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(Binali Özkaradeniz and others [GK], B. No: 2014/4686, 1/2/2018, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 

PLENARY

 

JUDGMENT

 

BİNALİ ÖZKARADENİZ AND OTHERS

(Application no. 2014/4686)

 

1 February 2018


 

 On 1 February 2018, the Plenary of the Constitutional Court found a violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution in the individual application lodged by Binali Özkaradeniz and Others (no. 2014/4686).

 

THE FACTS

 [10-33] The applicants are residing in a village located near a stream in the Susuz district of Kars.

 The Kars Governor’s Officer carried out an inspection over the sewage system of the district municipality and consequently ascertained that sewage was disposed to the stream without being subject to any treatment.

 Thereafter, the district municipality, taking into consideration the relevant legislation, prepared a “work termination plan” and submitted it to the Governor’s Office. However, it was noted in the “Environmental Status Report” issued afterwards by the Provincial Directorate of Environment and Urbanization that no wastewater treatment facility had been constructed in the region.

 Alleging that they were sustaining damage on account thereof, the applicants brought several actions for compensation against the municipality. However, the administrative court dismissed the actions. The applicants’ appellate requests against the administrative court’s decisions were also dismissed by the Council of State.

 V. EXAMINATION AND GROUNDS

34. The Constitutional Court, at its session of 1 February 2018, examined the application and decided as follows:

A. As regards the Applicant Binali Özkaradeniz

35. Pursuant to Article 80 § 1 (ç) of the Internal Regulations of the Constitutional Court, an individual application may be struck out of the Court’s list of cases in the absence of any reason justifying the continued examination of the application. It is also set forth in Article 80 § 2 thereof that the Court may proceed with the examination of the application if required for the implementation and interpretation of the Constitution or the determination of the scope and boundaries of fundamental rights and freedoms or ensuring respect for human rights.

36. In cases where the heirs of an applicant who has died after lodging an individual application fail to inform the Court, within a reasonable time, of their intent to pursue the application, the Court may find no ground to justify a continued examination of the application pursuant to the above-mentioned provisions of the Internal Regulations (see İskender Kaya and Others, no. 2014/7674, 23 March 2017, §§ 12-22). In the present case, the applicant Binali Özkaradeniz died on 14 August 2015 after lodging his application but his heirs failed to inform the Court of their intent to pursue the application within a reasonable time. Nor is there any reason to justify a continued examination of the application or any of the reasons specified in Article 80 § 2 of the Internal Regulations.

37. Accordingly, the Court decided to strike the individual application lodged by Binali Özkaradeniz out of the Court’s list of cases.

B. As regards the Other Applicants

1. The Applicants’ Allegations

38. The applicants complained of the disposal by the municipality of untreated sewage to a stream running along their village. They maintained that the villagers therefore suffered from diarrhoea, jaundice and similar types of diseases due to the water pollution caused thereby. They further indicated that this pollution also endangered the human and animal health as well as the environment.

39. The applicants complained that in the action for annulment they had filed upon the dismissal of their application with the relevant administration for taking of the necessary measures, their claim for compensation on account of the damage they had sustained was rejected unjustly although the administrative court found established the issues in question. They maintained that this pollution which was not compatible with human dignity amounted to torture and was, by its effects and consequences, in breach of their right to a healthy environment.

2. The Court’s Assessment

40. Article 20 § 1 of the Constitution titled “Privacy of private life”, insofar as relevant, reads as follows:

 “Everyone has the right to demand respect for his/her private and family life. .”

41. Article 5 of the Constitution titled “Fundamental aims and duties of the State” reads as follows:

 “The fundamental aims and duties of the State are to safeguard …, the Republic and democracy, 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.”

42. All legal interests 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 sense, it appears 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 accordingly appears that the rights enshrined in Article 8 of the Convention are basically set out in Articles 20, 21 and 22 of the Constitution (for the Court’s judgments in the same vein, see Hüseyin Tunç Karlık and Zahide Şadan Karluk, no. 2013/6587, 24 March 2016, § 41).

43. On the other hand, Article 17 § 1 of the Constitution enshrines the individuals’ right to protect and improve their corporeal and spiritual existence. The legislative intention of this provision sets forth that “… this provision secures the rights to life, as well as to protect and improve the corporeal and spiritual integrity. These two rights clearly form a whole and supplement one another. The State shall take the necessary measures so as to protect the right to life that is protected by law…”. Besides, as set forth in Article 5 of the Constitution, it is among the State’s positive obligations to ensure the necessary conditions for the improvement of the individual’s corporeal and spiritual existence. Therefore, the right to protect and improve the corporeal and spiritual existence laid down in these provisions must be considered as a framework regulation to be taken into consideration in terms of the safeguards pertaining to the fundamental rights and freedoms that are protected jointly by the Constitution and the Convention. However, the right to respect for private life is enshrined in Article 20 of the Constitution, and thereby afforded a special and separate safeguard. Therefore, the environmental issues that have a bearing also on the individual’s corporeal and spiritual existence must be examined under the right to respect for private life laid down specifically and separately in Article 20 of the Constitution. However, in assessing the positive obligations incumbent on the State within the meaning of the right to respect for private life, the statutory arrangements pertaining to the right to protect and improve the corporeal and spiritual existence must also be taken into account.

44. Within the scope of the protection of private life, several legal interests that are compatible with 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 his right to respect for private life. One of the legal interests inherent in 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).

45. The normative basis of the right to a healthy environment, in constitutional context, is the provision that everyone has the right to live in a healthy and balanced environment, which is set forth in Article 56 of the Constitution which is under the section titled social and economic rights and duties. 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 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.

46. 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 September 2013, § 16).The applicants’ allegations are related neither to the prohibitions of torture and ill-treatment nor to the right to life. Therefore, by the very nature of the alleged violations, the application was examined under the right to respect for private and family life.

a. Admissibility

47. It must be primarily assessed whether the environmental impact complained by the applicants attained the minimum level of severity required to trigger the safeguards inherent in Article 20 of the Constitution (for the Court’s judgments in the same vein, see Mehmet Kurt [Plenary], no. 2013/2552, 25 February 2016, § 67; Ahmet İsmail Onat, no. 2013/6714, 21 April 2016, § 82; and Hüseyin Tunç Karlık and Zahide Şadan Karluk, § 66).

48. In order for environmental issues to be assessed within the scope of Article 20 of the Constitution, 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 it has attained a minimum level of severity. However, the threshold of minimum severity is assessed by not determining whether the relevant legal values have been violated, but finding 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 the physical or mental integrity as well as general environmental context. The most important element to be taken into consideration in the assessments is undoubtedly the proximity of the applicant to the source of environmental pollution (for the Court’s judgments in the same vein, see Mehmet Kurt § 58; and Fevzi Kayacan (2), no. 2013/2513, 21 April 2016, § 53).

49. In this respect, the existence of an adequately close link between environmental impact caused by the relevant plant, facility or activity and the enjoyment of the applicant’s right to respect for his private life, family life and his home would be sufficient (for the Court’s judgments in the same vein, see Mehmet Kurt § 69; Ahmet İsmail Onat, § 84; and Hüseyin Tunç Karlık and Zahide Şadan Karluk, § 68).

50. By virtue of the amendment made to Law no. 2872 in 2006 by the legislator with respect to the treatment of sewage, the municipalities have been held liable to establish wastewater treatment system with a view to avoiding such environmental nuisance, and it is also prescribed that if the municipalities fail to establish such facilities within the specified period, a fine shall be imposed on them. Besides, Article 43 § 4 of the Water Pollution Control Regulation sets forth that in cases where the commitments specified in the work termination plan concerning the establishment of a wastewater treatment facility are not fulfilled for any reason other than force majeure, a criminal complaint shall be filed against those concerned. It is inferred from these arrangements introduced by the legislator and the relevant administration that disposal of untreated sewage to a stream constitutes a severe environment issue which may lead to unfavourable impacts. Considering the content of these arrangements and the severe sanctions prescribed therein, the Court has also acknowledged that the impugned environmental nuisance in the present case constituted a severe problem.

51. However, the impacts of the environmental nuisance in question on the applicants’ private and family lives and on their homes must be also assessed. It appears that both the applicants’ testator, Bekir Erdagöz, and the applicants themselves are residing in the Porsuklu village in Susuz District of Kars where the Susuz Small Stream runs along. It was found established by the Governor’s Office that the sewage was disposed to the stream in the applicants’ village without being subject to any treatment process by the municipality. As a matter of fact, the inferior courts reached the same conclusion and accordingly determined that such disposal of sewage to the stream had led to pollution likely to have hazardous effects on the applicants’ health.

52. Therefore, in line with the administrative and judicial authorities’ findings, the impugned interference -in the form of the disposal of untreated sewage to the stream- undoubtedly has adverse effects on the individuals residing in that region. It should be also noted that as indicated in the application form and annexes thereto, the applicants engage in agriculture and livestock. Therefore, the effects and consequences of the impugned stream pollution become much more important. In this sense, especially given the location of the stream in the present case, it must be acknowledged that the environmental impacts resulting from the disposal of untreated sewage to the stream are closely associated with the applicants’ private and family lives as well as with the use of their homes. Accordingly, given the impacts of the water pollution resulting from a public deed on the applicants within the framework of their right to respect for private and family life, it has been concluded that the impugned environmental nuisance constituted an interference with the right safeguarded by Article 20 of the Constitution. Therefore, it has been considered that the environmental nuisance complained of in the present case attained the severity required to fall within the scope of Article 20 of the Constitution.

53. The Court accordingly declared the alleged violation admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. M. Emin KUZ, Mr. Kadir ÖZKAYA and Mr. Recai AKYEL did not agree with this conclusion.

b. Merits

i. General Principles

54. The State is under the positive obligation to effectively protect and respect for the individuals’ right to respect for private and family life. In such kind of applications, it is highly difficult to distinguish between the negative and positive obligations incumbent on the State. Besides, the principles to be applied in these applications are mainly the same in terms of both the negative and positive obligations (in the same vein, see Hüseyin Tunç Karlık and Zahide Şadan Karluk, § 59).

55. The procedural obligations incumbent on the State in the context of environmental issues have been previously laid down in various judgments rendered by the Court. Accordingly, it is undoubted that in order to avoid or minimise any possible adverse environmental impacts, the interests of the parties involved in the given process must be assessed meticulously, and to make such a sound assessment, the relevant parties must be enabled to effectively participate in the process (see Mehmet Kurt §§ 61-66; Ahmet İsmail Onat, § 79-81; Fevzi Kayacan (2), §§ 56-61; and Hüseyin Tunç Karlık and Zahide Şadan Karluk, §§ 64, 65).

56. On the other hand, as regards the substantive obligations, what is important is whether the public authorities have taken the necessary steps so as to secure the effective protection of the right to respect for private and family life. In this sense, it must be assessed whether a fair balance was struck between the competing interests within the meaning of the impugned environmental impact. In this regard, given the wide margin of appreciation exercised 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 Mehmet Kurt § 78; Ahmet İsmail Onat, § 87; Fevzi Kayacan (2), §§ 66, 67; and Hüseyin Tunç Karlık and Zahide Şadan Karluk, §§ 70, 71).

57. The State has not only a duty to establish a protective legislation which secures a healthy environment within the meaning of the right to respect for individuals’ private and family life under Article 20 of the Constitution but also an obligation to supervise and perform factual acts and to take measures protecting the environment. In this sense, the State is to take the necessary measures so as to prevent the pollution as well as to preserve and develop the natural environment. Besides, the public authorities are afforded a wide margin of appreciation in determining which measures are to be taken and how they would be applied.

ii. Application of Principles to the Present Case

58. It was found established by the inferior courts at the end of the proceedings that the disposal of the sewage to the stream without any treatment by the municipality gave rise to water pollution; and that certain measures should have been taken so as to prevent this pollution. Besides, the Governor’s Office also reached the same conclusion at the end of the inspections it had carried out. Therefore, both the administration and the judicial authorities determined that the stream running along the applicants’ village had been polluted.

59. In the present case, the obligation not to dispose the untreated sewage to the stream in a way that might cause adverse effects on the individuals’ health within the scope of the right to respect for private and family life safeguarded by Article 20 of the Constitution is explicitly at stake. It is within the public authorities’ discretion to determine the way in which this obligation is fulfilled and the measures needed to be taken to that end. However, it is requisite to apply such measures through a speedy, reasonable and appropriate means with a view to giving rise to no violation of the relevant right.

60. In this context, by Provisional Article 4, added to Law no. 2872 through Law no. 5491, the municipalities are entrusted with the duty to establish sewage treatment facilities. By its Circular of 23 June 2006, the Ministry of Environment and Urbanisation also envisaged that the municipalities of the cities with the population of between 2.000 and 10.000 would submit their work termination plans until 13 May 2007 and would put the facility into operation within 10 years. Besides, Article 43 of the Water Pollution Control Regulation sets forth that the administration is liable to dispose of the collected wastewater within the scope of the principles specified therein, and the municipalities failing to fulfil these obligations shall be subject to certain sanctions. Given the needs underlying the above-mentioned legal and administrative arrangements as well as the grounds and purposes thereof, it has been observed that the failure to establish a sewage treatment facility is not specific to the present case but constitutes a common structural environmental problem across the country.

61. The Court has observed that the public authorities have been taking the necessary measures so as to prevent water pollution across the country, as required by the State’s positive obligations. As a matter of fact, the legislator has introduced a statutory arrangement on this matter, and the relevant administration has put this arrangement into operation. As regards the present case, it has been observed that the relevant municipality submitted its work termination plan concerning the treatment facility to the Governor’s Office within the prescribed statutory period.

62. Moreover, as in the present case, it is clear that the treatment facility deemed necessary to prevent environmental pollution involves a certain cost and can be established within the scope of a planning. Indeed, in the relevant statutory arrangement, the periods for putting the treatment facilities into operation are determined in consideration of the populations of the relevant settlements regard being had to the limited financial resources of the relatively small municipalities. In this sense, these periods are prescribed as 3 years for the municipalities of the cities with population of over 100.000 and as 10 years for the municipalities of the cities with population of 2.000 and 10.000. The Court acknowledges that the public authorities have a wide margin of appreciation with respect to the measures to be taken and acts to be performed accordingly.

63. The start of the implementation of these statutory and administrative measures taken with respect to the sewage treatment is of great importance for the resolution of this structural environmental issue. Also in the present case, it has been observed that a significant step has been taken to prevent the water pollution, and in case of the establishment of a treatment facility as envisaged, the impugned significant environmental problem having effects on the applicants’ private and family lives would be undoubtedly resolved.

64. However, the likelihood of implementation of certain measures in future is not capable of removing the applicants’ victim status given the particular circumstances of the present case. In order to remove their victim status, it is required that the reasons giving rise to the violation of the right in question be eliminated; and that the non-pecuniary damages sustained by the applicants be redressed in consideration of the period that has elapsed during the impugned violation.

65. As also mentioned above, in the present case, the disposal of the sewage to the stream, without being subject to any treatment -of which the applicants complained- resulted from a public deed and constituted a clear interference leading to the violation of the applicants’ right to respect for private and family life. In 2006, the Governor’s Office found established the impugned environmental pollution, and the date specified in the work termination plan, issued by the municipality with respect to the wastewater treatment facility to avoid the pollution, was 11 October 2012. Besides, the period of 10 years envisaged, for the establishment of wastewater treatment facility, in the statutory arrangement introduced by the legislator in Law no. 2872 in 2006, as well as in the Circular of the relevant ministry in the same year, also expired. However, the incumbent inferior courts found established, at the end of the action for compensation concluded in 2014, that the treatment facility that would prevent the impugned environmental pollution had not been established yet. It has been observed that according to the “Environmental Status Report” issued by the administration in 2017, the facility had not been commissioned yet despite the period that elapsed.

66. On the other hand, in the present case, the inferior courts noted that the applicants failed to prove any pecuniary damage they had sustained on account of the impugned interference and also dismissed their claims for non-pecuniary compensation. It appears that the reasoning parts of these decisions are mainly based on the construction of the treatment facility that would be completed in future. However, affording redress for the non-pecuniary damages sustained by the applicants due to the violation of their right to respect for private and family life would not only lessen the burden incurred by them due to the breach of their constitutional rights but also is important for producing the necessary deterrent effect to prevent future violations. Therefore, given the expiry of the period prescribed in the work termination plan and the failure to eliminate the impugned environmental nuisance pending the compensatory proceedings, merely the establishment of treatment facility in future cannot be deemed sufficient for the redress of the non-pecuniary damages that have been already or are still sustained by the applicants whose constitutional rights were violated. Accordingly, as the environmental nuisance was caused by the public authorities in the present case, the inferior courts’ decisions, which did not provide any reasonable explanation as to why it was not necessary to redress the non-pecuniary damages sustained by the applicants due to the infringement of their constitutional rights, cannot be considered as relevant and sufficient.

67. In the light of these findings, it has been concluded that the public authorities failed to fulfil their positive obligations with respect to the right to respect for the applicants’ private and family life.

68. For these reasons, the Court found a violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution.

Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Serruh KALELİ, Mr. M. Emin KUZ, Mr. Kadir ÖZKAYA and Mr. Recai AKYEL did not agree with this conclusion.

c. Application of Article 50 of Code no. 6216

 69. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, 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...

 (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.”

70. Bekir Erdagöz, testator of the applicants Memet Erdagöz and Belgüzar Çimendağ, claimed both pecuniary and non-pecuniary compensation in the application form but did not specify any amount.

71. In the present case, as regards the individual applications lodged by Memet Erdagöz and Belgüzar Çimendağ, the Court found a violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution.

72. As there is a legal interest in conducting a retrial to redress the consequences of the violation of these two applicants’ right to respect for private and family life, a copy of the judgment must be sent to the 1st Chamber of the Erzurum Administrative Court for a retrial.

73. As the order to send the judgment to the relevant court in order to conduct a re-trial would constitute sufficient just satisfaction for the non-pecuniary damages suffered by the applicants, their claims for compensation must be dismissed.

74. The court fee of TRY 206.10, which is calculated over the documents in the case file, must be reimbursed jointly to the applicants Memet Erdagöz and Belgüzar Çimendağ.

 VI. JUDGMENT

 For these reasons, the Constitutional Court held on 1 February 2018:

 A. UNANIMOUSLY that the individual application lodged by the applicant Binali Özkaradeniz be STRUCK out of the list;

 B. By MAJORITY and by dissenting opinion of Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. M. Emin KUZ, Mr. Kadir ÖZKAYA and Mr. Recai AKYEL, that the individual applications lodged by the applicants Memet Erdagöz and Belgüzar Çimendağ be DECLARED ADMISSIBLE;

 C. By MAJORITY and by dissenting opinion of Mr. Burhan ÜSTÜN, Mr. Serdar ÖZGÜLDÜR, Mr. Serruh KALELİ, Mr. M. Emin KUZ, Mr. Kadir ÖZKAYA and Mr. Recai AKYEL, that the right to respect for private and family life safeguarded by Article 20 of the Constitution was VIOLATED;

 D. That a copy of the judgment be SENT to the 1st Chamber of the Erzurum Administrative Court for a retrial in order to redress the consequences of the violation of the right to respect for private and family life (E. 2010/121, K.2011/28);

 E. That the applicants’ claims for compensation be DISMISSED;

 F. That the court fee of TRY 206.10 be REIMBURSED JOINTLY to the applicants Memet Erdagöz and Belgüzar Çimendağ; and the court expenses incurred by Binali Özkaradeniz be COVERED by him;

 G. That the payments be made within four months as from the date when the applicant applies 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;

 H. That a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICES BURHAN ÜSTÜN, SERDAR ÖZGÜLDÜR, KADİR ÖZKAYA AND RECAİ AKYEL

 The subject-matter of the individual application lodged by the two applicants is the alleged violation of Article 17 of the Constitution due to the dismissal of the actions for compensation that they had brought as one of the applicants suffered from hepatitis B while some animals of the other applicant died as a result of the disposal of their village’s sewage, without being subject to any treatment by the relevant municipality, to a stream running along the village.

 The examination of the decisions issued by the 1st and 2nd Chambers of the Erzurum Administrative Court clearly reveals that there is no certainty as to the transmission of Hepatitis-B virus from the stream water; that the allegation that the applicant’s animals died on account of the same reason was not proven (the applicant even failed to prove that the animals were in his possession); and that therefore, the alleged fault attributed to the administration could not be substantiated.

 Besides, it has been observed that as of the date when the individual application was lodged (31 October 2014), the period of 10 years envisaged for the relevant municipality to complete the treatment facility had not been expired yet. Therefore, it is not possible to attribute any fault to the administration also in this respect. Moreover, regard being had to Articles 65 and 166 of the Constitution, as the construction of treatment facilities of tens of thousands of settlements in the country would take a very long period and require financial resource, attributing fault to a small municipality merely on account thereof is devoid of a constitutional basis. As a matter of fact, both administrative courts (the Council of State upholding these decisions, as well) explained with a well-detailed reasoning that the administration had not had any fault or strict liability and accordingly dismissed the applicants’ claims for pecuniary and non-pecuniary compensation.

 These claims, which could not be substantiated and in respect of which no damage could be proven, amounted by their very nature to “actio popularis”. Given the possibility that the cases to be filed, by those residing in settlements with no or insufficient electricity, water, sewage network, road, health-care and education facilities, merely for such reasons may entail violations of several rights, as in the present case, it is impossible for the State to discharge this burden. As a matter of fact, the interpretation made through any examination under the right to a healthy environment alone without taking into consideration the other rights and by ignoring the State’s financial means would not be right and reasonable.

 The majority of the Court has considered that the alleged violation of the applicants’ right to protect and improve their corporeal and spiritual existence was inadmissible for being manifestly ill-founded. However, we disagree with the majority finding a violation of the relevant constitutional right in the present case.

DISSENTING OPINION OF JUSTICE SERRUH KALELİ

 In the present case where the applicant was residing in the Porsuklu village, Susuz district of Kars, an action was brought by the applicants for the prevention of water pollution after it had been revealed that the district sewage was disposed to the Susuz stream running along the village. The incumbent court found established that the relevant municipality had the responsibility to prevent such pollution but failed to take the necessary steps as required by the work termination plan it had issued in 2007 with respect to the wastewater treatment facility in accordance with the Ministry’s circular. The court found a gross neglect of duty on the part of the municipality for having remained inactive. The other action brought against the municipality, due to its failure to comply with the administrative decision, whereby compensation was claimed for the damages sustained on account of the impugned pollution was dismissed as the prescribed period 10 years for the establishment of treatment facility had not been expired yet and there was no neglect of duty attributable to the municipality which would entail liability to compensate. The dismissal decision was ultimately upheld.

 The applicants lodged an individual application with the Court as they had suffered from diseases, the environment had been put in danger and their right to a healthy environment had been violated due to the water pollution in their village.

 In the present case, the Governor’s Office found established that the sewage was disposed to the stream in the applicants’ village, which gave rise to pollution, and it is clear that this act of public nature constituted an interference with the applicants’ family lives and their right to protect and improve the corporeal and spiritual existence. The positive obligation incumbent on the State to effectively protect and respect for these rights is considered to amount to a constitutional safeguard. The application, which is not manifestly ill-founded, must be declared ADMISSIBLE and examined on the merits.

 The applicant, Binali Özkaradeniz, maintained that the Susuz stream had been polluted and no step had been taken to avoid this pollution; that he had been suffered from diseases; that his damages had not been compensated for; and that his right to a healthy environment had been violated. After his death in 2015, the application was pursed by his heirs.

 In the additional petition submitted, the scope of the alleged violation raised by the testator was extended, and it was maintained that there had been also violations of Article 13 of the European Convention on Human Rights (“the Convention”) as no permission for investigation against the municipal officials had been granted, as well as of the right to property for their being forced to leave their village.

 No examination can be made in respect of the extended allegations of the applicant’s heirs. The scope of the examination is limited to the allegations raised by the applicant within the prescribed period and their legal characterisation by the Court. Therefore, the application would be examined under the safeguards inherent in the right to respect for private and family life safeguarded by Article 20 of the Constitution, which is embodied within the general framework of the right to protect and improve the corporeal and spiritual existence enshrined in Article 17 of the Constitution, which corresponds to Article 8 of the Convention and entails the legal interests of the applicants in the present case.

 In the present case, it is clearly incumbent on the State to prevent the disposal of the untreated sewage to the stream running along the applicants’ village. In pursuance of this duty, the municipalities were held liable to establish a treatment facility in 2006 by virtue of Law no. 5491, and such facilities were envisaged to be put into operation within 10 years. This is undoubtedly a duty prescribed by the State to eliminate or avoid an environmental problem in accordance with the administrative principles, needs and resources.

 It is also undoubted that this duty could be performed within the scope of the planning introduced by the State, and that the public authority is afforded a wide margin of appreciation in this sense.

 Although it cannot be said that the damages sustained have been redressed by the fulfilment of the constitutional safeguards, inherent in the rights alleged to have been violated, through the measures applied by the State within a system and plan, it is also undoubted that that the damage incurred and the liability to compensate are to be covered by the public authorities as a positive obligation.

 The subject-matter of the present case is the dismissal of the applicants’ claims for compensation for the redress of the damages allegedly sustained due to the non-execution of the decision of the 2nd Chamber of the Erzurum Administrative Court, which ordered the annulment of the implicit dismissal of their request for taking of the necessary measures for the immediate prevention of water pollution.

 In other words, the applicants maintained that due to the non-execution of the annulment decision, the water pollution increased; that animal health in the region was in danger; and that cows, horses, sheep and several small cattle were destroyed. They accordingly claimed compensation for the pecuniary and non-pecuniary damages they had sustained. In the court’s decision, it was indicated that the pollution in the Susuz stream fell within the scope of the termination plan introduced by the legislator; that when the prescribed period was over and the facility was established, the water pollution could be prevented; that if the judicial decision ordering an intervention with the impugned water pollution was not executed before the expiry of the prescribed period, the administration would always face the risk of prosecution; and that in case of any damage resulting from water pollution, the redress of the damage incurred must be ordered pursuant to the principles of strict liability.

 As a matter of fact, it has been observed through the inquiry conducted into the complainant that there was indeed no animal registered in his name; that the cause of death of the dead animal (horse) was not the stream; and that the complainant did not submit any information and document proving his damage. For these reasons, the applicant’s claims for compensation were dismissed by the incumbent court.

 Given the possibility that the legal interest inherent in the rights such as the right to life and the right to a healthy environment could not be subject to human intervention, a high scrutiny and excessive delicacy are undoubtedly required in striking a balance between the risk, potential danger and damage to be incurred by the applicant and the public interest, thereby between the right interfered with and the one afforded protection.

 In the present case, although the inactivity by the relevant municipality has amounted to a neglect of duty, the applicants are to explain and substantiate the effects of the alleged violation on the quality of their private life and family life, if any, rather than the steps needed to taken accordingly. In the legal system, there are means available for the redress of any damages resulting from de facto and thereby proven violations.

 Although the needs raised by the applicants and the alleged violation of their right to a healthy life are true given the impugned water pollution, the efforts undertaken by the State to fulfil the duties incumbent on it cannot be ignored. Accordingly, the notion of damage needs to be ascertained based on the balance to be struck between the public intervention and the interests of the individual sustaining damage.

 In the present case, the claims for non-pecuniary compensation raised by the applicants through individual application are to be substantiated as it was found established through the court decision that neither their claims nor their pecuniary damages had been founded.

 It must be further explained how the impugned act caused the applicants suffering and distress of non-pecuniary nature despite the lack of an objective finding to the effect that they had subjected to a severe and unbearable suffering or situation having effect on their corporeal existence.

 As the applicants, who failed to explain the distress, suffering and psychological breakdown, did not submit any explanations and documents which would clearly demonstrate and prove the damage allegedly sustained by them, I do not agree with the Court’s majority finding a violation of Article 20 of the Constitution.

DISSENTING OPINION OF JUSTICE M. EMİN KUZ

 The majority of the Court declared admissible the individual application, lodged by the applicants upon the dismissal of the action for compensation brought due to the disposal of sewage to the stream without any treatment, and found a violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution.

 In the judgment, the majority declared the application admissible on the grounds that the sewage had been disposed to the stream running along the applicants’ village by the municipality without any treatment process; that as also found established by the official authorities, this disposal had had adverse effects on the villagers; and that the impugned environmental nuisance constituted an interference with the right safeguarded by Article 20 of the Constitution, which attained the severity to require an examination under the said provision.

 In the examination on the merits of the case, the majority concluded that there had been a violation of the right to respect for private and family life, by stating that the public authorities had already started to take the necessary measures within the scope of the positive obligations incumbent on the State to prevent the water pollution; that a statutory arrangement had been introduced on the same matter; that in the present case, the construction of the treatment facility had been started within the prescribed statutory period; that however, the application of certain measures would not remove the applicants’ victim status; and that to remove their victim status, the reasons giving rise to the violation in question were to be eliminated and the damages sustained by the applicants on account thereof were to be redressed in consideration of the duration of the violation found.

 In the judgment, I agree with the general assessments as to the “Admissibility” (§§ 47-50) and the principles laid down in the examination on the “Merits” under the heading of “General Principles”, with a reference to the previous judgments of the Court (§§ 54-57). However, I consider that the majority’s conclusion declaring the application admissible, the assessments on the merits under the heading of “Application of Principles to the Present Case”, the finding of a violation were not appropriate.

 As also noted in the judgment, the proceedings prior to the individual application consisted of two stages, namely “the action for annulment” and “the action for compensation”. The subject-matter of the individual application is the action for compensation which was dismissed and became final in 2014.

 In the decision issued at the end of the action for compensation brought by the applicants seeking compensation for the damages allegedly sustained due to the non-execution of the decision issued at the end of the action for annulment, which was not subject-matter of the present application.

 In the judgment, the majority of the Court indicated that “the damages sustained by the applicants for this reason must be redressed” (§ 64); and that “… merely the establishment of treatment facility in future cannot be deemed sufficient for the redress of the non-pecuniary damages that have been already or are still sustained by the applicants” and “… the inferior courts’ decisions, which did not provide any reasonable explanation as to why it was not necessary to redress the non-pecuniary damages sustained by the applicants due to the infringement of their constitutional rights, cannot be considered as relevant and sufficient” (§ 66). However, it has been observed that the action for compensation brought by the first applicant, the testator of the applicants, was dismissed as the damage allegedly sustained by the applicant could not be substantiated as also noted above; and that the first instance decision, which was also upheld by the Council of State, provided sufficient and relevant grounds to justify the dismissal of the applicant’s claims for pecuniary and non-pecuniary compensation by noting that the plaintiff failed to submit any information and document to prove the damage allegedly sustained by him and that no conclusion to prove the damage could be reached through the information and the documents requested by the court from the administration as well as from the relevant report. The majority’s acknowledgment that “the applicants sustained damage” on which they relied in finding a violation does not have any basis other than the abstract allegations specified in the application form.

 In finding a violation, the majority took into consideration the judgment rendered in the case of Dzemyuk v. Ukraine where the European Court of Human Rights (“the ECHR”) examined the environmental impacts of the impugned water pollution and found a violation of Article 8 of the Convention due to the failure of the public authorities to consider the environmental threats posed by the water pollution. However, this case concerns an applicant who lives in a region where a graveyard and a natural gas facility would be established (38 meters away from his house and water-well) and who has no other water supply. In the present case, it has been observed that the village where the applicants are living has other drinking and utility water other than the stream in question.

 As is known, certain conditions are sought for the examination of the environmental issues under Article 20 of the Constitution. In this sense, it is required that an impugned environmental nuisance has a direct effect on the applicants’ private and family life and such effect has attained a minimum level of severity; in other words, the impugned pollution has attained a severe extent (see Mehmet Kurt [Plenary], no. 2013/2552, 25 February 2016, § 58). The minimum level of severity necessitates an independent examination in every concrete case within the scope of certain criteria such as the intensity and duration of the nuisance, and its physical or mental effects, general environmental context, as well as the proximity of the applicant to the source of environmental pollution (see Mehmet Kurt, § 58).

 It appears that also in the ECHR’s case-law, in determining the level of gravity sought in order for the impugned environmental impact to trigger the safeguards set out in Article 8, the applicant is expected to provide concrete data revealing the level of impact (see Mehmet Kurt, § 68).

 The Constitutional Court also acknowledges that in principle, the burden of proof rests upon the applicants who must submit evidence in support of their allegations and provide explanations as to the constitutional right that was allegedly violated (see Veli Özdemir, no. 2013/276, 9 January 2014, § 19) and declares inadmissible the applications failing to fulfil this condition for being manifestly ill-founded due to an unsubstantiated complaint.

 In the present case, I consider that there was an interference as the stream run along the village but the alleged damage could not be proven. In the previous judgments on the same matter, the Court has sought the existence of a material damage so as to find a violation, and it also required that the risk of damage must become concrete, be substantiated with evidence and clearly comprehended. On the other hand, it has been observed that the applicants failed to submit concrete information and documents demonstrating the gravity of the effect for the assessment of the minimum level of severity; and that the proximity between the polluted stream and the village where they were living was not even indicated in the application form, which could neither be inferred from the majority’s judgment. I therefore consider that a violation was found in the present case, without the above-mentioned conditions being satisfied.

 For these reasons, I disagree with the majority’s conclusion declaring the application admissible and finding a violation as it should have been declared inadmissible for being manifestly ill-founded due to the applicants’ failure to substantiate their allegations.

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(Binali Özkaradeniz and others [GK], B. No: 2014/4686, 1/2/2018, § …)
   
Case Title BİNALİ ÖZKARADENİZ AND OTHERS
Application No 2014/4686
Date of Application 1/4/2014
Date of Decision/Judgment 1/2/2018
Joined Applications 2014/4778
Official Gazette Date/Issue 4/5/2018 - 30411
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


 

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to respect for private and family life Private life (surrounding environment) Violation Re-trial
Striking-out of the application

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law geçici 4
23
Regulation 43

01 February 2018 Thursday

Binali Özkaradeniz and Others [PA] (no. 2014/4686, 1 February 2018)

The Facts

The applicants are residing in a village located near a stream in the Susuz district of Kars.

The Kars Governor’s Officer carried out an inspection over the sewage system of the district municipality and consequently ascertained that sewage was disposed to the stream without being subject to any treatment.

Thereafter, the district municipality taking into consideration the relevant legislation prepared a “work termination plan” and submitted it to the Governor’s Office. However, it is noted in the “Environmental Status Report” issued afterwards by the Provincial Directorate of Environment and Urbanization that no waste water treatment facility was constructed in the region.

Alleging that they were sustaining damage as a result thereof, the applicants brought several actions for compensation against the municipality. However, the administrative court dismissed the actions. The applicants’ appellate requests against the administrative court’s decision were dismissed by the Council of State.

The Applicants’ Allegations

The applicants maintained that their constitutional rights had been breached due to disposal, by the municipality, of untreated sewage to the stream passing by near their village.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments:

As required by the right to respect for private and family life safeguarded by Article 20 of the Constitution, the public authorities are to prevent disposal of raw sewage to stream which would adversely affect health. In this respect, it is at the discretion of the public authorities to decide on the measures to be taken. However, it is compulsory to implement the prescribed measures in a reasonable and appropriate manner in order not to cause right violations.

It was ascertained by both the Governor’s Office and the inferior courts that disposal, by the municipality, of untreated sewage to the stream passing by near the applicants’ village had led to water contamination and that certain measures were to be taken for prevention of such contamination. This constituted an interference with the applicants’ right to private and family life.

Considering the relevant legislation, the district municipality prepared “a work termination plan” with regard to the water treatment facility and submitted it to the Governor’s Office. However, according to the “Environmental Status Report” issued by the relevant administration, this facility was not put into operation although a certain period of time had elapsed.

In the reasoning of the decisions dismissing the action of the applicants, the inferior courts mainly took into consideration the initiatives for construction of a treatment facility. Regard being had to the fact that, pending the applicants’ action for compensation, the relevant municipality failed to eliminate environmental disturbance despite the expiry of the period prescribed in the work termination plan, future construction of the treatment facility cannot be considered sufficient for redress of the non-pecuniary damage that has been already sustained and still being sustained by the applicants.

For these reasons, the Constitutional Court found a violation of the right to respect for private and family life safeguarded by Article 20 of the Constitution.

 
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