Ahunbay and Others v. Turkey (dec.) (European Court of Human Rights)

Information Note on the Court’s case-law 226

February 2019

Ahunbay and Others v. Turkey (dec.) – 6080/06

Decision 29.1.2019 [Section II]

Article 8

Article 8-1

Respect for private life

Dam construction threatening important archaeological site: inadmissible

Facts – In 2006 work had begun on the construction of the Ilısu dam on the Tigris river. The project had entailed flooding dozens of sites of major cultural and historical interest (some of them contained ancient Mesopotamian remains), not all of which had been excavated. The applicants – private individuals involved in the local archaeological projects – regarded this as a violation of the right to knowledge of the cultural heritage and the right to transmit cultural values to future generations.

By decision of 21 June 2016 (see Information Note 198), the Court decided to communicate the application to the Turkish Government under Articles 8 and 10 of the Convention. 90% of the dam construction work has now been completed.

Law – Article 8: Clearly, the gradual emergence of cultural heritage conservation values has been accompanied by a growing international body of legislation on the protection of access to the cultural heritage. Thus the present case might be considered as relating to an evolving field (see, inter alia, Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8 November 2016, Information Note 201). In that regard and in the light of the international instruments and the common denominators of international legal standards, whether binding or not, the Court did not, a priori, rule out the existence of a joint European and international stance on the need to protect access to the cultural heritage.

Nevertheless, the international protection as it currently stands usually concerns situations and regulations appertaining to the cultural rights of national minorities and the right of indigenous peoples to conserve, control and protect their cultural heritage. Accordingly, as international law stands, cultural heritage rights would seem to be intrinsically linked to the specific status of individuals belonging to national minorities or indigenous peoples. Conversely, the Court currently saw no “European consensus”, or even any trend among Council of Europe member States, potentially necessitating a reworking of the scope of the rights in question or allowing the Court to infer from the provisions of the Convention a universal individual right to the protection of a specific cultural heritage.

Conclusion: inadmissible (incompatible ratione materiae).

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