The judge may recuse himself or parties may apply for his recusal if
...
2. he has declared his opinion [on the case prior to the delivery of judgment];
...
5. he has a hostile relationship or rivalry with one of the parties;
6. there is reasonable doubt as to his impartiality.”
Article 34 (procedure for refusal)
“A party which is aware of the grounds for recusal of a judge must submit an application for recusal at the latest at the first hearing. An application for recusal may be made later only if the grounds for recusal have become known to the party requesting recusal at that later stage. In such a case, the application must be submitted immediately at the first hearing after the date of becoming aware of those grounds. Any application that is not submitted within the time-limits specified herein shall not be heard.”
Article 275 (expert examination)
“Where the examination of the case requires technical or expert knowledge, the court shall appoint an expert. No expert shall be heard in respect of matters which are within the general and legal competence of a judge.”
Article 277 (experts)
“Experts shall be subject to the same grounds of recusal as judges. The judge hearing the case shall render a decision on the application for recusal of an expert on the basis of the case file ... Applications for recusal shall be made within three days following the selection of an expert.”
Article 279 (experts)
“After reviewing the arguments of the parties, the judge shall determine the questions to be put to the expert. The expert cannot question one of the parties in the absence of the other party ...”
Article 281 (experts)
“...
The expert report should contain the names of the parties, the issues the experts have been assigned to determine, the facts of the case in so far as it concerns the issues referred to the experts, the experts’ reasoning and their conclusions. The report should indicate any disagreements between the experts. An expert in a minority position may submit a separate report.”
Article 283 (experts)
“The judge may put further questions to the experts for the purpose of complementing or clarifying incomplete or ambiguous information in the report. The parties may ask the judge to ask such questions within one week after the expert report has been sent to them.”
Article 286 (experts)
“The judge shall not be bound by the vote or opinion of an expert.”
Relevant domestıc case-law submıtted by the government32. The Government noted that Article 277 of the Code of Civil Procedure did not set out a specific procedure for objecting to experts. Accordingly, an objection could be made in writing or in person during a hearing, within the time-limits. The Government submitted two decisions of the Supreme Administrative Court, the first one dated 8 July 2009 (E.2009/111, K. 2009/4371) in which that court had remitted the case to the first-instance court for a fresh examination because the parties had not been notified of the appointment of experts and the second dated 30 December 2009 (E. 2010/2009, K. 2010/6966) in which the Supreme Administrative Court had quashed a first-instance court decision because one of the parties had not been notified of the appointment of experts and the court had failed to examine that party’s oral objection, which had been recorded in the minutes of the on-site inspection.
33. The Government secondly submitted that an objection to experts could be raised at any time during the proceedings, including the appeal stage, if the grounds for recusal arose or became known by the parties later. They referred to two decisions on the subject, one of which concerned an objection raised by a party to the composition of a panel of experts after receiving their report (decision of 28 November 2019, E. 2019/16478, K. 2019/12461) and the second of which concerned an objection examined during the appeal stage regarding the lack of neutrality of an expert (decision of 4 May 2017, E.2015/10866, K. 2017/3616).
34. The Government thirdly submitted that where a court decided to conduct an on-site inspection, the inspection had an important place in the proceedings. The on-site inspection report contained all the statements of the parties, the issues as determined by the delegated judge and the questions to be put to the experts. Litigants could ask for matters to be taken into consideration during the on-site inspection, could state their opposing opinions and could even refuse to sign the report if it did not accurately reflect their position. The Government also submitted decisions of the Supreme Administrative Court which accepted that an on-site inspection report not signed by a party could not be used as a basis for a decision, whereas an on‑site inspection report signed without a reservation could (decisions of 29 May 2009 (E. 2009/1863 K 2009/5202), 16 May 2018 (E.2016/7890, K. 2018/4916) and 6 December 2018 (E.2016/9131, K.2018/8156)).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
35. Relying on Article 6 § 1 of the Convention, the applicants complained that the administrative proceedings had been unfair in that:
(1) the courts had not given them sufficient time to challenge the composition of the expert panel;
(2) the quality and neutrality of the expert panel’s reports, which had played a decisive role in the administrative courts’ decisions, were questionable as the experts had made a number of biased comments against the applicants (such as accusing them of doom-mongering, of being closed‑minded against technology and development, and of trying to deliberately mislead the court); and
(3) the applicants’ grievances in that respect had not been addressed by the courts, which had refused to order an alternative expert opinion and had not given any reasons for their decisions.
36. Article 6 § 1 of the Convention reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
AdmissibilityCompatibility ratione personae37. The Government contested the applicants’ victim status, arguing that the proceedings before the Gaziantep Administrative Court had not related to direct and personal rights of the applicants and that their action had taken the form of an actio popularis, which fell outside the scope of the Convention guarantees. They submitted in that connection that, in accordance with the practice of the Turkish administrative courts, an action for annulment could be lodged by anyone with a sufficient interest with the purpose of challenging the alleged unlawfulness of an administrative act and without having to prove that his or her rights were directly affected by it. The Government submitted in that connection that the applicants had neither argued that they had suffered actual harm from the operation of the proposed factories nor established that they lived sufficiently close to the factory locations to be significantly affected. Lastly, the Government argued that the applicants had failed to present reasonable and persuasive evidence as to the possibility of a violation affecting them personally. To illustrate that point further, the Government argued that the headmen of the eleven villages that were located closer to the factories had intervened on behalf of the administrative authorities and nobody from those villages had opposed the construction of those factories.
38. The applicants did not respond specifically to the Government’s objections on this point.
39. The Court refers to the principles enunciated in its case-law with respect to victim status (see, for example, Bursa Barosu Başkanlığı and Others v. Turkey, no. 25680/05, §§ 106-12, 19 June 2018). It reiterates that in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of.
40. The Court notes that the applicants were party to the proceedings before the Gaziantep Administrative Court, and as such they were directly affected by the alleged shortcomings complained of in those proceedings.
The Court also notes that the administrative courts dismissed the objection made by the intervening parties with respect to the alleged actio popularis nature of the applicants’ claim by accepting that the applicants had standing and examining the cases on their merits (see Bursa Barosu Başkanlığı and Others, cited above, § 117). Having regard to the foregoing, the Court is satisfied that the applicants have adequately demonstrated that they were directly affected by the decisions of the administrative court in respect of the compatibility of the EIA reports on the factories with the legal requirements and finds that they may claim to be victims in respect of their Article 6 § 1 complaint.
Compatibility ratione materiae41. In the Government’s view the application was also not compatible ratione materiae with the provisions of the Convention inasmuch as Article 6 § 1 of the Convention only applied to “disputes”, whereas in the present case the procedure for appointing the experts had been a non-contentious procedure. The Government further argued that the fact that the applicants had subsequently accepted the competence of the experts and signed the on-site inspection report without any reservations attested to the absence of a real dispute concerning the subject matter of their application before the Court.
42. The Court reiterates that the applicability of Article 6 § 1 in civil matters depends firstly on the existence of a dispute (“contestation” in French). Furthermore, the dispute must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law (see, generally, Naït-Liman v. Switzerland [GC], no. 51357/07, § 106, 15 March 2018). Such a dispute implies the existence of a disagreement which must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. In this connection, the Court reiterates that the spirit of the Convention requires that the word “dispute” should not be construed too technically and that it should be given a substantive rather than a formal meaning (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 29, 20 March 2009, and Cipolletta v. Italy, no. 38259/09, § 32, 11 January 2018, with further references).
43. Turning to the present case, the Court notes that there existed a real dispute between the applicants and the opposing parties which raised questions in relation to the lawfulness of the EIA reports under the applicable legislation and to the applicants’ right to live in a healthy environment. In the proceedings before the Gaziantep Administrative Court, the applicants not only relied on the general obligation of the State to protect the environment but also complained of a direct and specific threat to their health and well‑being, in particular in respect of air pollution that would emanate from factories close to where they lived. It therefore follows that the outcome of the impugned proceedings related to the applicants’ “civil rights” (see Taşkın and Others v. Turkey, no. 46117/99, §§ 130-34, ECHR 2004‑X; Okyay and Others v. Turkey, no. 36220/97, §§ 65-68, ECHR 2005‑VII; and Bursa Barosu Başkanlığı and Others, cited above, §§126-28 for similar conclusions in cases against Türkiye where the challenges to EIA reports by the applicants were considered by the Court to have related to “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention). Furthermore, the dispute in the present case was genuine and serious, as shown by the fact that Gaziantep Administrative Court allowed the actions and examined them on the merits.
44. The Court disagrees with the Government’s argument that the procedure for the appointment of experts should be regarded as a non‑contentious stage in the proceedings. On the contrary, it can be seen from the relevant provisions of the former Code of Civil Procedure and the case‑law examples submitted by the Government that the parties to proceedings are notified of the appointment of experts and such appointment may be contested. Moreover, the failure to observe certain procedural safeguards, such as notifying the parties of the appointment of experts, has been found by the Supreme Administrative Court to constitute grounds to quash a judgment (see paragraphs 32-34 above). Lastly, as regards the Government’s argument that the applicants did not object to the composition of the panel of experts during the on-site inspection, the Court considers that this question would be more appropriately dealt with in the context of the requirement of exhaustion of domestic remedies and/or abuse of the right of application rather than the applicability of Article 6 § 1 of the Convention. Accordingly, the Court will examine that issue below.
Non-exhaustion of domestic remedies and abuse of the right of application(a) The parties’ arguments
45. The Government argued that the applicants had failed to exhaust domestic remedies as they had not maintained their objections to the experts during the on-site inspection and had, moreover, explicitly accepted the competence of those experts by signing the minutes of the on-site inspection (see paragraph 15 above). Furthermore, making reference to other decisions delivered by the Court in which the applications concerned had been rejected on account of the applicants’ failure to inform the Court about essential aspects, the Government pointed to the fact that applicants had not informed the Court of their explicit acceptance of the experts on the day of the on-site inspection and argued that the case should therefore be considered an abuse of the right of application.
46. The applicants disagreed with the Government and argued that they had not only objected to the composition of the panel of experts at the appropriate stage in the proceedings but they had also objected to the content of the expert reports after receiving them, yet the courts had disregarded their objections in that regard.
(b) The Court’s assessment
47. The Court observes at the outset that a distinction must be drawn between, on the one hand, the applicants’ complaint regarding the lack of sufficient time and opportunity to object to the appointment of the experts before they were assigned to the case and carried out their assessment, and, on the other hand, the applicants’ complaint regarding the experts’ lack of neutrality, which arose because of the way in which they referred to the applicants in their report and the domestic courts’ response to the applicants’ grievances. The Court will accordingly deal with them separately.
(i) Lack of sufficient time and opportunity to challenge the composition of the expert panel
48. The Court does not consider it necessary to decide whether the fact that the applicants did not challenge the competence of the experts during the on-site inspection raises an issue as to the exhaustion of domestic remedies or abuse of the right of application, as it considers that this part of their complaint is in any event inadmissible for the reasons given below.
49. The Court observes that when the applicants received the names and specialities of the experts on the panel and the date of the on-site inspection in the first set of proceedings, they immediately objected to the composition of the panel, particularly because of the presence of an urban planner on the panel rather than an expert in mining or engineering and also because of their fear that the experts would not be neutral on account of their past expressed views. Because of the short period of time between the receipt of the notification and the date of the on-site inspection, the applicants argued that they had no choice but to attend to the on-site inspection. The Court has no reason to doubt this argument, given that the interim decision of the judge dismissing their objection in the first set of proceedings was given on 1 May 2008 and that it does not appear that they were notified of the decision beforehand. Likewise, the notifications of the appointment of the experts and the date of the on-site inspection were delivered to the applicants on the date of the on-site inspection in the second set of proceedings and it cannot be argued that the applicants could have raised an objection beforehand. That being so, and even though it was open to the applicants to maintain or raise their objections in respect of the composition of the panel of experts and the lack of opportunity for them to raise their objections ahead of the on-site inspection, they expressly stated in the minutes of the on-site inspection in both sets of proceedings that they had no objections to the experts themselves or to their competence. The case-law examples submitted by the Government indicate that any reservation indicated on the on-site inspection report would be taken into consideration by the trial or appellate courts and that the courts could not rely on an on-site inspection report without addressing those reservations (see paragraph 34 above).
50. In these circumstances, the Court considers that the applicants’ acceptance of the experts when they were given an explicit and genuine opportunity to challenge their appointment during the on-site inspection, and the lack of explanation on their part for their omission, indicate either that they retracted their initial complaint in respect of the experts and the lack of sufficient time or opportunities to participate in the procedure for their appointment or that at the time of the on-site inspection they no longer considered those matters to be problematic (see, mutatis mutandis, Sigurður Einarsson and Others v. Iceland, no. 39757/15, § 49, 4 June 2019).
Whatever their reasons may have been, the Court considers that this part of the applicants’ complaint under Article 6 of the Convention is manifestly ill-founded and must be declared inadmissible, in accordance with Article 35 §§ 3 and 4 of the Convention.
(ii) The experts’ lack of neutrality, allegedly on account of the way they referred to the applicants in their report and the domestic courts’ insufficient response to those grievances
51. The Court notes that this part of the applicants’ complaint relates to a new issue concerning the experts’ alleged lack of neutrality that arose when they submitted their report, on account of its content and particularly on the way in which the experts had assessed the applicants’ claims. In both sets of proceedings the applicants objected to the reports both at first instance and on appeal. It therefore follows that this part of the complaint cannot be dismissed for non-exhaustion of domestic remedies or abuse of the right of application. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
MeritsThe parties’ arguments52. The applicants maintained their arguments.
53. The Government did not dispute that experts must be neutral in order to comply with the requirement of a fair hearing under Article 6 § 1 of the Convention and that the requirement that a tribunal must be “impartial” would apply to experts. However, in the present case, they considered that under neither the objective nor the subjective test could it be demonstrated that the experts had lacked the requisite impartiality. They submitted that the experts had taken an oath of impartiality during the on-site inspection. The fact that the experts had cited the applicants’ arguments and assessed the questions they had been directed to consider by the court in the light of those arguments could not be taken as a sign of bias on their part. As far as the statements and allegedly biased comments highlighted by the applicants in those reports were concerned, the Government argued that the courts were not bound by the opinions of experts and that in any event, experts could not be expected to be completely objective since they were asked to give an “opinion” on the matter. In any event, the Government submitted that experts who lacked the necessary legal training could not be expected to be reserved and circumspect in their language either.
Relying on Devinar v. Slovenia (no. 28621/15, § 47, 22 May 2018), the Government submitted that in assessing whether a hearing had been fair in the context of alleged bias on the part of experts, it was important to consider not only the conduct of the experts in the proceedings but also how the domestic court that had sought the expert opinion in the first place had treated their report. Given that the first-instance court had only relied on the technical findings of the experts in the present case and had rejected the objections of the applicants in respect of the experts’ impartiality, the Government contended that the shortcomings alleged by the applicants had not affected the overall fairness of the proceedings.
The Court’s assessment(a) General principles
54. The Court reiterates that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial “tribunal” and does not expressly require that an expert heard by that tribunal should fulfil the same requirements (see Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007, and Letinčić v. Croatia, no. 7183/11, § 51, 3 May 2016). However, the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court’s assessment of those issues. For example, the Court has already held that an opinion of a medical expert, as it falls outside the judges’ probable area of expertise, is likely to have a dominant influence on the assessment of the facts and to be considered an essential piece of evidence (see Feldbrugge v. the Netherlands, 29 May 1986, § 44, Series A no. 99; Mantovanelli v. France, 18 March 1997, § 36, Reports of Judgments and Decisions 1997‑II; and Augusto v. France, no. 71665/01, § 51, 11 January 2007). In that connection the Court has recognised that a lack of neutrality on the part of a court-appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bönisch v. Austria, 6 May 1985, §§ 30-35, Series A no. 92, and Brandstetter v. Austria, 28 August 1991, § 33, Series A no. 211).
55. The Court reiterates that the position occupied by the experts throughout the proceedings, the manner in which they perform their functions, and the way the judges assess their opinions are relevant factors to be taken into account in assessing whether the principle of equality of arms has been complied with (see Sara Lind Eggertsdóttir, § 47; Letinčić, § 51; and Devinar, § 47, all cited above). In this connection, the Court has found that the Convention does not bar the national courts from relying on expert opinions drawn up by specialised bodies in resolving the disputes before them when this is required by the nature of the contentious issues under consideration. What it does require, however, is that the requirement of neutrality on the part of an appointed expert be observed, that the court proceedings comply with the adversarial principle and that the applicant be placed on a par with his or her adversary, namely the State, in accordance with the principle of equality of arms (see Letinčić, cited above, § 61).
56. Lastly, the Court refers to the general principles in respect of lack of impartiality, which are summarised in Morice v. France ([GC], no. 29369/10, §§ 73-78, ECHR 2015) and Denisov v. Ukraine ([GC], no. 76639/11, §§ 60‑65, 25 September 2018).
(b) Application of those principles to the present case
57. The Court notes that in the previous cases where the neutrality of experts was in issue, it was required to determine whether the fact that in‑house experts (see Devinar, cited above, § 51) or an expert body composed of persons employed or appointed by the opposing party (see, among other authorities, Sara Lind Eggertsdóttir, cited above, § 48; Placì v Italy, no. 48754/11, § 75, 21 January 2014; Sarıdaş v. Turkey, no. 6341/10, § 36, 7 July 2015; and Korošec v. Slovenia, no. 77212/12, § 54, 8 October 2015) justified from an objective point of view the applicant’s fears that they might lack the requisite impartiality. However, that factor alone was not decisive in so far as the Court had further regard to whether the doubts raised by appearances could be objectively valid and whether the principles of equality of arms and of adversarial proceedings had been observed in the proceedings. For instance, in Letinčić (cited above, § 65), which involved the question of expert evidence in civil proceedings, it was not the hierarchical links between the experts themselves so much as the applicant’s exclusion from the process of commissioning and obtaining the expert report that became the focal point of the Court’s examination (see also Sarıdaş, cited above, §§ 40-42, and Krunoslava Zovko v. Croatia, no. 56935/13, §§ 45-47, 23 May 2017).
58. The circumstances of the present case are therefore distinguishable from the above-mentioned cases since the experts in the applicants’ case did not have any professional, functional or hierarchical ties to the applicants’ opponent or the intervening parties in the proceedings and neither were the applicants excluded from the process of commissioning or obtaining the reports in question. Rather, the issue in the present case is whether the alleged personal bias perceived in the statements the experts made in their report was such as to raise justifiable concerns about their neutrality. While observing that Article 6 of the Convention does not require the same degree of independence and impartiality of court-appointed experts as it does of a “tribunal”, the Court nevertheless reiterates the importance of the neutrality that court-appointed experts are expected to observe given that their opinions are influential on the outcome of the proceedings.
59. This is particularly so in the present case because the experts were entrusted with the assessment of the compliance of an industrial activity with environmental requirements, a technical field of which the administrative court in question had no specialist knowledge. It can therefore be said that the experts had a dominant influence on the outcome of the dispute since their conclusions with respect to the EIA reports, while not being officially binding on the court, were directly decisive in resolving the dispute. Given their important role in the proceedings, experts should be expected to inspire confidence in the parties in the proceedings by not giving any appearance of bias. The Court therefore needs to draw on the principles set out in its case‑law regarding the requirement of objective and subjective impartiality inherent in the concept of a tribunal to the extent that they are relevant and appropriate to its assessment of the role occupied by the experts and the manner in which they performed their functions in the proceedings.
60. With respect to the manner in which the experts performed their functions, and whether procedural safeguards ensuring their neutrality were observed throughout the proceedings, the Court makes the following observations. It notes that the experts, who were academics, did not have professional, functional or hierarchical ties to the State authorities acting as the defendant or to the factories acting as intervening parties. Furthermore, they were duly sworn in before performing their duty; and it was not suggested that they obtained evidence or questioned one party in the absence of the other or that the parties were prevented from putting questions to the experts. Their reports, which were sufficiently lengthy, addressed the technical questions they were directed to consider by the court. It is true that some of the expressions and language used in the report, such as calling the applicants’ approach dishonest and careless, or comparing the applicants’ concerns about the impact of the factories on the environment to “doom‑mongering” or “fantasy” might raise doubts about their neutrality. However, in the Court’s view, those statements, regrettable as they are, are not sufficient to indicate that the experts were biased against the applicants from a subjective point of view, particularly given that the experts, who were academics in the engineering field, cannot be held to the same standards expected of judges when it comes to drafting opinions with the utmost reserve and circumspection.
61. As regards the question of whether the applicants’ doubts as to the experts’ neutrality may be regarded as objectively justified in the circumstances of the case, the Court has to determine whether, quite apart from the conduct of the experts, there are ascertainable facts which may raise doubts as to their impartiality. As is the case with the objective test for assessing whether a tribunal is objectively impartial, the standpoint of the person concerned is important but not decisive. What is decisive is whether any fears of a lack of impartiality can be held to be objectively justified (see, mutatis mutandis, Micallef v. Malta [GC], no. 17056/06, § 96, ECHR 2009). The Court further reiterates that the objective test is functional in nature as it mostly concerns hierarchical or other links between the judge and other participants in the proceedings (see Bellizzi v. Malta, no. 46575/09, § 54, 21 June 2011).
62. In the present case, the Court has observed that there is no evidence of any functional or hierarchical connection between the experts on the one hand and the opposing party and interveners on the other. The Court further notes that the case was ultimately decided by an administrative court consisting of a bench of three judges, whose independence and impartiality have not been called into question. It is of further importance that domestic law provided the judges adjudicating the case with sufficient procedural means and safeguards to disqualify the experts should they consider their report to be partial or otherwise biased. The existence of those safeguards, such as expert opinion not being binding on the courts, the judges’ powers to evaluate evidence freely and their freedom to order a second expert report of their own motion should they consider it necessary, are all guarantees that would dispel any concerns on the part of an objective observer that the applicants’ doubts about the experts’ neutrality might be justified.
63. Lastly, as regards the question of how the domestic court treated the expert report in question, the Court notes that the administrative court based both of its verdicts on the technical findings made in the report. Furthermore, the applicants’ grievances in respect of the alleged lack of neutrality on the part of the experts and their request to obtain a new report from different experts were dismissed as the court did not consider that those concerns raised issues that affected the reliability of the report. The fact that the administrative court did not commission a new expert report and that it endorsed the findings of the experts does not therefore pose a problem for the Court in so far as the experts were independent from the defendant and intervening parties and the applicants’ doubts concerning the experts’ lack of neutrality were not objectively justified in the present case (see, mutatis mutandis, Kanal v. Turkey, no. 55303/12, §§ 42-43, 15 January 2019; and compare and contrast Korošec, cited above, § 56; and see also, Hamzagić v. Croatia, no. 68437/13, § 41, 9 December 2021 and the cases cited therein).
64. In these circumstances, the Court finds that there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning the experts’ alleged lack of neutrality admissible and the remainder of the application inadmissible;Holds that there has been no violation of Article 6 § 1 of the Convention.Done in English, and notified in writing on 11 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Jon Fridrik Kjølbro
Registrar President
APPENDIX
List of applicants:
Application no. 81415/12
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Memik ÇÖÇELLİ
1952
Turkish
Kahramanmaraş
2.
Salman AKDENİZ
1970
Turkish
Kahramanmaraş
3.
Hüseyin SIĞLAM
1967
Turkish
Kahramanmaraş