Press Release No: Individual Application 25/16
20.05.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF MEHMET KURT ON THE RIGHT TO PROTECT AND DEVELOP MATERIAL AND SPIRITUAL ENTITY

The Constitutional Court held, at its plenary meeting on 25/2/2016, with regard to the individual application lodged by Mehmet Kurt (application 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.

The Facts

The applicant is an owner of four-folded 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case brought before the Rize Administrative Court for the revocation of the EIA favourable decision, the act at stake was revoked on the ground that the environmental impacts of the EIA favourable decision were at the acceptable levels except for the calculation of aqua vitae to be left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had allocated the forested land of 69.881 m² as a switchyard for the Cevizlik Hydroelectric Plant, the authorization was revoked as this land was not found appropriate by the Directorate General of the Turkish Electricity Transmission Company (“the TEİAŞ”).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 27/10/2055 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.

The Applicant’s Allegations

The applicant maintained that although an EIA favourable decision was also required to be obtained for the switchyard built, upon the additional decision rendered by the Directorate General of Forestry, within the boundaries of the Soğuksu Village in Kalkandere / Rize where many persons were residing and he had a four-storey building within the scope of the “Cevizlik Regulator and Hydroelectric Plant Project”, this decision was not taken; that high-voltage transmission lines crossed just over his home within the scope of the switchyard built next to his immovable property, and it was revealed through results of scientific research that radiation emitted by these transmission lines around 600 m led to many illness including cancer. He also alleged that the noise caused by this plant while operating was far beyond the sufferable levels; and that therefore the residents could not maintain their daily lives and nor could they sleep at nights; and that he could not obtain any result from the case he had filed for non-existence of a EIA report concerning the plant in question. The applicant accordingly alleged that there had been a breach of the rights guaranteed under Articles 17 and 56 of the Constitution.  

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

In case where the interferences taking place in the context of environmental issues have a direct influence on the right to protect and develop the material and spiritual entity enshrined in Article 17 of the Constitution, it is possible to carry out an examination by means of establishing connection with legal interests falling within the scope of this article. It must be established whether the public authorities took the necessary steps to ensure the effective protection of this right and whether a fair balance was struck between the competing interests with regard to the environmental impact at stake.

It has been observed in the petition for filing a case which was              submitted in the course of the proceedings by the applicant, the petition for raising an objection to the expert report and the replication that the applicant made requests and raised objections concerning the fact that the relevant plant’s impacts on the health and life quality of him and the local community must be taken into consideration. It has been revealed that in spite of such objections, the court did not request a new expert examination to be conducted; and nor did it specify the ground thereof. Although the quashing judgment of the Supreme Administrative Court underlined the deficiencies concerning the proceedings and especially concerning the assessment within the scope of the expert report, it has been observed that these deficiencies were not eliminated; the judgment rendered by the Chamber were revoked and the first instance decision was upheld.

One of the most significant elements of the procedural guarantees required to be provided for the individuals who are parties to the environmental decision-taking processes is the opportunity to bring the acts and neglects of the public authorities before an independent judicial authority and to make them subject to a duly examination. Along with the opportunity for having recourse to these authorities, it must be ensured that the relevant public authorities deal with the issue with due diligence and strike a balance by means of paying regard to all relevant interests. It is accordingly requisite to ensure that the individuals effectively involve in the process, raise all kinds of objections and submit evidence and make these objections and evidence examined; and that all of their substantive allegations are discussed with justifications thereof.

In respect of the present application, the applicant’s fundamental allegations that the environmental disturbances resulting from the operation of the plant in question adversely influenced the health and quality of life and that accordingly the environmental assessment made by the administration was inadequate are the most significant elements in establishment of the fact whether the public authorities had struck a fair balance between the applicant’s interest and the public interest.  However, it has been observed that the applicant’s such kinds of requests and objections were not dealt with by the inferior courts. It has been revealed that the examination leading to the conclusion that an EIA report was not necessary in respect of the plant in question and the ground thereof were quietly restricted; that from this aspect, the applicant’s fundamental allegations were not directly addressed; and that the applicant could not obtain the opportunity to make his allegations concerning the environmental activity in question dealt with in a duly manner before the judicial authorities.

In the light of these findings, it has been concluded that the public authorities failed to fulfil their positive obligations for the protection of the applicant’s right to protect and develop her material and spiritual entity and ensuring effective enjoyment of this right.

It has been consequently held by the Constitutional Court that there was a breach of the right to protect and develop material and spiritual entity which is guaranteed in Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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