New Development
In its decision No. 2020/12802 and dated 1 November 2023 (“Decision“), the Constitutional Court of the Republic of Türkiye (“Constitutional Court“) ruled that the right to respect private life was violated due to the rejection of the lawsuit filed for the annulment of the environmental impact assessment (“EIA“) positive decision regarding the project for the revision and capacity increase of the open pit mining operation. The Decision published in the Official Gazette dated 16 January 2024 and numbered 32431 is available here (in Turkish).
What Does the Decision Rule?
The subject of the Decision is the violation of the right to respect private life guaranteed under Article 20 of the Constitution, due to the rejection of the lawsuit filed for the annulment of the EIA positive decision for the capacity increase of an open pit mining operation.
In the lawsuit filed at the first instance court for the annulment of the EIA positive decision, the applicant claimed that the environmental impacts of the project were not comprehensively evaluated within the scope of the EIA decision; that drilling, splitting and gallery activities were carried out without obtaining the necessary permits for pasture areas; that this situation will have a negative impact on agriculture and livestock; that the contaminated surface waters will affect the surrounding villages’ drinking water; and that the chemicals to be used in the project will harm human health and the ecological system.
The court, taking the expert report prepared during the trial process as a basis for its decision, rejected the lawsuit on the grounds that the project was prepared in accordance with the procedure stipulated in the legislation; the problems that may be encountered within the scope of the project were identified and examined in the EIA report; the necessary measures and commitments were sufficient and appropriate; the EIA report was in the proper format and sufficient in technical terms; and there was no violation of the law in the EIA positive decision. The appeal requests regarding the above-mentioned decision were also rejected.
The Applicant then applied to the Constitutional Court, claiming that his right to a fair trial, right to live and right to respect private life and family life had been violated. In its assessment of the application, the Constitutional Court found the application rightful and summarized the following points: (i) the committee that prepared the expert report did not include an agricultural engineer expert for the opinion on agriculture and livestock; (ii) the expert report did not make a substantive assessment as to whether livestock in the region was affected due to the pasture remaining in the project area; and (iii) the expert report merely stated that the pasture was destroyed in places and did not examine the possible effects of the project on livestock and the necessary measures, despite the Applicant’s substantive allegations in this regard.
Moreover, the Constitutional Court emphasized that although the expert report stated that the pasture in question would be rehabilitated at the end of the project and the damage caused would be compensated for, the impact of the mining activity, which would continue for a long time, on livestock, which is the main source of income in the region, should also be examined. It should be revealed whether the necessary measures were foreseen in the EIA report in this regard.
Finally, the Constitutional Court concluded that it is important to determine whether the public authorities have established a fair balance between the interests of the Applicant and the public, and in this context, the court did not evaluate the Applicant’s claims and objections affecting the outcome of the dispute, and the court’s examination and justification based on the expert report was limited in this respect. It did not provide a direct response to the Applicant’s specific allegations, and the Applicant did not have the opportunity to have these allegations duly evaluated before the judicial authorities.
Conclusion
In the light of its evaluations, the Constitutional Court stated that the public authorities did not properly evaluate the public and individual interests, and did not fulfill their positive obligations in terms of the right to respect private life. The Constitutional Court ruled that the right to respect private life guaranteed under Article 20 of the Constitution had been violated and ordered the court to hold a retrial to eliminate the consequences of the violation of respect to private life. This decision of the Constitutional Court is in the same direction with its previous decisions for similar applications.
