MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-36

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-36 Genç and Demirgan group v. Turkey (Application No. 34327/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)644; DH-DD(2024)1179, CM/Del/Dec(2020)1383/H46-23

 

Application	Case	Judgment of	Final on	Indicator for the classification
36220/97	OKYAY AND OTHERS	12/07/2005	12/10/2005	Complex problem
34327/06	GENÇ AND DEMIRGAN	10/10/2017	10/10/2017
25680/05	BURSA BAROSU BAŞKANLIĞI AND OTHERS	19/06/2018	03/12/2018

Case description

This group of cases concerns the failure of the national authorities to comply with administrative court decisions delivered in favour of the applicants between 1996 and 2014, annulling various permits required for the operation of a gold mine and a starch factory, and halting the operation ofthree thermal power plants on grounds of risk to public health and environment (violations of Article 6 § 1 in all cases and also of Article 8 in the case concerning the gold mine).[1]

Status of execution

The information provided by the authorities in response to the Committee’s previous decisions is summarised below (DH-DD(2021)644 and DH-DD(2024)1179).

Individual measures

At its September 2020 DH meeting, the Committee noted that individual measures in this group of cases were linked to the adoption of general measures.

General measures

a)     Previous examination by the Committee

At its last examination in 2020, the Committee invited the authorities to take specific measures, legislative or other, to prevent the circumventing of judicial decisions on environmental issues and to ensure that final judicial decisions or stay of execution decisions are implemented promptly, in line with the principles of the rule of law and legal certainty.

Stressing the member States’ positive obligation to protect human health and environment, the Committee invited the authorities to ensure that facilities planned to be established obtain Environmental Impact Assessment (EIA) reports and that existing facilities operate in line with the authorities’ above-mentioned positive obligations. The Committee invited further the authorities to provide comprehensive information on specific issues presented below under point d).

b)     Environmental Impact Assessment process

The authorities reiterated their previous submissions and indicated that Regulation on EIA dated 2022 has detailed provisions as regards EIA. According to this regulation, the relevant authorities shall announce to the public that an application was made for a project and that an EIA process has started; they shall also render the relevant file publicly available. The EIA application file goes to a commission, which decides on the outcome of the EIA process and fixes the date of a public participation meeting. The public participation meeting is organised by the relevant governorship. Article 11 of the regulation allows individuals and organisations to submit opinions as regards EIA reports. The Ministry of Environment, Urbanisation and Climate Change and the relevant Governor’s Office announce the decision of the EIA process, which is open to judicial review. The authorities underline that each stage of the EIA process is public.

The Ministry of Environment, Urbanisation and Climate Change may also render a “no EIA required” decision at the start of the project, which will allow the relevant project to start without EIA process. Articles 19 and 20 of the regulation provides that persons who begun construction or operation in the absence of decisions of either the “EIA approval” or “no EIA required”, would be subject to an administrative fine equal to 2% of the project cost and are under obligation to restore the scene of activity to its original state. The Ministry supervises the compliance with the EIA decision. The regulation provides for administrative fines in case a project is amended after the EIA decision. In case of air pollution, the fines are doubled.

The EIA report, which is one of the most important tools of sustainable development, is important in determining the positive and negative effects of the planned projects on the environment. The EIA process covers the measures to be taken in order to prevent the negative effects of the activities to be carried out or to minimise them to the extent that they do not harm the environment, to determine and evaluate alternative technologies which may regulate the harm to the environment, and to monitor the implementation of those projects. The EIA reports indicate the area affected by the project and its environmental characteristics.  The authorities submit that EIA has been applied in Türkiye since 1993 and the legislation, which is the basis of this process, has been prepared in line with the 2011 European Union EIA Directive, and has been updated for new situations emerging over time.

The authorities referred to several regulations adopted for the protection of environment and human health. A Monitoring Committee for Compliance with Environmental Legislation was established by the Ministry of Energy and Natural Resources, which foresees the monitoring of compliance of power plants with environmental legislation.

c)     Measures as regards implementation of domestic court judgments

The authorities reiterated that, under the Turkish Constitution, all authorities, including the executive and legislative powers, must comply with judicial decisions. They cannot, in any circumstances, modify them or defer their enforcement. According to the Administrative Procedure Act, the authorities are under an obligation to act within 30 days of notification of a court decision. The execution of the administrative court’s decision may require the adoption of another administrative act, which must take into account the court’s finding, and is open to judicial review. On this basis, the authorities indicate that a new administrative act adopted following an administrative court’s decision does not necessarily amount to a circumvention of a court decision. The amendment made in Article 28 of the Law No. 2577 provide that the persons concerned can file a claim for compensation for pecuniary or non-pecuniary damage with the competent courts, against the institution which failed to implement the judicial decision. Previously, the claim was directed against the public officials involved.

Article 257 of the Criminal Code foresees a penalty for public officials causing loss, to the public or an individual, by acting contrary to their duty. Public officials’ failure to execute administrative judicial decisions is considered as a personal fault in domestic case-law. The Plenary Session of the Court of Cassation in Criminal Matters has stated in 2003 that acting in a way that disregards or renders the judicial decision inapplicable, constitutes the crime of arbitrary behaviour.

In recent judgments in 2023, the Court of Cassation upheld judgments of first-instance courts convicting a deputy governor in one case for failing to implement a court order concerning the appointment of an officer, and a mayor in another case for failing to implement a stay of execution decision regarding a construction project. In another judgment, the Court of Cassation quashed the acquittal judgment of a first-instance court in a case where a domestic court decision was implemented 10 months after the delivery, when the deadline was 30 days.

The authorities provided two new Supreme Administrative Court judgments delivered in 2022 and 2023, which concern complaints about non-implementation of administrative court decisions, mainly by local administrative bodies, and requests for compensation. They, further, provided three recent judgments of the Constitutional Court from 2023, in which it found violations due to insufficient reasoning in administrative court decisions dismissing the applicants’ requests for annulment of positive EIA decisions (allowing industrial activities to operate).

d)     Information provided by the authorities in response to the Committee’s requests for specific information on:

 

-       whether and if so to what extent the climatic conditions and geographic features of the Ovacik region were taken into account by domestic courts in their final decisions allowing the operation of the gold mine which uses cyanide leaching in the gold extraction process;

The authorities indicated that the gold mine is currently in operation. The last two EIA reports, which were required to obtain operation permits were issued in 2009 and 2017, indicating that additional measures were taken to prevent and monitor the discharge of cyanide and other pollutants into the environment and to dispose of waste products safely. The climatic conditions and geographic features of the region were taken into consideration in these EIA reports. Challenges to the two EIA reports were dismissed by the Council of State in judgments which became final in April 2018 and March 2019 respectively.

-      whether the Kemerköy, Yeniköy, and Yatağan power plants are currently operating with the requisite filters with particular focus on the reasons for the latter power plant to receive a temporary operation permit;

The authorities submitted that filtering mechanisms have been installed in the three thermal power plants, in 2003 for the Kemerköy plant, in 2008 for the Yatağan plant and in 2013 for the Yeniköy plant, and therefore, they are not harmful for the environment. The Yatağan power plant works with a temporary operation permit.

-    measures envisaged to ensure implementation of the administrative court judgment(s) which annulled the operation permit of the starch factory in Bursa Barosu Başkanlığı and Others case and became final after the legislative amendments in 2008 enabling it to continue its activities;

The starch factory is in operation. The domestic courts dismissed the request for the annulment of the last permit issued by the Governorship on 16 March 2009 by a final decision of 23 June 2020. The requests as regards the annulment of the previous operation permits, were also dismissed by the domestic courts. There are no proceedings against the no EIA required decision as regards the factory. Furthermore, in 2020, the status of the land on which the factory is built was amended from agricultural land to an industrial area, and therefore regularised.

-    proceedings pending before the domestic courts, including the Constitutional Court, concerning the operation of the gold mine, the three power plants, and the starch factory concerned by these cases, including proceedings on their auxiliary facilities;

There are no pending cases as regards the Ovacık goldmine. There have been ongoing underground projects concerning several auxiliary mining facilities of the Yatağan power plant in Turgut, Ova, and Eskihisar premises. The first-instance court annulled the EIA positive decision for the Turgut coal mine and the proceedings are ongoing. As regards the Ova underground project, domestic courts annulled the authorities’ “no EIA required” decision. The process is ongoing concerning the action brought for annulment of the “no EIA required” decision for the Eskihisar underground project. The domestic courts dismissed the cases brought against the wastewater treatment facility required for the operation of the Yatağan plant.

As regards the starch factory, the “no EIA required” decision concerning its auxiliary bioethanol process facility was annulled by the first instance court and, therefore, the auxiliary has not started production.

-    most recent official studies carried out by the competent health and environmental monitoring bodies on the impact of the current operation of the facilities concerned by these cases and their auxiliaries, on human health and the environment

The authorities consider that the necessary studies are regularly carried out. Academics of environmental and civil engineering departments prepare reports with evaluations of seismicity, stability, environmental pollution, and dusting for the thermal power plants. These reports are submitted to the Ministry of Energy and Natural Resources with indications on ash storage processes and its potential harm on environment. Furthermore, Provincial Environmental Status Reports, which are published once a year by the Ministry of Environment, Urbanization and Climate Change, and the Türkiye Environment Status Report, published every four years, guide both the investor and the public on sectoral basis.

Rule 9(2) submissions and reply from the authorities

The Committee received submissions by the KARDOK[2] NGO (DH-DD(2022)538), the Bursa Bar Association (DH-DD(2022)812 and DH-DD(2023)517), and the Client Earth NGO (DH-DD(2024)1229). They refer to a study published in 2022, suggesting that years of environmentally non-compliant operation led to high levels of water pollution in the region of the Yatağan power plant and formation of a toxic ash pond. They argue that mining projects to feed the three power plants are excluded from EIA processes. KARDOK challenged the relevant administrative decision for one of those mining projects in İkizköy. They state that these power plants failed to obtain full permits until 2021 and argue that they have caused significant environmental pollution. The NGOs also argue that restitutio in integrum as regards these power plants would require redress for the ecosystem rehabilitations, due to years of environmentally non-compliant operation. They suggest that publicly available studies should be conducted to assess the effects of these power plants to the environment and human health.

The Bursa Bar Association argues that most of the EIA processes allow the functioning of facilities, and the EIA regulation is amended regularly to grant exemptions to projects, which suggests that the positive obligation of the State to protect human health and environment is not fulfilled. It criticises the Law no. 4483 concerning the conditions for prosecution of public officials, which in its opinion leads to lack of accountability for public officials for not executing court judgments.

In response to the submission of the Bursa Bar Association and Client Earth (DH-DD(2024)1338), the authorities reiterated the information in their submissions. They added that the zoning plans of various facilities of the starch factory have been approved by competent authorities in line with domestic court decisions. They further indicated that Law no. 4483 does not grant privileges for any crimes under any circumstances and does not aim to prolong the trial process. They stated that the relevant authorities perform the necessary acts in accordance with administrative court decisions and that the requirements of court decisions are duly implemented. The authorities further noted that they will provide information on the Rule 9.2 submissions of the Client Earth after consulting the competent authorities. Lastly, they added that they found it unnecessary to comment on the other allegations which were of a speculative nature.

Analysis by the Secretariat

-       Scope of the Committee’s examination

It is important to bear in mind that the judgments in this group of cases mainly concern non-implementation of domestic court judgments concerning the effects of different industrial facilities on human health and the environment, and therefore violations of Article 6 § 1 of the Convention.

In the Genç and Demirgan case, the domestic courts decided that the gold mine poses risks for the local ecosystem, and human health and safety due to use of sodium cyanide and ordered its closure (Genç and Demirgan, §§ 8, 32). Against this background and the domestic court decisions annulling the operational permit of the mine, consecutive new permits were issued by the authorities. The Court noted that the authorities’ decisions authorising the operation of the mine was tantamount to circumventing a judicial decision (ibid., § 45).

In the Okyay and Others case, the Court reached a similar conclusion and found that the authorities’ decision to continue with the operation of the three thermal power plants (Yeniköy, Gökova and Yatağan power plants) despite administrative court decisions ordering to halt the operation of these plants, in the absence of measures to minimise their adverse environmental effects, was tantamount to circumventing judicial decisions (Okyay and Others §§ 22, 23, 73). In the Bursa Barosu Başkanlığı and Others case, The Court concluded that the authorities’ attempts to provide legal basis for continuation of operation for the starch plant, despite the annulment of investment authorisation by domestic courts, deprived the applicants of the effective application of the guarantees provided by Article 6 § 1 of the Convention (Bursa Barosu Başkanlığı and Others § 144).

In addition to the above violations, the Court found a violation of Article 8 in respect of the gold mine in the Genç and Demirgan case. In reaching its conclusions, the Court took into consideration the State’s positive obligations in inherently dangerous activities and the fact that the gold mine continued its operation after stay of execution and annulment decisions by the domestic courts (Genç and Demirgan, §§ 32-35).

Therefore, in line with the Court’s judgments and the Committee’s last decisions (in particular CM/Del/Dec(2020)1383/H46-23 in October 2020), the general measures required to address the issues highlighted in these judgments are twofold:

-       As regards Article 6 § 1 violations, the judgments require measures to prevent the circumventing of judicial decisions on environmental issues and dispelling concerns about the continuing impact of such facilities in respect of the environment and human health, in line with Convention principles on rule of law and legal certainty.

-       As regards Article 8 violation, measures are required to ensure that facilities of inherently dangerous activities operate in line with States’ positive obligations to protect human health and environment. This includes that the permits for their operation must be conditional on prior independent assessment confirming the compatibility of their functioning with the protection of human health and the environment.

-       Measures to prevent circumventing of judicial decisions on environmental issues

The authorities reiterate that the Constitution requires all national authorities to abide by judicial decisions and that there are criminal penalties for those acting contrary to their public duties. However, while the case-law examples submitted by the authorities demonstrate that awards of compensation are made , or criminal charges are brought due to non-execution of various types of domestic court judgments, these sample decisions do not concern annulment of work or construction permit of facilities by the Council of State for posing a risk to the environment and health, and therefore cannot be considered comparable to the present cases.

As concerns the possibility to obtain compensation for non-enforcement of domestic court judgments put forward by the authorities, it is recalled that the Court concluded that such possibility could not  be deemed as a sufficient redress for cases when the applicants’ grievances pertain to the non-enforcement of binding final judicial decisions to stop the operation of a gold mine (Genç and Demirgan, § 41)[3].

In sum, the information submitted by the authorities does not allow to conclude that sufficient measures have been taken to prevent future circumventing of final judicial decisions on environmental issues by the issuing of legislation or administrative decisions allowing the operation of industrial facilities before the enforcement of those decisions. The fact that the industrial activities concerned by these cases have been regularised following the Court’s judgments does not appear sufficient to alleviate the need for measures to guarantee the non-repetition of similar violations of Article 6§1.

In view of the above, the Committee’s invitation to the authorities, to submit information on the specific measures taken to prevent circumventing of judicial decisions on environmental issues to ensure respect for the rule of law and principle of legal certainty, could be reiterated.[4]

-       EIA process and positive obligations of the authorities

Positive obligations of States under Article 8 require them to take appropriate and necessary measures for inherently dangerous activities to secure the rights of those that are likely to be exposed to those dangerous effects (Taşkın and Others v. Turkey, § 113). In this respect, the EIA process and reports are important tools in ensuring that the permits for such activities must be conditional on prior independent assessment confirming the compatibility of their operation with the protection of human health and the environment. As rightly pointed out by the authorities, the EIA process is also important as it can give indications for measures to be taken to prevent or minimise the negative effects of projects with possible environmental harm.

In the light of the above, the authorities could be invited to clarify the conditions under which “no EIA required” decisions can be taken, as it happened in respect of most of the underground projects related to the power plants concerned by this group of cases. This clarification, together with the authorities’ assessment thereof would allow the Committee to assess whether the EIA mechanism contains sufficient safeguards in view of the authorities’ positive obligations to protect human health and the environment when allowing inherently dangerous activities.

-       Specific questions in respect to the facilities concerned by the judgments

a)     Ovacık gold mine

The authorities’ submission that additional measures were taken in 2009, following the latest domestic court judgment of 2008 examined in the Genç and Demirgan case, that the last two EIA reports took into consideration the geographic and climatic conditions of the region and that there were no pending proceedings in this regard appears to reply to the Committee’s questions and can be noted with interest.

b)     Kemerköy, Yeniköy, and Yatağan power plants

The information that filtering mechanisms have been installed in the three thermal power plants and the authorities’ conclusion that they are not harmful for the environment appears to reply to the Committee’s questions on this specific point (filtering mechanisms) and can also be noted with interest. Considering that domestic proceedings are ongoing as regards auxiliary facilities of these power plants, the Committee may wish to invite the authorities to provide information in this respect, and repeat its request for information as regards the reasons for the operation of the Yatağan power plant with a temporary operation permit.

c)     Starch factory

The Court limited its examination to the enforcement of domestic court decisions delivered between 1999 and 2008 and noted the last operation permit issued in 2009 and the domestic proceedings for its annulment (Bursa Barosu Başkanlığı and Others, §§ 140-143). The Committee could take note of the information provided by the authorities, according to which the domestic proceedings brought against that permit and the EIA process were dismissed and that the regularisation of the land on which the factory is located was amended from agricultural area to industrial area was terminated.

d)     Recent official studies and monitoring

The authorities consider that the necessary studies have been carried out and insist on those concerning the functioning of the three power plants concerned by these cases.

However, the reports referred by the NGOs in their submissions point to a worrying level of air and water pollution, and other health risks for the locals in the vicinity of these plants. The authorities submit that studies conducted by academics suggest that no harm exists in the ash storage processes for these plants.

Against this background and bearing in mind that there are ongoing domestic proceedings concerning the auxiliary facilities of these power plants, the authorities could be invited to provide information on the most recent official studies carried out by the competent health and environmental monitoring bodies on the impact of the current operation of these facilities and their auxiliaries on human health and the environment.

The Committee could finally note with interest the establishment by the Ministry of Energy and Natural Resources of a Monitoring Committee which will monitor the compliance of power plants with environmental legislation and ask the authorities to provide information on its functioning and latest conclusions.

Financing assured: YES