Turkey: A Review Of The Individual Complaint Before The Turkish Constitutional Court On Environmental Protection As Part Of Right To Private Life

1. Background and Context

The Turkish Constitutional Court has made a significant ruling in the individual complaint of Eşref Demir. The case explores the connection between environmental protection and the state's obligation to safeguard the right to private life.

The complaint concerns the dismissal of a lawsuit filed against the approval of an environmental impact assessment (EIA) decision for a project to revise and expand a mining open-pit operation in the Yakuplu village of İliç district, Erzincan. The applicant alleges a breach of the right to privacy as a result of the lawsuit's dismissal.

The Ministry of Environment and Urbanisation granted approval for a mining complex project, which subsequently prompted a legal challenge from the applicant. The applicant contended that the project's environmental impacts were inadequately evaluated, with activities such as drilling and gallery operations taking place in pasture areas without the requisite permits, posing potential risks to agriculture and livestock. Moreover, the applicant argued that the chemicals employed in the project have the potential to adversely affect both human health and the ecological system. On August 7, 2019, a report was written by a committee of five experts as part of the legal proceedings. The report determined that the overall pollution impact was taken into account, commitments were made to safeguard water sources, and the project's chemical usage would not cause any additional problem. The report indicated that the project's overall adverse impacts were manageable, with 77.35% of the affected area consisting of forests and 22.36% consisting of pastureland.

Based on the expert report, the court rendered a decision on 26/9/2019, concluding that the project adhered to the regulations and ruled against the applicant. The applicant filed an appeal, however, the Council of State affirmed the decision on 20/2/2020.

2. The Allegations of Violation of Right to Private Life and the Analysis of the Turkish Constitutional Court

The applicant asserts that their right to fair trial, right to life, and right to private life were infringed upon. The Constitutional Court determines that the right to private life was violated due to insufficient consideration of the applicant's arguments during the legal proceedings and the absence of a comprehensive assessment of the project's effects on agriculture and livestock.

The applicant, who lives in a village directly affected by the project, highlights the risks associated with a nearby waste disposal facility, claiming that it releases dangerous chemicals. Although the applicant sought advice from professionals in different disciplines, they assert that their appeals were disregarded. Moreover, there were concerns regarding the potential harm inflicted upon pasture areas and the nearby livestock.

The Ministry of Justice is sceptical about the applicant's immediate and ongoing personal influence, raising doubts about their status as a victim. The applicant restates the negative consequences of mining operations, such as the ecological harm resulting from the use of chemicals and the dispersion of dust, which impede agricultural and livestock activities within a 30 km range.

The Constitutional Court, acknowledging the nature of the reported infringements, opts to investigate the case under the purview of the right to privacy. The central inquiry revolves around whether the alleged environmental consequences, as asserted by the petitioner, activate the protections outlined in Article 20 of the Constitution. The Court emphasises the significance of assessing the minimal magnitude of the environmental impact on the protections of the right to private life. Considering that the applicant lives in the same area as the project and is involved in livestock farming, the court highlights the importance of evaluating the consequences in accordance with Article 20 of the Constitution.

The court acknowledges the economic advantages of the project, but emphasises the deficiencies in the expert report, specifically the lack of an assessment on the allegations of the claimants. The Court observes that the evaluation of the project's activities' effect on livestock was lacking thorough deliberation.

The Court highlights that the judicial process did not sufficiently address the applicant's essential assertions. The statement underscores the importance of conducting a thorough and well-supported evaluation during legal proceedings.

3. Conclusion and Takeaways

This instance highlights the significance of carrying out thorough EIA for projects of considerable magnitude. Regulatory authorities must ensure that the decision-making process includes a comprehensive evaluation and appropriate measures to address potential risks to the environment, human health, and local livelihoods.

In order to bolster the credibility and efficacy of environmental assessments, it is imperative to assemble expert teams that encompass a wide array of specialists, including individuals with expert knowledge in agriculture, forestry, and other relevant disciplines. This guarantees a comprehensive assessment of potential effects on local communities and their customary practices.

The case underlines the necessity for substantial and comprehensive community involvement during the phases of project planning and assessment. It is important to ensure that local residents are given the chance to express their concerns, offer their opinions, and actively engage in decision-making procedures that could potentially impact their living environment and overall welfare.

It is crucial for authorities to meticulously strike a balance between their objectives of promoting economic growth and safeguarding the environment, as well as upholding the rights of individuals and communities. An intricate strategy is necessary, taking into account the immediate economic advantages as well as the enduring viability of the environment and local communities.

The case underscores the significance of reviewing judicial decisions. It is important for individuals and communities to have access to mechanisms that enable them to contest decisions that could potentially harm their rights. Judicial entities shall meticulously scrutinise allegations made by individuals, guaranteeing an equitable and comprehensive evaluation of the evidence.

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