BASIN DUYURUSU

22/02/2019

Individual Application 12/19

Press Release Concerning the Judgment Finding a Violation of the Right of Access to a Court Due to Dismissal of the Action for Annulment of the Decision on Environmental Impact Assessment

On 25 December 2018, the First Section of the Constitutional Court found a violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution in the individual application lodged by Demirdöven Köyü Tüzel Kişiliği and Others (no. 2014/14359).

The Facts

The General Directorate of Environmental Impact Assessment and Planning of the Ministry of Environment and Forestry rendered a favourable decision on the environmental impact assessment (EIA) concerning the Damla Regulator and Hydroelectric Power Plant Project planned to be constructed in a valley located in the Demirdöven Village in Yusufeli District of Artvin.

The decision was announced on the notice board of the Governor’s Office for ten days. The applicants, stating that it had been late when they had been aware of the decision, applied to the Ministry, requesting the revocation of the decision. However, their request was rejected.

The applicants brought an action for annulment before the administrative court, seeking the suspension of the project. The administrative court, ordering the suspension of the relevant project, subsequently dismissed the case as being time-barred.

In the reasoning of the decision, it was emphasized that the date on which a favourable decision on EIA was announced must be taken as the starting date of the time-limit for bringing an action. It was stated that while the time-limit for bringing an action had been sixty days following the announcement by the Governor’s Office of the impugned decision on EIA, it was brought out of this period.

Upon the applicants’ appeal, the decision was upheld by the Council of State. The applicants’ subsequent request for rectification of the decision was also rejected.

The Applicants’ Allegations

The applicants maintained; that the EIA report had been announced only on the notice board of the Governor’s Office; that it had not been possible for them to see the notice and the details specified therein; that they had been aware of the decision only when the contractor company had visited the village and told that they would start the process for construction of a hydroelectric power plant on the water they had been using; and that upon the administration’s response, they had brought an action on time. In this regard, they claimed that their right to a fair trial had been violated.

The Court’s Assessment

The right of access to a court safeguarded by Article 36 of the Constitution is not absolute and may be subject to limitations. However, in accordance with the principle of proportionality enshrined in Article 13 of the Constitution, the limitations in question must not preclude the right of access to a court or must not obstruct its enjoyment to an excessive extent.

In the present case, the applicants complained that as the announcement date of the EIA report by the Governor’s Office had been taken as the starting date of the time-limit for bringing an action, their right of access to a court had been violated.

In a similar case, the Constitutional Court stated that according to the legislation on environmental impact assessment, an announcement shall be made regarding the EIA process of the project planned to be carried out in place(s) where the residents would or might be affected, whereby the residents and institutions would be informed of the relevant decision and the subsequent process. Accordingly, after a favourable decision on EIA was rendered, an announcement should be made to the local people in a way to ensure their being informed of the process.  

In the present case, the favourable decision on EIA had been announced only on the notice board of the Governor’s Office. Nor was there any information or document indicating that apart from this method, no other method had been applied to enable the local people to be aware of the process or there had been another justification for accepting that they had been aware of the decision in some way.  

In this regard, it was concluded that expecting the applicants living in the village to follow the decision announced on the notice board of the Governor’s Office located in the city centre and to bring an action after the date of announcement was beyond the boundary of predictability within the scope of the principles of legal certainty and clarity. 

The fact that running of the time-limit for bringing an action from a period when the applicants had not yet been aware that they had the right to bring an action rendered the interference with their right of access to a court disproportionate.

In the light of the foregoing, the administrative court’s opinion regarding the time-limit for bringing an action that ran from the announcement date of the decision, which had not provided an opportunity to the applicants to be aware of the decision on EIA and the subsequent process, was a strict interpretation concerning their right of access to a court and made it extremely difficult for the applicants to enjoy this right.      

Consequently, the Constitutional Court found a violation of the right of access to a court within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution.

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