European Court of Human Rights judgment on the Bergama Mine in Turkey
Published by MAC on 2001-05-01While Newmont is getting in a tizzy over its exploits in Indonesia, Peru, not to forget the US and Ghana of course, a significant ruling has been made by the European Court of Human Rights in favour of farmers from the Bergama region who have tried to stop the Ovacik gold mine.
During the period of keenest litigation and protest the mine was operated by Newmont through its wholly owned subsidiary, Normandy; the company this June entered an agreement with the Candian junior, Frontier Pacific, to offload its interests in the Ovacik mine
The essence of the judgment is signfiicant. The plaintiffs had argued that their right to life and healthy environment would be violated - specifically by the use of cyanide - were the mine allowed to proceed. This was accepted by the highest administrative court in Turkey. For ten months the government and Newmont failed to implement it, by closing down the mine The Turkish cabinet then allowed the mine to continue operating from 2001, on the grounds that a final impact assessment had been made which signficantly reduced the likely dangers.
Indeed, the company claimed that, by using Inco's "cyanide destruction system", sealing the tailings pond, and operating a zero discharge system for waste water, Ovacik was possibly the safest of its kind anywhere in the world.
The European Court of Hunan Rights has not ordered closure of the mine, and it granted relatively small compensation to the plaintiffs for violation of their rights. Nonetheless an important precedent has been set - at least in Europe. But the battle is far from over.
Press release issued by the Registrar 10.11.2004
Chamber Judgment in the case of Ta Kin and Others v. Turkey
The European Court of Human Rights has today notified in writing a judgment[1] in the case of Ta kin and Others v. Turkey (application no. 46117/99).
The Court held unanimously · that there had been a violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life); · that there had been a violation of Article 6 § 1 of the Convention (right to a fair trial); and · that it was not necessary to examine separately the complaints under Article 2 (right to life) and Article 13 (right to an effective remedy) of the Convention.
Under Article 41 of the Convention (just satisfaction), the Court awarded each of the applicants 3,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in French.)
1. Principal facts
The applicants are 10 Turkish nationals living in Bergama or the surrounding villages. The case concerns the granting of permits to operate a goldmine in Ovacik, in the district of Bergama (Izmir).
In 1992 the limited company E.M. Eurogold Madencilik (which subsequently became known as Normandy Madencilik A. .) obtained the right to prospect for gold. The permit was valid for 10 years and also authorised use of the cyanide leaching process for gold extraction. In 1994, on the basis of an environmental-impact report, the Ministry of the Environment gave the company a permit to operate the goldmine at Ovacik.
The applicants, and other inhabitants of Bergama, asked for this permit to be set aside, citing the dangers of the cyanidation process used by the operating company, the health risks and the risks of pollution of the underlying aquifers and destruction of the local ecosystem. Their application was refused at first instance, but in a judgment of 13 May 1997 the Supreme Administrative Court allowed it. Referring to the conclusions of the impact study and other reports, the Supreme Administrative Court held that in view of the goldmine’s geographical position and the geology of the region the operating permit was not in accordance with the general interest on account of the risks for the environment and human health.
In application of that judgment, the Izmir Administrative Court set aside the decision to grant the mine an operating permit on 15 October 1997. Its judgment was upheld by the Supreme Administrative Court on 1 April 1998.
On 27 February 1998 the Izmir provincial governor’s office ordered the mine to be closed down.
In October 1999, at the Prime Minister’s request, the Turkish Institute of Scientific And Technical Research (TÜB TAK) produced a report on the impact of using cyanide for gold extraction at the mine, stating that the risks referred to by the Supreme Administrative Court had been removed or reduced to a level lower than the acceptable limits. On the basis of that report a number of ministerial decisions to issue or renew operating permits were taken, and on 13 April 2001 the operating company began its mining activities. The applicants challenged these decisions in the Turkish courts, obtaining a stay of execution. Some of the applications concerned are at present pending in the Turkish courts.
On 29 March 2002 the Cabinet decided “as a principle” that the operating company could continue its activities, but the Supreme Administrative Court ordered a stay of execution of that decision on 23 June 2004 pending a judgment on an application to set it aside. Pursuant to that judgment, the Izmir provincial governor’s office ordered the mine to cease gold extraction in August 2004.
The Normandy Madencilik company submitted a final impact study upon which the Ministry of the Environment and Forestry expressed a favourable opinion at the end of August 2004.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 25 September 1998 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 29 January 2004. Applying Article 36 of the Convention and Rule 44 of the Rules of Court, the President of the Chamber gave the Normandy Madencilik company leave to intervene in the proceedings as a third party. A hearing was held in Strasbourg on 3 June 2004.
Judgment was given by a Chamber of 7 judges, composed as follows:
Georg Ress (German), President,
Ireneu Cabral Barreto (Portuguese),
Lucius Caflisch (Swiss)[2],
Riza Türmen (Turkish),
Boštjan Zupan i (Slovenian),
Hanne Sophie Greve (Norwegian),
Kristaq Traja (Albanian), judges,
and also Vincent Berger, Section Registrar.
3. Summary of the judgment[3]
Complaints
The applicants alleged that both the granting by the national authorities of a permit to operate a goldmine using the cyanidation process and the related decision-making process had infringed their rights under Articles 2 and 8 of the Convention. They further alleged that the administrative authorities’ refusal to comply with the decisions of the administrative courts had infringed their right to effective judicial protection. They relied on Articles 6 § 1 and 13 of the Convention.
Decision of the Court
Article 8 of the Convention
The Court noted that, after weighing the competing interests in the case against each other, the Supreme Administrative Court had based its ruling that the mine’s operating permit was not consistent with the public interest on the applicants’ effective enjoyment of the right to life and to a healthy environment. In the light of that decision, no further examination of the substance of the case with regard to the margin of appreciation generally left to the national authorities in such matters was necessary.
With regard to the decision-making process, the Court noted that the decision to grant an operating permit had been preceded by a series of investigations and studies conducted over a long period. A meeting to inform the population of the region had been organised. The applicants and the inhabitants of the region had had access to all the relevant documents, including the study in the issue. The Supreme Administrative Court had based its decision in its judgment of 13 May 1997 to set aside the operating permit on those studies and reports. However, although that judgment had become enforceable at the latest when it was served on the administrative authorities on 20 October 1997, the mine’s closure had not been ordered until 27 February 1998, more than 10 months after delivery of the judgment and four months after it was served.
With regard to the period after 1 April 1998, the Court noted the administrative authorities’ refusal to comply with the court decisions and domestic legislation, and the lack of a decision, based on a new environmental-impact report, to take the place of the one which had been set aside by the courts.
Moreover, despite the procedural safeguards laid down by Turkish legislation and the practical effect given to those safeguards by judicial decisions, on 29 March 2002, in a decision which was not made public, the Cabinet had authorised the continuation of the activities of the goldmine, which had already begun working in April 2001.
In those circumstances, the Court considered that the authorities had deprived the procedural safeguards protecting the applicants of all useful effect. Turkey had thus failed to discharge its obligation to guarantee the applicants’ right to respect for their private and family life. The Court accordingly concluded unanimously that there had been a violation of Article 8 of the Convention.
Article 6 § 1 of the Convention
The Court noted that the judgment given by the Supreme Administrative Court on 13 May 1997 had had suspensive effect even before it became final on 1 April 1998, but had not been enforced within the time prescribed.
Moreover, on the basis of ministerial authorisations issued at the direct prompting of the Prime Minister, the company had resumed operating the mine on an experimental basis on 13 April 2001. That resumption had had no legal basis and amounted to circumvention of a judicial decision. Such a situation was incompatible with the rule of law and the security of legal relations.
That being so, the Court considered that the Turkish authorities had failed to comply effectively and within a reasonable time with the judgment given by the Izmir Administrative Court on 15 October 1997 and upheld by the Supreme Administrative Court on 1 April 1998, thus depriving Article 6 § 1 of all useful effect. The Court accordingly held unanimously that there had been a violation of the Convention in that regard.
Articles 2 and 13 of the Convention
As these complaints were the same as those submitted under Articles 8 and 6 § 1 of the Convention, the Court considered that it was not necessary to examine them separately under Articles 2 and 13 of the Convention.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Press contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.
[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
[2] Judge elected in respect of Liechtenstein
[3] This summary by the Registry does not bind the Court.