Cyanide bij goudwinning bedreigt leefomgeving dorpelingen - Mensenrechtenhof veroordeelt Turkije voor verlening vergunning (en)

Press release issued by the Registrar

CHAMBER JUDGMENT - ÖÇKAN AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Öçkan and Others v. Turkey (application no. 46771/99).

The Court held unanimously that:

• • 

  there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;
• • 

  there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention; and
• • 

  it was not necessary to examine separately the complaints under Articles 2 (right to life) and 13 (right to an effective remedy).

Under Article 41 (just satisfaction), the Court awarded 3,000 euros (EUR) to each applicant for non-pecuniary damage, or a total sum of EUR 945,000. It also awarded EUR 5,000 to all the applicants jointly for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicants are 315 Turkish nationals living in Bergama or the surrounding villages.

The case concerns the granting of permits to operate a goldmine in Ovac?k, in the district of Bergama (Izmir).

In 1992 the limited company E.M. Eurogold Madencilik (which subsequently became known as Normandy Madencilik A.?.) obtained the right to prospect for gold. The permit was valid for 10 years and also authorised use of the cyanide leaching process for gold extraction. In 1994, on the basis of an environmental-impact report, the Ministry of the Environment gave the company a permit to operate the goldmine at Ovac?k.

The applicants, and other inhabitants of Bergama, asked for the permit to be set aside, citing the dangers of the cyanidation process used by the operating company, the health risks and the risks of pollution of the underlying aquifers and destruction of the local ecosystem. Their application was refused at first instance, but in a judgment of 13 May 1997 the Supreme Administrative Court allowed it. Referring to the conclusions of the impact study and other reports, the Supreme Administrative Court held that in view of the goldmine’s geographical position and the geology of the region the operating permit was not in accordance with the general interest on account of the risks for the environment and human health.

In application of that judgment, Izmir Administrative Court set aside the decision to grant the mine an operating permit on 15 October 1997. Its judgment was upheld by the Supreme Administrative Court on 1 April 1998.

On 27 February 1998 the Izmir provincial governor’s office ordered that the mine be closed down.

In October 1999, at the Prime Minister’s request, the Turkish Institute of Scientific and Technical Research (TÜB?TAK) produced a report on the impact of using cyanide for gold extraction at the mine, stating that the risks referred to by the Supreme Administrative Court had been removed or reduced to a level lower than the acceptable limits. On the basis of that report a number of ministerial decisions to issue or renew operating permits were taken, and on 13 April 2001 the operating company began its mining activities. The applicants challenged those decisions in the Turkish courts, obtaining a stay of execution. Some of the applications concerned are at present pending in the Turkish courts.

On 29 March 2002 the Cabinet decided “as a principle” that the operating company could continue its activities, but the Supreme Administrative Court ordered a stay of execution of that decision on 23 June 2004 pending a judgment on an application to set it aside. Pursuant to that judgment, the Izmir provincial governor’s office ordered the mine to cease gold extraction in August 2004.

The Normandy Madencilik company submitted a final impact study upon which the Ministry of the Environment and Forestry expressed a favourable opinion at the end of August 2004.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 25 September 1998. It was transmitted to the Court on 1 November 1998.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,

András Baka (Hungarian),

Ireneu Cabral Barreto (Portuguese),

Riza Türmen (Turkish),

Volodymyr Butkevych (Ukrainian),

Danute Jo?ien? (Lithuanian),

Dragoljub Popovi? (citizen of Serbia and Montenegro), judges,

and also Stanley Naismith, Deputy Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants alleged that both the granting by the national authorities of a permit to operate a goldmine using the cyanidation process and the related decision-making process had infringed their rights under Articles 2 and 8 of the Convention. They further alleged that the administrative authorities’ refusal to comply with the decisions of the administrative courts had infringed their right to effective judicial protection, relying on Articles 6 § 1 and 13.

Decision of the Court

The Court pointed out that it had already examined a similar case concerning the granting of permits to operate the same goldmine; it had on that occasion found a violation of Article 8 and Article 6 § 1 (see the Court’s Chamber judgment of 10 November 2004 in the case Ta?kin v. Turkey, application no. 46117/99).

Article 8

With regard to the substantive content of the decision to authorise the mine’s operations, the Court saw no good reason to depart from the conclusions reached by the Turkish courts to the effect that such a decision was in no way consistent with the public interest.

With regard to the decision-making process, the Court noted that the decision to grant an operating permit had been preceded by a series of investigations and studies conducted over a long period. A meeting to inform the population of the region had been organised. The applicants and the inhabitants of the region had had access to all the relevant documents, including the study in issue. The Supreme Administrative Court had based its decision in its judgment of 13 May 1997 to set aside the operating permit on those studies and reports. However, although that judgment had become enforceable at the latest when it was served on the administrative authorities on 20 October 1997, the mine’s closure had not been ordered until 27 February 1998, more than 10 months after delivery of the judgment and four months after it was served.

With regard to the period after 1 April 1998, the Court noted the administrative authorities’ refusal to comply with the court decisions and domestic legislation, and the lack of a decision, based on a new environmental-impact report, to take the place of the one which had been set aside by the courts.

Moreover, despite the procedural safeguards laid down by Turkish legislation and the practical effect given to those safeguards by judicial decisions, on 29 March 2002, in a decision which was not made public, the Cabinet had authorised the continuation of the activities of the goldmine, which had already begun operating in April 2001.

In those circumstances, the Court considered that the authorities had deprived the procedural safeguards protecting the applicants of all useful effect. Turkey had thus failed to discharge its obligation to guarantee the applicants’ right to respect for their private and family life. The Court accordingly concluded unanimously that there had been a violation of Article 8.

Article 6 § 1

The Court noted that the judgment given by the Supreme Administrative Court on 13 May 1997, setting aside the operating licence, had not been enforced within the time prescribed.

Moreover, on the basis of ministerial authorisations issued at the direct prompting of the Prime Minister, the company had resumed operating the mine on an experimental basis on 13 April 2001. That resumption had had no legal basis and amounted to circumvention of a judicial decision. Such a situation was incompatible with the rule of law and the security of legal relations.

That being so, the Court considered that the Turkish authorities had failed to comply effectively and within a reasonable time with the judgment given by Izmir Administrative Court on 15 October 1997 and upheld by the Supreme Administrative Court on 1 April 1998, thus depriving Article 6 § 1 of all useful effect. The Court accordingly held unanimously that there had been a violation of the Convention in that regard.

Articles 2 and 13

The Court considered that it was not necessary to examine the applicants complaints raised under Articles 2 and 13 as they had already been examined under Articles 8 and 6 § 1.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press contacts:

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.