Communicated on 5 September 2014
SECOND SECTION
Applications nos 34327/06 and 45165/06
Feride GENÇ against Turkey
and Mustafa DEMİRGAN and others against Turkey
lodged on 28 July 2006 and 19 October 2006 respectively
STATEMENT OF FACTS
The applicants, Feride Genç and Mustafa Demirgan 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 cases 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 alleged that, as a result of the Ovacık gold mine’s development and operation, they had suffered and continued to suffer the effects 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 Ministry 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 section 10 of the Environment Act (Law no. 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. The 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 Administrative Court 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 Administrative Court 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 authorisation 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 Administrative Court’s judgment, the İzmir provincial governor ordered that the mine’s operation be suspended for one month.
On 13 May 1997 the Supreme Administrative Court, overturned the lower court’s judgment
On 15 October 1997, in compliance with the Supreme Administrative Court’s judgment, the Administrative Court annulled the Ministry of the Environment’s decision to issue a permit.
On 1 April 1998 the Supreme Administrative Court upheld the Administrative Court’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 developments
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 Associates 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 advisory opinion of 5 December 1999, ruled that its judgment of 13 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 Demirgan (no. 45165/06) for judicial review
On 5 January 2000 the Prime Minister submitted the TÜBİTAK report to the Ministry of the Environment, requesting 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 including Mustafa Demirgan, 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 requested 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 incompatible with the principle of the rule of law.
2. The provisional operating permit issued by the Ministry of Health and the applications (including Feride Genç (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 mine for an experimental one-year period. The company was notified of this authorisation by the İzmir provincial governor’s office on 24 January 2001.
On 2 February 2001 a supervisory and audit committee was set up at the İzmir provincial governor’s office. The company began mining operations on 13 April 2001.
On 12 February 2004 the Ministry of the Environment and Forests 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 İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000. In particular, it considered that the risks highlighted 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 process. 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 applications (including Mustafa Demirgan (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 of 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 development plans to the Ministry for their 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 İzmir Administrative Court issued an interim measure and ordered the stay of the enforcement of the decision delivered by the Ministry.
On 14 April 2005 the İzmir Regional Administrative Court decided to set aside the stay of enforcement.
On 20 May 2005 the İzmir 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 Administrative 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 Demirgan 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 applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, do the applicants have the right to apply to the Compensation Commission established by Law no. 6384 which provides a remedy for non-enforcement of the domestic court decisions?
2. Did the national 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 lodged.
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 DEMİRGAN
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 GÜRBÜZ
02/02/1975
Bergama
Nurittin ÜNAL
20/10/1959
Bergama
Ömer TURAN
03/10/1968
Bergama
Mustafa DÖGER
04/08/1948
Bergama
Senih ÖZAY
Full & Egal Universal Law Academy