Information Note on the Court’s case-law No. 98
June 2007
Lemke v. Turkey - 17381/02
Judgment 5.6.2007 [Section II]
Article 8
Article 8-1
Respect for family life
Respect for private life
Failure by the domestic authorities to comply with orders of the administrative courts setting aside concessions to work a gold mine: violation
Facts: The case concerns the granting of permits to a company for the operation of a gold mine about 50 kilometres from where the applicant and her family live. Some local residents called for the withdrawal of the permits, claiming that the cyanide leaching process used by the mining company was hazardous. The Supreme Administrative Court upheld their request. However, the Ministry of Health adopted a decision authorising the continued exploitation of the mine on a trial basis, which decision was set aside by the Administrative Court. The Forestry Directorate authorised the mining to continue in the areas under its control, based on the ministerial decision. The Administrative Court adopted a decision suspending the effect of that authorisation. The Ministry of the Environment and Forestry issued the mining company with a favourable opinion following an environmental impact study. The Administrative Court nevertheless revoked the mining permit. The Council of Ministers authorised the company to continue mining gold and silver. The Supreme Administrative Court set aside that authorisation, emphasising that under environmental law and the directive on environmental impact studies, only the Ministry of the Environment and Forestry could introduce new provisions on the matter, certainly not the Council of Ministers. The decision was therefore against the law. It further considered that the favourable environmental impact study did not make the decision of the Council of Ministers any less illegal. Following an appeal by the administrative authorities on points of law, the case appears to be pending before the Supreme Administrative Court.
Law: Article 8 – Since the case of Taşkin and Others v. Turkey, no. 46117/99 (see Information Note no. 69), where the dangerous effects of a mining activity had been determined through an environmental impact assessment procedure in such a way as to establish a sufficiently close link with private and family life, Article 8 was applicable. The applicant and her family lived about fifty kilometres from the site of the impugned gold mining operation and she had been entitled under domestic law to take legal action to stop the exploitation of the mine, and had won her case. Her application was therefore to defend a specific right she had been acknowledged to have under domestic law, on which the Turkish courts had pronounced judgment. The Supreme Administrative Court had considered that the authorisation to exploit the mine was by no means in the general interest and that the safety measures the company had agreed to take did not suffice to eliminate the risk inherent in the activity. However, the mine had not been ordered to shut down until ten months after delivery of the judgment. Mining had started again and the Council of Ministers had authorised the company to pursue its extraction activities. It was not until three years after the mining activities had started again that the Ministry of the Environment and Forestry had issued the mining company with a favourable opinion following an environmental impact study. So the Council of Ministers had authorised the mining activities to go ahead without previously carrying out the proper surveys and studies to assess and make provision for the likely effects of those activities. Until such study had been completed the authorities had deprived the procedural guarantees available to the applicant of any useful effect: violation.
Article 6 § 1 – The Supreme Administrative Court had set aside the decision of the Council of Ministers, emphasising that under environmental law and the directive on environmental impact studies, it was for the Ministry of the Environment and Forestry, not the Council of Ministers, to authorise mining activities. The Supreme Administrative Court had likewise concluded that the decision of the Council of Ministers had disregarded the judicial decisions adopted on the matter and rendered them inapplicable. That had undermined the rule of law, of which certainty of the law was an essential part. Accordingly, the Council of Ministers' decision had amounted to a failure by the authorities to comply in practice and within a reasonable time with the decision of the Supreme Administrative Court: violation.
Article 41 – EUR 3,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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