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(Mehmet Kurt [GK], B. No: 2013/2552, 25/2/2016, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 SECOND SECTION

 

JUDGMENT

 

MEHMET KURT

Application no. 2013/2552

 

25 February 2016

 

 

On 25 February 2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Mehmet Kurt (no. 2013/2552) that there had been a breach of the right to protect and develop material and spiritual entity guaranteed in Article 17 of the Constitution.

 

            III. THE FACTS

[7-31]. The applicant is owner of a four-storey building located in Soğuksu Village in Kalkandere/Rize. A favourable decision of the environmental impact assessment (EIA) was rendered by the Ministry of Environment and Forestry for the Cevizlik Hydroelectric Plant planned to be constructed by A. Enerji Üretimi San. ve Tic. A.Ş. (“the Company”) at the İkizdere basin in the province of Rize, and accordingly a forested land of 69.881 m² was allocated to the Company. At the end of the case brought before the Rize Administrative Court for the revocation of the EIA favourable decision, the act at stake was revoked on the ground that the environmental impacts of the EIA favourable decision were at the acceptable levels except for the calculation of aqua vitae to be left for the continuation of the aquaculture. Thereupon, after the Company had undertaken to release water at the amount of 2800 l/sec, which was specified in the court’s decision, to the stream, a new EIA favourable decision was taken. The action brought before the Rize Administrative Court for revocation of this decision was dismissed.

After the Directorate General of Forestry had allocated the forested land of 69.881 m² as a switchyard for the Cevizlik Hydroelectric Plant, the authorization was revoked as this land was not found appropriate by the Directorate General of the Turkish Electricity Transmission Company (“the TEİAŞ”). It was requested that an additional authorization be granted for the new appointed forested land of 16.638 m². The Cadastral and Property Department at the Directorate General of Forestry of the Ministry of Environment and Forestry granted additional authorization for the Company concerned until 27 October 2055 for establishing a switchyard on this area. A case was filed by the applicant and another person before the Rize Administrative Court for revocation of the act in question.

The case filed by the applicant for the protection of the natural environment and environmental health was dismissed by the Rize Administrative Court on the grounds that the environmental impact values were within the acceptable limits and that there was no ground which would require making another assessment different than the previously-taken EIA report. The first instance decision was quashed by specifying that the legal procedure pertaining to the site for which additional authorization had been granted was not fulfilled. Upon the request of the defendant administration for the rectification of the judgment before the Supreme Administrative Court, the previous judgment rendered by the Chamber of the Supreme Administrative Court was revoked, and the first instance decision was upheld. 

Along with the administrative proceedings cited-above, in the expropriation action brought by the TEİAŞ against the applicant and another third person, it was held that the easement of the part which was indicated on the expert report and on which the switchyard and the transmission lines were built be registered in the name of the TEİAŞ; that the easement value of the immovable property be paid to the third party specified to be the owner of the immovable property while the easement value of the building be paid to the applicant who was the owner of the building.

IV. EXAMINATION AND GROUNDS

32. The Constitutional Court, at its session of 25 February 2016, examined the application and decided as follows.

A. The Applicant’s Allegations

33. The applicant maintained that although an EIA favourable decision was also required to be obtained in respect of the switchyard built, upon the interlocutory decision of the Directorate General of Forestry, at the Soğuksu Village in the Kalkandere district of the Rize province, where many people were living and he also had a four-storey building, within the scope of the “Cevizlik Regulator and Hydroelectric Power Plants Project”, this decision was not taken. He also stated that high-voltage transmission lines were installed just over his building due to the switchyard built by his immovable; and that according to scientific research results, these transmission lines emitting radiation through a surface of 600 m led to several diseases including cancer; that the level of noise caused by the plant while operating was far above the tolerable limits, which hindered the residents from maintaining their daily lives and from sleeping at nights; and that he could not obtain a result from the action he brought due to non-existence of an EIA report with respect to this facility. The applicant accordingly claimed that his rights safeguarded by Articles 17 and 56 of the Constitution were violated.

B. The Court’s Assessment

34. The Constitutional Court is not bound by the legal qualification of the facts by the applicant, and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18/9/2013, § 16). Although the applicant maintained that his rights enshrined in Articles 17 and 56 of the Constitution were violated, the Court found it appropriate to examine the application under Article 17 of the Constitution by the very nature of the alleged violations.

1. Admissibility

35. As it has been revealed that the application is not manifestly ill-founded and there is no other ground to require the application to be declared inadmissible, it was found admissible.

2. Merits

36. The applicant maintained that an EIA favourable decision was not obtained in respect of the switchyard built, upon the interlocutory decision of the Directorate General of Forestry, at the Soğuksu Village in the Kalkandere district of the Rize province within the scope of the “Cevizlik Regulator and Hydroelectric Power Plants Project”; and that the action brought by him in respect thereof was rejected. He accordingly alleged that his rights safeguarded by Articles 17 and 56 of the Constitution were violated.

37. In its observations, the Ministry of Justice indicates that the constitutional provisions with respect to the right to a healthy environment must be interpreted in light of Article 8 of the European Convention on Human Rights (“the Convention”) as well as the case-law of the European Court of Human Rights (“the ECHR”) on this matter. The Ministry further states that in the applications where the State acts having an impact on the environmental issues are discussed, the ECHR’s assessments have two aspects: the decision-making process is also taken into consideration for determining whether the persons’ interests have been considered, alongside the review of the substance of the decisions. In these applications, it is primarily noted that the impact on and risk to -likely to be caused by the relevant incident- life style, health and property must be proven by the applicant, and precedent cases which are referred to in the ECHR’s case-law within the scope of the right to a healthy environment are also stated.

38. In his counter-statements against the Ministry’s observations, the applicant asserted that the expert examination ordered by the first instance court was not directed at the impugned incident; the expert report was executed on the basis of incomplete examination; that factors having an impact on the value of immovables such as transportation, topography and arable nature of the lands were mentioned in the expert report; however, the fact that his right to life was violated due to installation of electricity transmission line just over his house was ignored; and that the expert failed to make any risk assessment in respect thereof. He further indicated that possible impacts of this transmission line on the residents’ health were not taken into consideration; that it had an impact over the area of about 600 m2 including his home and the other immovables as well; that due to this plant, the tea gardens that were source of income for the villagers were destroyed; the transmission lines installed at the residential areas constituted a high cancer risk, which was proven by the scientific studies; and that the installation of these transmission lines just over his building rendered it unusable. He also stated that in the civil action brought for the plant in question, right of easement was constituted, in favour of the administration, over a certain part of the immovable, the value required to be taken into consideration was not of the area due to installation of lines; that the electrical equipment rendered the building unusable; and that due to climatic conditions of the region which was rainy during the large part of the year, thirty percent of leakage of energy was transmitted to the building from electric wires during every rainy weather. Besides, he indicated that the noise caused by the plant when operating was beyond the tolerable limits; that due to noise emitted by operation of the plant, which was established very close to his building, the residents could not maintain their daily lives; nor could they fall asleep during nights; that in this respect, the experts evaluated the impugned plant only in economic terms but failed to discuss its possible damages to environment and human health; and that the court decision rendered on the basis of this report was unlawful and in breach of his fundamental rights.

a. General Principles

39. Pursuant to Article 148 § 3 of the Constitution and Article 45 § 1 of the Code on the Establishment and Rules of Procedures of the Constitutional Court, which is dated 30 October 2011 and numbered 6216, the Constitutional Court may carry out an individual examination on the merits only when the right alleged to be violated by a public authority is safeguarded by the Constitution as well as it falls into the scope of the Convention and its additional protocols to which Turkey is a party. In other words, it is not possible for an application with an alleged violation of a right which is outside the common protection area of the Constitution and Convention to be declared admissible (Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 18).

40. Article 17 § 1 of the Constitution, titled “personal inviolability, corporeal and spiritual existence of the individual”, reads as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.”

41. Article 56 § 1 and 2 of the Constitution, titled “health services and protection of the environment”, reads as follows:

                   “Everyone has the right to live in a healthy and balanced environment.

It is the duty of the State and citizens to improve the natural environment, to protect the environmental health and to prevent environmental pollution.”

42. Article 48 § 2 of the Constitutional, titled “personal inviolability, corporeal and spiritual existence of the individual”, reads as follows:

“The State shall take measures to ensure that private enterprises operate in accordance with national economic requirements and social objectives and in security and stability.”

43. Article 8 of the Convention, titled “right to respect for private and family life”, reads as follows:

       “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

       2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

       44. All legal interests included within the realm of the private life are safeguarded under Article 8 of the Convention. However, it appears that these legal interests fall into the scope of various provisions of the Constitution. In this context, Article 17 § 1 of the Constitution sets out that everyone has the right to protect and improve his/her corporeal and spiritual existence. The right to protect and improve corporeal and spiritual existence corresponds to the right to respect for physical and mental integrity and right to self-fulfilment and to make decisions regarding himself, which are safeguarded under the right to respect for private live within the framework of Article 8 of the Convention. Apart from that, certain legal values inherent in the notion of private life are enshrined in Article 20 of the Constitution, and the other sub-categories of the private life –namely, confidentiality of communication and right to respect for domicile– are safeguarded under Articles 21 and 22 of the Constitution. It is accordingly seen that the rights enshrined in Article 8 of the Convention are basically set out in Articles 17, 20, 21 and 22 of the Constitution.

       45. Within the scope of the protection of private life, several legal interests that are compatible for freely developing one’s personality are included within the scope of this right. In this respect, legal interest of a person with respect to his physical and mental integrity is also safeguarded within the scope of the right to respect for private life. One of the legal interests guaranteed under the right to physical and mental integrity is the right to a healthy environment (see the Court’s judgment no. E.2013/89 K.2014/116, 3 July 2014).

       46. The normative basis of the right to a healthy environment, in constitutional context, is the regulation that everyone has the right to live in a healthy and balanced environment, which is set forth in Article 56. However, this provision is enshrined within the section “social and economic rights and duties” of the Constitution. In Article 148 § 3 of the Constitution where right to an individual application is regulated, it is set out “Everyone may apply to the Constitutional Court on the ground that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted”. It is thereby indicated that an individual application cannot be lodged due to an alleged violation of the second and third generations of rights enshrined in the Constitution. However, the right to a healthy environment must be assessed in conjunction with Article 17 of the Constitution embodying the legal interests with respect to physical and mental integrity, and Articles 20 and 21 thereof, which respectively safeguards the right to respect for private and family life and the inviolability of domicile, and by also taking into account its impact on the legal interests inherent in these provisions.

       47. The notion of private life is a broad concept having no exhaustive definition. The obligation imposed on the State by virtue of this right is not limited only to the avoidance of arbitrary interference with the right. It also embodies positive obligations for ensuring an effective respect for private life, in addition to the above-cited negative obligation which is of priority. These positive obligations entail taking of measures for ensuring respect for private life even if in the realm of interpersonal relations (see Sevim Akat Eşki, no. 2013/2187, 19 December 2013, § 26). The State’s positive obligations need to be mainly assessed also within the scope of the alleged violations with respect to environmental nuisance.   

       48. The right to respect for private life, to family life and home, in the context of the right to environment, is protected not only from interferences by public authorities but also, as required by the doctrine of positive obligations, from interferences caused by private persons.

       49. The Constitution embodies several provisions which refer to the positive obligations as well as application of fundamental rights to horizontal relations. In this respect, in the seventh paragraph of the Preamble incorporated into the text pursuant to Article 176 of the Constitution, it is set forth that “All Turkish citizens […] absolute respect for one another’s rights and freedoms […]”. Article 5 of the Constitution defining fundamental aims and duties of the State sets out “The fundamental aims and duties of the State are to […] ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence”. Besides, pursuant to Article 11 of the Constitution regarding the binding nature and superiority of the Constitution, the provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. All rights and freedoms enshrined in the Constitution are under guarantee in respect of all individuals. Pursuant to Articles 12 of the Constitution, titled nature of fundamental rights and freedoms, “(…) the fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family and other individuals”. Article 14 § 2 of the Constitution regarding the “abuse of fundamental rights and freedoms” indicates that no provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution. This provision accordingly addresses to both individuals and the State and constitutes one of the normative grounds of positive obligations on the part of the public authorities in the effective enjoyment of fundamental rights and application of fundamental rights to horizontal relations.

       50. In addition to the above-cited general regulations and notably in the context of environmental issues, it is explicit that Article 56 § 2 of the Constitution, which sets forth that it is the State’s duty to improve the environment, to protect the environmental health and to protect environmental pollution, must also be taken into consideration in determination and assessment of the public authorities’ positive obligations within the context of environmental issues. In the legislative intention of Article 56 of the Constitution, environmental pollution is generally mentioned of, and it is also indicated that it is the State’s duty to ensure citizens to maintain their lives in physical and mental integrity under the protected environmental conditions; and that State’s supervision and actual measures and activities protecting environment are as necessary as the legislation on the protection of environment. It is accordingly emphasized that the State is liable to take measures in order for both the prevention of pollution as well as the protection and improvement of natural environment, whereby the State’s positive obligations are pointed out in respect of the environmental issues.

       51. Given the fact that complaints regarding the environmental pollution are raised within the framework of activities performed by private enterprises, it is observed that Article 48 § 2 of the Constitution, which sets forth “The State shall take measures to ensure that private enterprises operate in accordance with national economic requirements and social objectives and in security and stability”, also constitutes one of the normative grounds of the public authorities’ positive obligations within the context of environmental issues. This provision also puts emphasis on the balance required to be observed between public interest in respect of the relevant activity and the interest in the protection and improvement of corporeal and spiritual existence of the individual.

       52. The right to environment has today become much more important as it is of particular concern to present generation and even to the next generations due to its close relation with the rights to life and to health. As it is very difficult and troublesome, and even it is sometimes impossible, to reinstate the environment after being polluted and destroyed, it is required that investments and activities to be performed for development and economic progress be carried out without destroying the nature and polluting the environment; and that antipollution and preservative measures be given weight instead of cleaning polluted environment or restoration of disrupted environment (see the Court’s judgment no. E.2013/89 K.2014/116, 3 July 2014; no. E.2006/99 K.2009/9, 15 January 2009). The right to a healthy and balanced environment is not one of the rights that would be renounced on the grounds that the rule to be introduced would lead to economic, bureaucratic and actual obligations and that the productive activities would be affected (see the Court’s judgment no. E.2011/110 K.2012/79, 24 May 2012).

       53. In spite of not having an agreed definition, the notion of environment is stated to comprise, in general, natural resources such as air, water, land, flora and fauna as well as their mutual interaction. Besides, in Law no. 2872, this notion is defined as biological, physical, social, economic and cultural environment where all living creatures maintain their relations during their lives and are involved in mutual interaction.

       54. Accordingly, these definitions leave an impression that the environment per se is protected as a value. However, it appears that the ecological approach, which may be also called as environment-centred approach and which points out the necessity of protecting the environment as a value per se, was replaced with the consideration that there is an explicit link between the human rights and the protection of environment. In this scope, it is comprehended that the environment is approached with a human-centred understanding; that a link is established between environment and qualified life as well as health; and that several international instruments which may considered in the context of environmental human rights have been also formed by way of establishing a link between environmental protection and human health and welfare. The Recommendations, by the Parliamentary Assembly of the Council of Europe, on the issuance of an additional protocol regarding the right to a healthy environment are also among the significant instruments concerning environmental human rights.

       55. Any certain right in the form of the right to a healthy environment is not also set out, in a normative manner, in the Convention (see Bor v. Hungary, no. 50474/08, 18 June 2013, § 24). However, environmental issues are discussed by the ECHR within the framework of Articles 2, 3, 6 and 8 of the Convention and Article 1 of the Additional Protocol no. 1 (see Brincat and Others v. Malta, no. 60908/11, 24 July 2014, §§ 103-117).

       56. It is observed that environmental issues are frequently brought before the ECHR within the context of environmental pollution; and that the ECHR examines such issues by establishing a link with legal interests guaranteed under Article 8 of the Convention and without taking into consideration whether the impugned environmental nuisance has been caused due to an activity of the State or private persons (see Bor v. Hungary, § 25). Regard being had to these considerations, it is seen that the ECHR establishes a link between the right to respect for private life, family life and home -which are sub-categories of the notion of private life- and the right to a healthy environment, by means of determining that the impugned environmental pollution has an adverse impact on the essence and quality of private life and family life as well as on the legal interest of utilizing domicile with pleasure (see Powell and Rayner v. the United Kingdom, no. 9310/81, 21 February 1990; Hatton and others v. the United Kingdom, no. 36022/97, 2 July 2003; and Lopez Ostra v. Spain, no. 16798/90, 9 December 1994).

57. The notion of “private life” inherent in the sub-category of the right to respect for private life is interpreted by the ECHR in a very broadly manner, and the ECHR particularly abstains from making an exhaustive definition of the notion. However, it is observed that, in the case-law of the supervisory organs of the Convention, the phrase “the individual’s improving his personality and self-fulfilment is taken as a basis in determining the scope of the right to respect for private life (see Koch v. Germany, no. 497/09, 19 July 2012, § 51).

58. Nevertheless, in order for environmental issues to be assessed within the scope of Article 8 of the Convention, certain conditions are sought. In this respect, it is required that the impugned environmental nuisance has a direct impact on the applicant’s right to respect for his private life, family life and his home; and that the impact of the impugned environmental pollution on the specified values has attained a minimum level of severity. Accordingly, it is required that the impugned pollution has attained a serious extent. It is seen that the threshold of minimum severity is assessed in order not to determine whether the relevant legal values have been violated but to find out whether it has per se caused an examinable issue on the relevant matter. The assessment of that minimum is relative and necessitates an independent examination in every concrete case within the scope of criteria such as the intensity and duration of the nuisance, and its physical or mental effects as well as general environmental context (see Fadeyeva v. Russia, no. 55723/00, 9 June 2005, § 69). The most important element in the assessments made is undoubtedly the proximity of the applicant to the source of environmental pollution. Accordingly, environmental problems that are insignificant compared to the environmental hazards inherent in each modern city life are not deemed sufficient for triggering the application of safeguards under Article 8 of the Convention (see Mileva and Others v. Bulgaria, no. 43449/02, 25 November 2010, § 88).

59. As any right to live in a clean and silent environment is not safeguarded under the Convention, the environmental rights such as the right to scenery and the right to live in a pleasant environment, which have no direct and serious impact on legal interests protected within the scope of the private life, can in no way be considered under Article 8 of the Convention (see Krytatos v. Greece, no. 41666/98, 22 May 2003, § 52 and 53; and Ali Rıza Aydın v. Turkey, no. 40806/07, 15 May 2012, §§ 27 and 29). As a matter of fact, the factor engaging Article 8 is not the full deterioration of environment, but existence of a detrimental effect to the individuals’ private and family lives and their homes.

60. In the ECHR’s case-law, it is frequently emphasized that whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Bor v. Hungary, § 24).

61.  Regard being had to the arrangements enshrined in the Constitution and forming normative basis of the applicability of positive obligations and fundamental rights to horizontal relations, it appears that providing those concerned with the opportunity to have recourse to administrative and judicial remedies, if they consider, in accordance with the data and documents made available to them, that their legal interests are not sufficiently taken into consideration, is one of the obligations of the public authorities within the context of environmental issues.

62. Due to wide margin of appreciation enjoyed by the public authorities in respect of environmental issues, many international conventions embody separate and explicit procedural obligations within the context of the right to environment. Notably, in Principle 10 of the Rio Declaration, which comes to the forefront for laying emphasis on the relation between development and the environmental protection, it is indicated that environmental issues are best handled with the participation of all concerned citizens, at the relevant level; and that each individual shall have appropriate access to information concerning the environment that is held by public authorities, they shall be provided with the opportunity to participate in decision-making processes, as well as, they shall be provided with the right to effective access to judicial and administrative proceedings. Besides, in Articles 4 and 5 of the Aarhus Convention, which was adopted by the United Nations Economic Commission for Europe on 25 June 1998 and which is the second supranational instrument whereby environmental procedural rights are vested, the right to access to environmental information held by public authorities; in Articles 6, 7 and 8, the right to participate in decision making processes relating to the environment; and in Article 9, the right to accesses to justice in terms of environmental issues are clearly introduced.

63. It has been observed that the ECHR also deals with a case regarding environmental issues in two aspects. The ECHR assesses both the compatibility, under substantive aspect, of the impugned interferences with Article 8 and also the decision-making process. As to procedural aspect of the environmental issues, the procedural safeguards such as the right to access to information, the right to participate in environmental decision-making processes and the right to have recourse to judicial remedies are underlined (see Taşkın and Others v. Turkey, no. 46117/99, 10 November 2004, §§ 115 et seq.).

64. The basic question required to be assessed within the context of the environmental issues is whether the public authorities put forward arguments capable of justifying the burden imposed on the applicant for public interest, in the light of the above-mentioned basic principles. Incorporation of procedural obligations into the assessment process has ensured formation of a more secured basis for the right to a healthy environment vis-à-vis the generally positive nature the State’s obligation and its wide margin of appreciation in this field.

65. The relevant administrations have positive obligation to inform the public about the environmental rights, as required by the procedural rights at stake. It must be particularly stressed that the right to information requires public access to information not only in possession of the public authorities but also held by the private persons conducting the relevant activity. The fact that environmental pollution is caused mostly due to activities performed by private persons requires public access to information held by these persons. That is because the responsibility, on the part of public authorities, in the environmental pollution issues is generally resulted from horizontal implementation of fundamental rights.

66. Another procedural obligation is to provide individuals, who must be ensured to participate in environmental decision-making processes, in cases where they consider in light of the provided information that their legal interests are not sufficiently paid regard to during this process, with the opportunity to have recourse to judicial remedies whereby their allegations are meticulously assessed by the judicial authorities. It is thereby ensured that a fair balance be struck between individual and public interests; and that necessary inquiries and assessment which would enable expression of opposing views be carried out.

67. The first point to be assessed within the scope of the above-mentioned findings is whether the relevant environmental impact attains the minimum level of severity required to engage the safeguards under Article 17 of the Constitution. This severity must be assessed by considering all circumstances of the incident. In such an assessment, density of the impact in question, its duration, the physical and mental impact must be considered, and its gravity compared to impacts and nuisance which are inherent in, tolerable and probably seen in city life must be taken into consideration.

68. It is revealed that also in the ECHR’s case-law, in determining the level of gravity sought in order for the environmental impact, which is being examined, to trigger the safeguards set out in Article 8, the applicant is expected to provide concrete data revealing the level of impact. Accordingly, data such as public measurements and expert reports revealing the level of impact at stake as well as public decisions which, for instance, indicate that the relevant field was found to be an area which is open to noise are taken into consideration in the assessments made. However, there are cases in which the ECHR concluded according to the data obtained from the application form and documents relating to relevant administrative and judicial procedure as well as the ordinary course of life that the impugned environmental nuisance went beyond the threshold of a minimum level of severity (see Moreno Gomez v. Spain, no. 4143/02, 16 November 2004, §§ 59 and 60; Ruano Morcuende v. Spain, no. 75287/01, 6 September 2005; Fagerskiöld v. Switzerland, no. 37994/04, 26 February 2008; Oluic v. Croatia, no. 61260/08, 20 May 2010, §§ 52, 62; and Milena and Others v. Bulgaria, §§ 93 and 95).

69. In this respect, existence of an adequately close link between environmental impact caused by the relevant plant, facility or activity and enjoyment of the applicant’s right to respect for his private life, family life and his home is sufficient.

b.    Application of Principles to the Present Case

70. In the present incident, it has been observed that the plant, which is complained of for causing environmental nuisance, is a switchyard called as outdoor substations where necessary arrangements were performed for transmission of generated electricity to distribution network; that the switchyard and transmission lines in question are covering a total surface of 76.887 m2; that the plant have equipment and tools required for accumulation and transmission of electricity (separators, breakers, buses, transformers and ancillary equipment); and that 154 kV transmission line with 5 km length was installed for this power plant. According to the expert reports included in the case-file of the Kalkandere Civil Court of First Instance, which is dated 20 May 2013 and no. E.2010/426, K.2013/198, the plant complies with the Regulation on High- Current Electricity Facilities, and it is explicit that factors such as disconnection of line, overturning of poles, noise and etc. would cause people to feel that they are in danger and to worry in terms of safety of their life and property. Besides, as seen from photographs submitted by the applicant in company with the application form, the impugned switchyard is located in close proximity to the applicant’s immovable.

71. The trial documents do not contain an exact measurement as to the distance between the plant and the applicant’s immovable and the noise caused due to operation of the plant. Regard being had to the close proximity of the plant to the applicant’s building, its continuous operation, level of noise likely to be caused by the continuously operating switchyard and the impact thereof on the applicant’s right to protect and develop his corporeal and spiritual existence, it has been concluded that the environmental nuisance in the present case constitutes an interference with the right enshrined in Article 17 of the Constitution. Therefore, the impugned environmental nuisance is of the gravity that would require an examination under Article 17 of the Constitution.

72. Following the determination that interferences occurring in the context of environmental issues have a direct impact on the right to protect and develop corporeal and spiritual existence, the question required to be discussed is whether the public authorities have taken necessary steps to ensure effective protection of this right. In this respect, it must be found out whether a fair balance has been struck between the interests conflicting due to the impugned environmental impact.

73. The EIA procedure -which is defined as the activities to be maintained in determining probable favourable and unfavourable impacts of the projects planned to be carried out on the environment, in defining and assessing measures to be taken for preventing unfavourable impacts or minimizing these impacts to the extent that would not damage the environment as well as alternatives of the place and technology chosen, and in monitoring and controlling the implementation of projects- means a process which aims at protecting environmental assets, is implemented for activities in the form of project, assesses probable unfavourable impacts and during which the holder of activity, public authority and the public are confronted with one another.

74. In this respect, the EIA is regarded as a method which is utilized for materialization of investments and activities carried out for development and economic improvement without destroying the nature and polluting the environment, has an impact on the decision-making process, thereby offers an alternative for the decision-makers in order to enable them to take their decisions properly and reveals the favourable and unfavourable aspects of these alternatives. The fundamental element tried to be protected through the EIA process is the environment and environmental assets (see the Court’s judgments no. E.2013/89 K.2014/116, 3 July 2014; and no. E.2006/99 K. 2009/9, 15 January 2009).

75. It is explicit that the public authorities have a wide margin of appreciation due to complex nature of the environmental decision-making processes. In this regard, it is not the Constitutional Court’s duty to examine the appropriateness of a decision taken by public authorities on the establishment and operation of a hydroelectric power plant at the relevant place. However, it is of importance to determine whether there are safeguards which would serve for striking the necessary balance between the individual’s fundamental rights and the public interest at stake, and in determining whether this obligation has been fulfilled, it must be ascertained whether the procedural safeguards at stake have been taken into consideration.

76. The applicant did not assert an allegation that he was denied of access to information regarding the environmental process and was not enabled to participate in the decision-making process but claimed that the incumbent court failed to duly assess the deficiencies occurring in the planning process and requested to be examined.

77. One of the most significant elements of the procedural safeguards in an environmental issue which has a bearing on the right to respect for private life, family life and home is the applicant’s opportunity to bring acts or negligence of public authorities before, and to have them duly examined by, an independent judicial authority.

78. Given the wide margin of appreciation held by the public authorities in this respect, the Constitutional Court’s duty is not, within the context of environmental issues, to determine how the environmental nuisance would be terminated or how its impacts would be reduced. Nevertheless, the Court is to assess whether the public authorities notably the judicial authorities have handled the issue with due diligence and have taken into consideration all relevant interests (see, for the ECHR’s approach in this respect, Mileva and Others v. Bulgaria, § 96).

79. In the complaint petition, the objection to the expert report and the rejoinder submitted by the applicant during the trial process, these considerations are put forth: the EIA report does not include any information concerning the establishment of the impugned switchyard at the Soğuksu Village. Any change that has been made is subject to the EIA report. As the switchyard, which is the project unit, is a substantial element of the hydroelectric power plant, the plant cannot be excluded from the scope of the EIA report, pursuant to Article 25 of the Environmental Impact Assessment Regulation. However, there is no assessment, in the EAI report that was previously obtained, concerning the switchyard and its environmental impacts.  Therefore, the switchyard was not subject to any assessment in terms of geology, flora and fauna, in sociological terms for being located at a residential area, in agricultural terms for being located at an agricultural land, and in terms of forestry for being in forest. It must be explicitly revealed whether the previous EIR report covers the switchyard, and the relation of the switchyard with the main plant must be established so that the legal status of the plant within the current EIA Regulation would be revealed. The place where the plant was established is a residential area where the applicant’s building is just nearby the plant. The high voltage transmission lines would be installed in a close proximity to his building. As these lines emit radiation over the surface of 600 m, they cause certain diseases including cancer. In this respect, a more comprehensive assessment must be made as the plant has impacts on both health and quality of life.

80. Besides, it has been observed that the first instance court ordered an on-site examination and expert examination at the disputed area for which an additional permission was granted in order to determine whether a separate and new EIA favourable decision was required to be taken for the area. According to the expert report, the forestland allocated for establishment of the switchyard is not an agricultural land which is covered by typical flora of the Black Sea Region and which does not have a variety of endemic plants. There are tea farms in the region but the facility to be established for hydroelectric power plant would not destroy the natural environment as long as necessary protection plans are implemented. Transmission line installed for the plant is 154 kV and 5 km in length and is therefore subject to selection criteria due to the provision specified in the point 32 of Annex-II of the Environmental Impact Assessment Regulation.  Accordingly, the area where the switchyard is located has not a natural specificity, and given the location and size of the plant, it is was found to be in compliance with the applicable EIA Regulation. The applicant raised an objection to the expert report on the ground that it did not include any assessment as to the impacts of the plant on his and residents’ health and quality of life. However, the court did not order a new expert examination; nor did it explain the justification in respect thereof. Although the quashing judgment of the Supreme Administrative Court also pointed out the deficiencies in the assessment made during the trial process, especially those within the expert report, this consideration was not paid regard to. Accordingly, the quashing judgment was put aside and the first instance decision was upheld.

81. One of the most important elements of the procedural safeguards required to be afforded to individuals who are involved in the environmental decision-making processes is to bring public authorities’ acts or negligence before, and to have them duly examined, by an independent judicial body. It is essential not to merely provide an opportunity to have recourse to these bodies but to ensure that the relevant public authorities meticulously deal with the issue, strike a balance by considering all interests and also enable individuals to participate in the process effectively, to submit their objections and evidence, to have them examined and to be provided with a justification concerning their material allegations.

82. In the present case, the applicant alleged that operation of the plant led to environmental nuisance, which had an adverse impact on his health and quality of life, and that the environmental assessment made by the relevant administration was insufficient. These main allegations are the most important elements in determining whether the public authorities struck a fair balance between the applicant’s interest and public interest. However, it has been observed that the applicant’s requests and objections were not assessed by the inferior courts. It has been further observed that the incumbent court’s examination and reasoning whereby an EIA report was not obtained for the plant was quite limited. It has been accordingly concluded that the applicant’s main allegations were not directly addressed; and that the applicant did not have the opportunity to have his allegations as to environmental nuisance duly examined by the judicial bodies.

83. In light of these findings, the Court concluded that the public authorities failed to fulfil their positive obligations to ensure the protection and effective enjoyment of the applicant’s right to protect and develop his corporeal and spiritual existence.

84. For the reasons explained above, the Court held that the applicant’s right to protect and develop his corporeal and spiritual existence, which is safeguarded by Article 17 of the Constitution, was violated. 

3.    Application of Article 50 of Law no. 6216

85. Article 50 §§ 1 and 2 of Law no. 6216 reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.  In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.   However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.  

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

86. The applicant requested that the violation be found and retrial be conducted.

87. It was concluded that Article 17 of the Constitution was violated.

88. As there is a legal interest in conducting retrial for redress of the consequences of the violation of the right to protect and develop corporeal and spiritual existence, it must be ordered that a copy of the judgment be sent to the Rize Administrative Court for a retrial.

89. The total court expense of TRY 1,998.35, which includes the court fee of TRY 198.35 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

V. JUDGMENT

For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 25 February 2016 that

A. The alleged violation of the right to protect and develop corporeal and spiritual existence be DECLARED ADMISSIBLE;

B. The right to protect and develop corporeal and spiritual existence safeguarded by Article 17 of the Constitution was VIOLATED;

C. One copy of the judgment be SENT to the Rize Administrative Court to conduct retrial for redress of the consequences of violation of the right to protect and develop corporeal and spiritual existence;

D. The total court expense of TRY 1,998.35, which includes the court fee of TRY 198.35 and the counsel fee of TRY 1,800, be REIMBURSED TO THE APPLICANT;

E. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date.

           

 

 

 

 

 

 

 

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(Mehmet Kurt [GK], B. No: 2013/2552, 25/2/2016, § …)
   
Case Title MEHMET KURT
Application No 2013/2552
Date of Application 11/4/2013
Date of Decision/Judgment 25/2/2016
Official Gazette Date/Issue 20/5/2016 - 29717
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violation of the right to protect and improve the corporeal and spiritual existence due to non-issuance of a favourable Environmental Impact Assessment decision and dismissal of the action filed in this respect.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to protect and improve one’s corporeal and spiritual existence Environment Violation Re-trial

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 2
10
17
Regulation 6
7
15
32
51
52
53
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