CASE OF GENÇ AND DEMIRGAN v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström
5. The applicants were born in 1971, 1953 and 1976 respectively and live in Bergama, İzmir. 6. On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş., received an authorisation to begin prospecting for gold. Subsequently, the company was authorised to use cyanide leaching in the gold extraction process by the Ministry of Energy and Natural Resources. 7. On 19 October 1994 the Ministry of the Environment decided to issue an operating permit to the company for the Ovacık gold mine. 8. On 2 July 1996 the İzmir Administrative Court dismissed a case brought before it for the annulment of the permit of 19 October 1994. On 13 May 1997 the Supreme Administrative Court quashed the first-instance judgment and decided that the permit should be annulled. It referred to the State’s obligation to protect the right to life and to a healthy environment and assessed the physical, ecological, aesthetic, social and cultural effects of the mining activity in question as described in the environmental impact report and the various expert reports which had been submitted to it. It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use. It concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity. 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 for the mine. On 27 February 1998 the İzmir provisional governor’s office ordered that the mine be closed. On 1 April 1998 the Supreme Administrative Court upheld the judgment of 15 October 1997. 9. On 5 April 2000 the Prime Minister’s office drew up a report on the mine. It concluded that operations at the mine could be authorised, having regard to the additional measures taken by the company, the conclusions of a report by the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”), the Ministry of the Environment’s favourable opinion and an opinion of the President’s Administration, which had emphasised the economic importance of an investment of that type. 10. On 1 June 2001 the İzmir Administrative Court delivered a judgment on an application for judicial review of the report of the Prime Minister’s office, brought by twenty-five residents of Bergama, including the second and third applicants, Mr Mustafa Demirgan (Demircan) and Mr Yılmaz Acar. The administrative court decided to set aside the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of permits. Notwithstanding the measures taken by the company, the court held that judicial decisions which had become final had found that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine 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 at issue could lead to the circumvention of a final judicial decision and was incompatible with the principle of the rule of law. 11. On 29 March 2006 the Supreme Administrative Court upheld the judgment of 1 June 2001 in so far as it had been brought by nineteen of the plaintiffs, including the second and third applicants and dismissed a rectification application by the Prime Minister’s office on an unspecified date. 12. In the meantime, on 22 December 2000 the Ministry of Health decided to authorise the continued use of the cyanidation process at the mine for an experimental period of one year. The company re-started mining operations on 13 April 2001. 13. In a judgment of 27 May 2004, the İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000 in a case brought by fourteen people, including the first applicant, Ms Feride Genç. In particular, it considered that the risks highlighted in the judgment of 13 May 1997 were, inter alia, linked to the use of sodium cyanide in the gold mine 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 question had been incompatible with the principle of the rule of law as that administrative decision had in reality been intended to amend a judicial decision that had become final. 14. On 2 February 2005 the Supreme Administrative Court upheld the judgment of 27 May 2004 and dismissed a rectification application by the Ministry of Health on 3 April 2006. 15. On 29 March 2002 the Cabinet of Ministers took a “decision of principle”, stating that the gold mine situated in the area of Ovacık and Çamköy, in the district of Bergama (İzmir) and belonging to the Normandy Madencilik A.Ş. company, could continue operations. The decision was not made public. 16. On 23 June 2004 the Supreme Administrative Court ordered a stay of execution of the Cabinet decision in a case brought by twenty-four plaintiffs, including the second and third applicants. The Supreme Administrative Court found that the Prime Minister’s decision had been unlawful as the environmental impact assessment report which had allowed for the operating of the gold mine had been previously annulled. The Prime Minister’s office objected. 17. On 18 August 2004 referring to the decision of 23 June 2004, the İzmir governor’s office ordered the closure of mine. 18. On 7 October 2004 the Supreme Administrative Court upheld the stay of execution of 23 June 2004. 19. On 20 May 2005 the goldmine began operating again under a permit of the same date issued by the İzmir governor’s office. 20. On 22 March 2006 the Supreme Administrative Court annulled the decision of the Cabinet of Ministers a decision which was upheld on 21 February 2008 by the Supreme Administrative Court. 21. According to the documents in the case file, various sets of other proceedings were brought between 2006 and 2012 by other residents of Bergama against various administrative authorities and Normandy Madencilik A.Ş. before the administrative courts, some of which are still ongoing. The gold mine was in operation until at least 2014.