CİCEK AND OTHERS v. TURKEY (European Court of Human Rights)

SECOND SECTION
DECISION
Application no. 44837/07
Erol ÇİÇEK and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 4 February 2020 as a Chamber composed of:

Robert Spano, President,
Marko Bošnjak,
Valeriu Griţco,
Ivana Jelić,
Arnfinn Bårdsen,
Saadet Yüksel,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 14 September 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

A list of the applicants is set out in the appendix. They were represented by the first applicant and Ö. Bildik, lawyers practising in Bursa.

The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

1. The facts of the case, as submitted by the parties and as can be seen from the documents in the file, may be summarised as follows.

2. The applicants live in the Province of Bursa, in the town of Orhangazi. At the time of the events in question, a lime production plant with a quarry (“the Plant”) was operational in the vicinity of their town. According to the applicants, the distance of the Plant from their homes was 500 metres, whereas according to the Government the distance was 980 metres.

3. On 28 July 2006 the applicants Erol Çiçek and Serdar Ata (“the first two applicants”) and their representative, Ms Ö. Bildik, signed a petition addressed to the Bursa Governor’s office, calling for the closure of the Plant on account of toxic emissions being released into the air which, according to the applicants, were conveyed in the wind towards their town, thus causing air pollution. They further submitted that the Plant was operating without the necessary permits and licences, that it had not undergone an environmental impact assessment and that it lacked a sanitary buffer zone. They further submitted that the Plant, on account of its toxic activity, should have been classified as a first category unhygienic facility (birinci sınıfgayri-sıhhi müessese) and as such should be shut down pursuant to the regulations on unhygienic facilities. In that respect they quoted section 22 of those regulations, which provided that first category unhygienic facilities operating without a trial period or ordinary permit would be shut down.

4. On 11 September 2006 the Bursa Governor’s office replied to the applicants, stating that steps had been taken to test the air quality in the vicinity of the Plant pursuant to the Regulation on the Control of Air Pollution emanating from Industrial Facilities (“Air Pollution Regulations”) and that they would evaluate the situation after receiving the results of those tests.

5. On 20 October 2006 the first two applicants lodged a case with the Bursa Administrative Court, requesting that the reply from the Bursa Governor’s office of 11 September 2006 – which they considered to be an implicit refusal to shut down the Plant – be set aside.

6. During the proceedings, the Bursa Administrative Court asked the Bursa Governor’s office to clarify and substantiate with official documents whether the Plant possessed the necessary permits, licences and assessment reports for it to operate legally. It further added that if the Plant had no operating licence, the administration would have to explain why it had decided to consider the applicants’ petition as contingent only upon the results of the air pollution test. Finally, it asked the administration to state whether the Plant had been classified as an unhygienic facility and if so under which category.

7. On 22 January 2007 the Bursa Administrative Court found that the steps taken by the Bursa Governor’s office with regard to the applicants’ complaints had not been in accordance with the law principally because the Bursa Governor’s office had not verified whether the Plant operated with the required permits and licences but had limited itself to asking from the Plant to produce an air quality report and carried out no further inspection. The Bursa Administrative Court therefore decided to set aside the Bursa Governor’s reply of 11 September 2006. No finding was made by that court regarding the applicants’ request for the closure of the Plant. The Bursa Administrative Court’s decision shows that the Plant had started to operate in 1989, producing lime and aggregates, and that on 14 May 2003 the Bursa Governor’s office had decided that the Plant need not be subject to an environmental impact assessment for its planned calcite quarry operations. On 17 February 2006 the Plant had made an application to the Ministry of the Environment with a view to obtaining an emissions permit by submitting a technical emissions report which had been prepared pursuant to the Air Pollution Regulations. The Bursa Administrative Court added that the administration had failed to demonstrate that this permit had been obtained. It then noted that the Plant had an operating permit for lime production and the running of a limestone quarry but that the administration had failed to state whether it had also been classified as an unhygienic facility. Finally, it was noted by the court that subsequent to the applicants’ petition, on 8 September 2006 the administration had asked the Plant to submit an updated air quality report in accordance with the Air Pollution Regulations. In response, the Plant had only provided the administration with an air quality test report dated 22 November 2005, replying that it was not required to undergo an updated test.

8. In finding for the applicants, the Bursa Administrative Court gave its reasons as follows:

“In accordance with the Regulation on the Control of Air Pollution emanating from Industrial Facilities, in order to establish whether a facility – irrespective of whether its operations are subject to a permit or not – causes harm to the environment, the relevant administrative authorities must require the facility to obtain an emissions report from an expert designated by the relevant administrative authority in order to assess the emission levels emanating from the facility or the effects of such emissions on air quality. Furthermore the relevant administration authority must verify, through a designated expert, whether the facilities whose operations are subject to a permit carry on their operations in accordance with the rules and regulations set out in that regulation. Such facilities must have an emissions permit and operate within the limits of emissions regulations. The activities of those facilities which do not have an emissions permit or which do have a permit but carry on their operations in violation of their specific emissions commitments must be halted so that necessary precautions can be put in place.

In the present case, the course of action that had to be followed by the Bursa Governor’s office pursuant to the plaintiffs’ request was to establish first whether the impugned Plant had in place the necessary permits and operating licence. If those were found to be lacking, the Bursa Governor’s office would need to contact the relevant ministry of the administrative department so that they could take the necessary action against the Plant. On the other hand, if the Plant had the necessary permits and operating licence, the Bursa Governor’s office would need to establish by a designated expert whether its operations caused harm to the environment and health of the citizens. In this case, if harm were to be established, the Plant’s operation would need to be suspended so that the company could bring it into line with environmental protection regulations. In other words, the Bursa Governor’s office should first have established whether the Plant was operating legally with all the necessary permits and operating licence; and if so and only then, the Governor’s office could move on to determine whether the Plant caused environmental harm and take the necessary administrative steps. That being so, the Bursa Governor’s office confined itself to only asking from the Plant to obtain an air quality report and replied to the plaintiffs that it would evaluate its course of action based on the outcome of that report. Having regard to the foregoing, and further to the fact that the Plant did not even submit a recent air quality report and no other inspections other than a discharge permit verification was carried out, the Bursa Governor’s office’s reply of 11 September 2006 was not in accordance with the law.”

9. The Bursa Administrative Court’s decision, which was amenable to appeal, was only appealed by the Bursa Governor’s office. On 19 January 2009 the Supreme Administrative Court dismissed their appeal by holding that the Bursa Administrative Court’s decision had been in accordance with the law and procedure.

B. Developments after the introduction of the application

10. The Plant stopped its lime production and quarry operations on an unspecified date in 2010 and moved to the town of Gedelek, which is approximately 11 kilometres from its previous location. It was issued with a decision that an environmental impact assessment was not necessary with respect to its planned operations in the new location. In their observations the Government submitted an environmental permit given to the new Plant valid from 22 November 2016 to 22 November 2021 subject to the emissions limits established in the Air Pollution Regulations as updated on 3 July 2009.

C. Relevant domestic law

11. A description of the relevant law with respect to the right to living in a healthy environment and the duty of the domestic authorities to enforce court judgments can be found in Okyay and Others v. Turkey (no. 36220/97, §§ 46, 50 and 57-59, ECHR 2005‑VII).

COMPLAINTS

The applicants complained that their health had suffered and their houses and living environment had been damaged as a result of the Plant operating near their houses and that the administrative authorities had failed to enforce the Bursa Administrative Court’s judgment of 22 January 2007. They alleged that the Plant should have been shut down subsequent to the judicial decision. They relied on Articles 6, 8 and 13 of the Convention.

THE LAW

A. Preliminary issues

12. The Court notes that at the time when notice of the application was given to the Government, the annex setting out the list of applicants was not sent to the parties due to a clerical error. It appears that only the first and the second applicants were mentioned by their full names and that the applicants’ representative was mentioned both as an applicant and as the representative of applicants. Nevertheless the application form with the forms of authority of the remaining applicants was forwarded to the Government.

13. In their observations, the Government raised this issue and objected to the applicant status of anyone other than the first applicant.

14. The applicants in their reply to the Government maintained that all the applicants, including their representative, had lodged their application as applicants, as was evident from the application form as well as from the authority forms they had enclosed with their application.

15. The Court notes that when the applicants lodged their application with the Court, they submitted a single application form where only the first applicant was indicated as applicant. By contrast, reference was made to “all the applicants” in several places in the statement of facts part of the application. The application form itself was signed by the first applicant, and by Ms Ö. Bildik who was indicated as representative. The Court further notes that the remaining twenty-one applicants’ forms of authority were annexed to the application in which each applicant authorised the first applicant and Ms Ö. Bildik to represent them in respect of the application made to the Court on 14 September 2007. However, nowhere in the application form, or in the annexes attached to it, was Ms Ö. Bildik mentioned as an applicant. On the contrary, she signed the form and the annexes as representative only.

16. Having regard to the reference to “all the applicants” in the application form and the clear reference to the application date, to which the remaining twenty-one applicants referred in their forms of authority to be represented by the first applicant and Ms Ö. Bildik, the Court considers that the application was lodged by all twenty-two applicants. While the Court regrets the clerical error on its part, the copy of the application form and the annexes that were forwarded to the Government made it sufficiently evident that the application was lodged by twenty-two applicants. The Government’s objection to their status as applicants must therefore be rejected. As to whether Ms Ö. Bildik could be considered to have lodged the application with the intention of being an applicant herself, the Court notes that there is no implicit or explicit indication of her intention to be an applicant in the application form or in the annexes that had been attached to it. Therefore it considers that she had not lodged the application with the intention of being an applicant herself.

B. The complaint under Article 8 of the Convention

1. The parties’ arguments

17. The Government raised a number of objections to the admissibility of the complaint. They submitted that the applicants’ complaints were incompatible ratione materiae with the Convention, noting in particular that in order for pollution or nuisance to raise an issue under Article 8 of the Convention, it would have to attain a minimum level of severity that was more serious than environmental hazards inherent in urban life. They noted that there had been no findings at the domestic level about the alleged pollution resulting from the Plant’s operations. In that connection, they maintained that the decision of 14 May 2003 that the Plant did not require an environmental impact assessment (see paragraph 7 above) had not been annulled or even challenged. Secondly, referring to the conclusions of the Bursa Administrative Court’s decision of 22 January 2007, they contended that the domestic court had not made any finding as to any interference with the applicants’ right to respect for their family or private lives or their homes.

The Government further contested the victim status of the applicants having regard to the closure of the Plant shortly after the Bursa Administrative Court’s decision became final.

Finally, the Government submitted that the applicants other than the first two applicants had not signed the initial petition addressed to the Bursa Governor’s office and neither had they been parties to the proceedings before the Bursa Administrative Court (see paragraphs 3 and 5 above). The Government contended that those applicants had raised their grievances for the first time before the Court without giving an opportunity to the national authorities to put matters right.

18. The applicants maintained that the emissions from the Plant had exposed them to dangerous and toxic fumes for seven years, endangering their health. They further maintained that their quality of life had suffered from the pungent smell as a result of the lime plant’s operations. The applicants, without referring to a specific expert report or any other evidence that had been available at the time of the events, referred in general to scientific studies that had been published on the Internet with respect to the hazardous effects of petroleum coke, lignite and the burning of waste automobile tyres in lime production. Finally the applicants did not contest the Government’s objection as to the non-exhaustion of domestic remedies concerning the applicants other than the first two applicants.

2. The Court’s assessment

(a) As regards the admissibility of the complaint raised by the applicants other than the first two applicants

19. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 115, ECHR 2015). The rule of exhaustion of domestic remedies requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III).

20. The Court observes that the relevant applicants did not argue that, at the material time, they could not intervene in the administrative proceedings before the Bursa Administrative Court or lodge a separate complaint in respect of their Convention complaints. Neither did they contend that the domestic legal framework provided no effective remedies in respect of their complaints. It follows that the Government’s objection that the applicants other than the first two applicants did not exhaust domestic remedies must be upheld.

Consequently the Court holds that this complaint, in so far as it has been brought by the applicants other than the first two applicants, must be declared inadmissible.

(b) As regards the admissibility of the complaint raised by the first two applicants

21. The Court does not consider it necessary to deal with all the inadmissibility grounds raised by the Government because it notes that the application in so far as it is brought by the first two applicants is inadmissible on the following grounds.

22. The Court reiterates at the outset that Article 8 is not engaged every time environmental pollution occurs. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC],no. 36022/97, § 96, ECHR 2003‑VIII; Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003-VI; and Fadeyeva v. Russia, no. 55723/00, § 68, ECHR 2005-IV). Furthermore, the adverse effects of the environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8 (see, among other authorities, López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303-C). The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or psychological effects. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent in life in every modern city (see Fadeyeva, cited above, § 69). Conversely, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (see López Ostra, cited above, § 51, and Tătar v. Romania, no. 67021/01, § 85, 27 January 2009).

23. Thus the Court has found Article 8 to be applicable in the following circumstances, among others. In López Ostra v. Spain (cited above) the applicant lived for many years only 12 metres from a waste-treatment plant which emitted smells, noise and fumes, including hydrogen sulphide emissions which exceeded the permitted limit and which could have endangered the health of those living nearby. In Guerra and Others v. Italy (19 February 1998, Reports of Judgments and Decisions 1998-I) all the applicants lived in a village approximately 1 km from a plant which was classified as being high-risk; in the course of its production cycle it released large quantities of inflammable gas and other toxic substances, and an incident had occurred in which several tonnes of toxic gases had escaped, leading to the acute arsenic poisoning of one hundred and fifty persons, and local experts had said that owing to the plant’s geographical position, emissions from it into the atmosphere were often channelled towards the town where the applicants lived. In a case concerning a mine where gold was extracted by sodium cyanide leaching, and which was located at distances ranging from 300 to 900 metres from the homes of most of the applicants, the Court held Article 8 to be applicable, having regard to the findings of the domestic courts, which had been based on an environmental impact assessment, that the operation of the mine had caused widespread environmental degradation and had affected the applicants (see Taşkın and Others v. Turkey, no. 46117/99, § 112, ECHR 2004‑X).

24. Similarly in Fadeyeva v. Russia (cited above) the applicant lived 450 metres from the site of a steel plant (the largest iron smelter in Russia), within a delimited area in which the toxic pollution caused by steel production was excessive and where the maximum concentrations of pollutants registered near the applicant’s home were often ten times higher than the average annual concentrations, which were already above safe levels.

Likewise, in Giacomelli v. Italy (no. 59909/00, 2 November 2006) the applicant lived 30 metres from a plant used for the storage and treatment of “special waste”, including the “detoxification” of hazardous waste, a process involving treatment of special industrial waste using chemicals. The operation of the plant had been found to be incompatible with environmental regulations by the Ministry of the Environment and had posed a specific risk to the health of the local residents.

25. Again in the same vein, in Băcilă v. Romania (no. 19234/04, 30 March 2010) the applicant lived in Copşa Mică, near a plant operated by the Sometra company, one of Europe’s biggest producers of lead and zinc and at the time the biggest employer in the town. The plant discharged into the atmosphere significant amounts of sulphur dioxide and dust containing heavy metals, mainly lead and cadmium. Analyses carried out by public and private bodies established that heavy metals could be found in the town’s waterways, in the air, in the soil and in vegetation, at levels of up to twenty times the maximum permitted. The rate of illness, particularly respiratory conditions, was seven times higher in Copşa Mică than in the rest of the country. The Court found that the authorities had failed to strike a fair balance between the public interest in maintaining the economic activity of the biggest employer in a town and the applicant’s effective enjoyment of the right to respect for her home and for her private and family life.

26. Recently in a case involving a thermal power plant which had operated in the immediate vicinity of the applicants’ homes, the Court found Article 8 to be applicable, despite the fact that the domestic courts had not found a causal link between air pollution emanating from the thermal power plant and the applicants’ health problems (see Jugheli and Others v. Georgia, no. 38342/05, 13 July 2017). The Court noted in that respect that proof of quantifiable harm to the applicants’ health was not required for them to make a case under Article 8 as it had been evident that exposure to air pollution would at least have made them more vulnerable to various illnesses and had no doubt adversely affected their quality of life. In reaching that conclusion, the Court took into account the expert opinions commissioned by the domestic judicial authorities and produced by the competent State entities which confirmed in unambiguous terms that the absence of a buffer zone between the plant and the building, coupled with the absence of filters or other purification equipment over the plant’s chimneys to minimise the potential negative impact of the hazardous substances emitted into the air, had created a real risk for the residents of the building.

27. By contrast, in a number of cases, the Court found Article 8 not to be engaged because the environmental degradation alleged by the applicants was not serious enough to reach the threshold established in cases dealing with environmental issues. For instance, in a case concerning the destruction of a swamp adjacent to the applicants’ property, the Court found that the applicants had not put forward convincing arguments showing that the alleged damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their rights under Article 8. The Court noted that the crucial element which must be present in determining whether, in a given case, environmental pollution has adversely affected one of the rights safeguarded by that provision was the existence of a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment (see Kyrtatos, cited above, §§ 52 and 53).

28. In a case concerning pollution from a reclamation scheme of a tailings pond of a former copper mine and its potential consequences for the environment and the health of the applicant and his family, the Court found Article 8 to be inapplicable, having regard, among other things, to the fact that the applicant could not demonstrate that the degree of disturbance in and around his home had been such as to considerably affect the quality of his private or family life (see Ivan Atanasov v. Bulgaria, no. 12853/03, 2 December 2010). While the existence of health risks linked to the implementation of the reclamation scheme was corroborated by some of the expert reports at the domestic level, the Court was not persuaded in that case that there had been a harmful effect touching on the private or family sphere protected by Article 8 of the Convention, given that there had been no proof of any direct impact of the impugned pollution on the applicant or his family (ibid., §§ 76-78).

29. The above-mentioned cases make it plain that the question whether pollution can be regarded as adversely affecting an applicant’s rights under Article 8 of the Convention depends on the particular circumstances and on the available evidence. The salient question is whether the applicant has been able to show to the Court’s satisfaction that there has been actual interference with his private sphere, and, secondly, that a minimum level of severity has been attained (ibid., § 70). The mere allegation that an industrial activity was not carried on legally because it lacked one or more of the necessary permits or licences is not sufficient to ground the assertion that the applicants’ rights under Article 8 have been interfered with (see, mutatis mutandis, Ivan Atanasov, cited above, § 75, and the cases cited therein).

30. Turning to the present case, the Court must therefore determine whether the alleged pollution was serious enough to affect adversely, to a sufficient extent, the family and private lives of the first two applicants and their enjoyment of their homes. The Court notes at the outset that on the basis of the material in the case file, it cannot establish the extent of air pollution allegedly caused by the Plant during the relevant time-frame. The Court also notes that the applicants did not provide any specific information concerning the Plant’s operations but referred in general to scientific studies that had been published on the Internet with respect to the hazardous effects of petroleum coke, lignite and the burning of waste automobile tyres in lime production (see paragraph 18 above).The Court further observes that the applicants did not provide medical or environmental expert reports relevant to their situation or any other evidence of air pollution or nuisance allegedly caused by the operation of the Plant. Furthermore, none of the parties provided the Court with reliable data on the subject, such as the nature of emissions emitted from the Plant, whether it exceeded the safe levels set by the applicable regulations or air pollution levels in the applicants’ town. It is true that the applicants’ misgivings about the operation of the Plant were brought to the attention of the domestic authorities and their subsequent reply was found by the Bursa Administrative Court to be inadequate with respect to the steps and the procedure that needed to be followed; however, that finding was made strictly on the basis of the domestic environmental legislation and contained no assessment as to whether the applicants had been affected by the alleged pollution and nuisance caused by the Plant.

31. The Court is mindful of the ruling given by the Bursa Administrative Court, especially of the fact that it did not determine the substantive issue brought before it by the applicants, that is, the applicants’ request for the Plant to be shut down due to air pollution and nuisance caused by pungent smells. In that connection, the Court notes that the Bursa Administrative Court did not make a finding as to whether the Plant caused pollution, or whether its operations caused any nuisance to the quality of the applicants’ lives. Neither did it establish itself whether the Plant was operating in breach of the statutory regulations. No expert reports, discovery hearings or other procedural means to determine adequately the facts of the dispute were employed by that court. The domestic court instead shifted that responsibility back to the administration without making a determination as regards the applicants’ request for the closure of the Plant. That being so, the applicants failed to clarify the matter by lodging an appeal before the Supreme Administrative Court against the Bursa Administrative Court’s decision on the grounds that their claims with respect to the closure of the Plant had not been decided by the administrative court. In fact, the applicants have claimed that the decision of the Bursa Administrative Court should be interpreted as an obligation on the part of the administration to shut down the Plant. The Court is, however, unable to agree with the applicants on that point in the light of the reasoning of the Bursa Administrative Court and the lack of any such order in the operative part of the domestic court’s decision.

32. In sum, in the absence of proof of any direct impact on the applicants or their quality of life, the Court is not persuaded that the nuisance complained of amounted to an interference with the applicants’ private lives (see, for a similar conclusion, Marchiş and Othersv. Romania (dec.), no. 38197/03, §§ 38-39, 28 June 2011).

33. Therefore, the Court is not persuaded that Article 8 of the Convention is applicable to the circumstances of the present case. Accordingly, this complaint in so far as it has been brought by the first two applicants is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint about the non-enforcement of domestic court decisions

34. The applicants complained under Articles 6 and 13 of the Convention that the Bursa Administrative Court’s decision of 22 January 2007 had not been enforced owing to the domestic authorities’ failure to shut down the Plant immediately. They argued that non-enforcement of domestic court decisions in respect of environmental claims was a systemic issue in Turkey.

35. The Government argued that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning, inter alia, the non‑enforcement of judgments. They maintained that the applicants had not exhausted domestic remedies, as they had not made any application to that Commission requesting compensation. They further maintained that the Bursa Administrative Court’s decision could not be read as requiring the authorities to shut down the Plant. It only required the authorities to take the necessary steps with respect to inspection of the Plant; however, owing to the relocation of the Plant shortly after the decision had become final, it had proved de facto impossible to implement the decision.

36. The applicants contested the Government’s arguments noting, among other things, that the remedy established in Law no. 6384 had not been available at the time they lodged their application with the Court. They further disagreed with the Government’s interpretation of the domestic court decision. While they did not contest the closure of the Plant in 2010, they maintained that for three years the Bursa Administrative Court’s decision had not been enforced by the authorities.

37. The Court reiterates that a person cannot complain about a violation of his or her rights in proceedings to which he or she was not a party. It follows that this complaint, in so far as it was brought by the applicants other than the first two applicants, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

38. As regards the first two applicants, the Court notes that they complained that the Plant continued to operate until 2010 despite the Bursa Administrative Court’s decision of 22 January 2007 requiring it to be closed. The Court refers to its findings under Article 8 of the Convention in the present case that the domestic court decision could not be taken to mean that the administration had to shut down the Plant (see paragraph 30 above). To that extent, the applicants’ complaint about the non-enforcement of the domestic court’s decision is manifestly ill-founded. Be that as it may, the applicants obtained a favourable judgment in their case, which required the administration to take certain steps to inspect the Plant and carry out the necessary tests in accordance with the Bursa Administrative Court’s decision. It also appears that the administration did not act on that obligation within the prescribed time-limits (see Okyay and Others, cited above, § 50). Therefore, to the extent that the applicants’ complaint relates to the alleged overall failure of the authorities to implement the Bursa Administrative Court’s decision, the Court will now examine whether the applicants could be expected to use the domestic remedy invoked by the Government.

39. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Demiroğlu v. Turkey ((dec.), no. 56125/10, 4 June 2013), the Court declared an application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say to use the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the failure of the authorities to enforce judicial decisions.

40. The Court further notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless examine applications of that type, under its normal procedure, where notice thereof had already been given to the Government. The Court has thus done so in a case where it was not persuaded that the remedy in the form of compensation would offer redress for a continuing situation (see Genç and Demirgan v. Turkey [Committee], nos. 34327/06 and 45165/06, § 41, 10 October 2017, with respect to the non-enforcement of a final and binding domestic judgment ordering the administration to stop the operation of a gold mine). In the particular circumstances of the present case, however, the Court notes that the implementation of the Bursa Administrative Court’s decision is objectively impossible having regard to the fact that the Plant ceased its operations in 2010 and moved elsewhere. For this reason, the Court considers that the Compensation Commission can provide redress in response to the applicants’ complaints and therefore the Government’s objection of non-exhaustion of domestic remedies must be upheld.

41. In view of the foregoing, the Court concludes that this part of the application, in so far as it was brought by the first two applicants, should be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 February 2020.

Hasan Bakırcı                              Robert Spano
Deputy Registrar                          President

 

Appendix

No. Applicant’s Name Birth date Place of residence
1 Erol ÇİÇEK 02/01/1963 Bursa
2 Sedat ATA 10/12/1964 Bursa
3 Yakup BAŞARAN 30/05/1957 Bursa
4 Ayhan BİLDİK 08/01/1955 Bursa
5 Fevzi ÇAVUŞ 10/02/1966 Bursa
6 Mehmet ÇETİN 27/05/1961 Bursa
7 Ergül ÇİÇEK 19/07/1964 Bursa
8 Fikret GÜNAY 01/05/1957 Bursa
9 İbrahim GÜNAY 09/03/1976 Bursa
10 Kenan KAYA 10/03/1982 Bursa
11 Kubilay KÜÇÜKPEHLİVAN 28/09/1982 Bursa
12 Bahtiyar ONGUN 08/04/1981 Bursa
13 Mehmet ONGUN 12/11/1978 Bursa
14 Reyhan ÖZKAN 28/01/1977 Bursa
15 Sedat SEVİNÇ 07/03/1981 Bursa
16 Mustafa SIR 01/03/1966 Bursa
17 Hasan TALAN 12/07/1978 Bursa
18 Metin USLU 10/05/1966 Bursa
19 Emel UYSAL 10/05/1984 Bursa
20 Erdinç YALAMAOĞLU 28/02/1956 Bursa
21 Halil YALAMAOĞLU 17/09/1957 Bursa
22 Mehmet YALAMAOĞLU 03/08/1965 Bursa

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