Published on 26 April 2021
SECOND SECTION
Application no. 14684/18
Efgan ÇETİN and Others
against Turkey
lodged on 8 March 2018
communicated on 7 April 2021
SUBJECT MATTER OF THE CASE
The application concerns a geothermal energy plant in the vicinity of the first applicant’s olive orchard and the remaining applicants’ residences. On 27 March 2015 the applicants learned about the construction of the plant and its intended activity by chance in the course of discovery proceedings taking place in the context of other proceedings. On 6 May 2015 they submitted an inquiry with the Aydın Governor’s Office in the scope of the right to information Act and requested whether the relevant geothermal energy plant had gone through an environmental impact assessment procedure and the relevant administrative decisions in this regard. In its reply of 18 May 2015 the Governor’s Office stated that it had issued a decision of “environmental impact assessment not necessary” on 24 July 2014. On 19 June 2015 the applicants lodged a case against the Governor’s Office to challenge the decision of 24 July 2014 before the Aydın Administrative Court.
On 26 February 2016 the Aydın Administrative Court rejected the case as belated noting that the thirty-day time-limit for lodging an administrative fast-track lawsuit had started to run from 27 March 2015, that is to say when the applicants learned of the existence of the construction, and irrespective of the fact that the resolution of the Governor’s Office of 24 July 2014 had not been publicly announced. That being so, the court considered that the applicants’ request in the scope of the right to information act had not interrupted the running of the time-limit for bringing a case.
On 1 November 2017 the Constitutional Court dismissed the applicants’ individual application considering that the domestic court’s interpretation of the time-limits had not been excessively formalistic. As a result, the Constitutional Court considered the applicants’ complaint under Article 8 inadmissible for non-exhaustion of remedies.
Before the Court the applicants complain of an infringement with their right of access to a court on account of the administrative court’s allegedly formalistic interpretation of time-limits. They argue in that connection that since the decision not to require an environmental impact assessment report in relation to the impugned activity had been unannounced, they had to first inquire from the Governor’s office what type of decisions had been adopted by the administrative authorities in order to be able to bring a successful and informed law-suit. Under Article 8 of the Convention, and relying on an expert report taken out during the proceedings, the applicants complain about the potential harm that is likely to be caused to their lives, health and home and their inability to be informed of the decisions taken for the setting up of the plant.
QUESTIONS TO THE PARTIES
1. Did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, insofar as the Aydın Administrative Court rejected their action as out of time, without an examination on the merits (see generally Kurşun v. Turkey, no. 22677/10, § 103, 30 October 2018)? In particular, could the applicants be reasonably expected to lodge their case without knowing the decision of the administrative authorities with respect to the planned geothermal energy plant and whether or not the environmental impact assessment procedure had been invoked, bearing also in mind the requirement in the Turkish administrative law context that a motion for administrative law action should indicate the specific administrative measure against which such action is being taken (see section 3(2) and (3) of Law no. 2577 for formal requirements of a motion for an administrative law action and the consequences of not meeting those requirements as provided for in sections 14 and 15 of the same law)?
2. Is Article 8 of the Convention applicable in the circumstances of the present case?
3. If so, have the domestic authorities ensured that the decision-making process related to the development of the relevant geothermal plant involved appropriate measures in order to predict and evaluate the effects on the environment and to strike a fair balance between various conflicting interests at stake (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 128, ECHR 2003‑VIII, and Tătar v Romania, no. 67021/01, § 88, 27 January 2009)?
The parties are requested to submit case-law examples regarding the position taken by administrative courts in the calculation of time-limits for bringing a case against an industrial activity in the scope of the Environment Act where the planned activity and the decision of administrative authorities in relation to it have not been announced publicly/or in accordance with the requirements of the law.
They are also requested to indicate, again with examples from the domestic case-law, whether, in those situations mentioned above, the domestic courts accept an administrative law motion lodged by a litigant when he or she is unable to submit the documents mentioned in section 3 of Law no. 2577.
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