Mehmet Kurt Başvurusu

Mehmet Kurt Başvurusu

Mehmet Kurt, Application No: 2013/2552, 25 February 2016 [Right to Environment – Article 17 of the Constitution – Violation – Retrial]

A) 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 Power Plant which was to be constructed in İkizdere by a private company. Accordingly, a forested land of 69,881 m2 was allocated to the mentioned company. However, the permitted area of 69,881 m2 was not found appropriate for switchyard by the General Directorate of Turkish Electric Transmission Company. Thereupon, the company requested that the authorization for 6169 m2 portion of the permitted area to be revoked and an additional authorization to be granted for another area of 16,638 m2. Following the approval of this request by the ministry, the applicant filed a case before the Administrative Court of Rize to revoke the new authorization to no avail. Consequently, the applicant applied to the Constitutional Court stating that no favourable EIA decision was obtained for the switchyard; it was scientifically proven that the radiation emitted by the high-voltage transmission lines of the switchyard, crossing just over his apartment leads to many illnesses within the area of 600 metres; and he could not get any result from the case he had filed against the absence of an EIA report; therefore his rights under Articles 17 and 56 of the Constitution are violated.

B) Judgment and Reasoning of the Court

The Court found it appropriate to decide on the claims in consideration of Article 17. It emphasized that one of the most vital elements of the procedural guarantees related to the environmental issues which affect the right to respect for private and family life is the opportunity to bring a claim before the independent judicial bodies for the acts or omissions of the public authorities and have them examined in a duly manner. Finally, it came to the conclusion that the public authorities did not perform their positive obligations as regards the protection of the applicant’s right to protect and improve her corporeal and spiritual existence and effective usage of this right:

“As regards the application at hand, the most important and decisive factors for the assessment of whether the public authorities strike a fair balance between the public interest and the rights of the applicant are the claims put forward by the applicant that the environmental damage created by the plant affects the health and quality of his life negatively and in this regard the EIA conducted by the administration is not sufficient. In spite of these facts, the requests and objections of the applicant were not duly examined by the courts of instance. The review and the reasoning of the Administrative Court which concluded that the required EIA was not conducted remained quite limited in terms of substance and it did not directly respond to the main arguments of the applicant, thus it is deemed that the applicant could not find an opportunity for his claims to be heard thoroughly before judicial bodies.” (§ 82)

The Constitutional Court ordered a retrial.

C) Significance of the Judgment

This judgment is noteworthy as it points to the positive obligations of the State on environmental issues. Based on the constitutional provisions on the horizontal application of positive obligations and fundamental rights, it is stated that second paragraph of Article 56 of the Constitution must be taken into account when determining and evaluating the positive obligations of the public bodies in terms of environmental issues (§ 50). Taking into account the fact that the complaints related to environmental pollution are generally based on the activities of private enterprises, the Court points out that the provision in the second paragraph of Article 48 of the Constitution which reads as “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” forms one of the basis of the positive obligations of public authorities on environmental matters. Another notable point is the reference made in the judgement to the Principle 10 of the Rio Declaration and Article 6, 7 and 8 of the Aarhus Convention.