Individual Application

The Facts

The 2^nd Chamber of the Administrative Court annulled the environmental impact assessment (EIA) decision in favour of the power plant project to be built by a private company. Subsequently, an appeal was filed against this decision. During the appellate proceedings, another EIA decision in favour of the project was rendered and the applicants brought an action for annulment against the latest EIA decision before the 5^th Chamber of Administrative Court (“the trial court”). As the action for annulment had been ongoing, the relevant annulment decision against the first EIA decision was upheld by the Council of State. Therewith, the trial court ruled an additional report be drafted for the re-assessment of the EIA decision in favour of the project in light of the matters indicated in the reasoning of the upholding judgment of the Council of State. Accordingly, an additional expert report was prepared. Having assessed the expert reports and the upholding judgment of the Council of State as a whole, the trial court annulled the EIA decision. While the appellate proceedings were pending, a third EIA decision in favour of the project was issued. The municipality and the applicants brought separate actions for annulment against the latest EIA decision in favour of the project. As the proceedings in question had been ongoing, the trial court’s decision of annulment was quashed and the request for action was dismissed with final effect by the Council of State. Thereon, the trial court dismissed the applicants’ action for annulment against the EIA decision in favour of the project in consideration of the expert report issued in the action brought by the municipality concerning the same dispute and the impugned decision of Council of State. The Council of State upheld the trial court’s decision of dismissal with no prospects of rectification.

The Applicants’ Allegations

The applicants maintained that their right to respect for private life had been violated due to the dismissal of their action for annulment against the EIA decision in favour of a power plant project.

The Court’s Assessment

It should be noted at the outset that a part of the present application was declared inadmissible for being incompatible ratione personae in so far as it relates to certain applicants who lacked victim status for not being directly affected by the EIA decision in favour of the project, and to certain applicants whose legal personalities were not directly affected nor the rights in relation to the legal personality status were not violated.

Having assessed the judicial proceedings in the present case as a whole, the Court observed that the subject matter of the dispute was related to the waste landfill area of the power plant and the surrounding olive grove. Despite the dismissal decision against the EIA report in favour of the project due to waste landfill area, the Court has found that the case file did not include any information or documentation on whether a new plan for the location and boundaries of a waste landfill area had been formulated or whether any other area had been allocated for this purpose. Additionally, in the final decision dismissing the action, the Council of State confined itself with indicating that the contract had provided for the sale of the existing waste to be reprocessed in the market place and the storage of the unsold waste. Nevertheless, no assessment was included in this decision as to whether there was a need for a new waste landfill area for storage purposes. Although it was found that the plant had not utilised the waste landfill area during its operation, the decision did not put forward any assessment whether the plant delivered a solution for the existing waste that was intended to be stored, nor whether such a solution was examined by the EIA decision in favour of the project.

Furthermore, the inferior courts merely found that the waste landfill area of the power plant had not been used and that the contracts had been concluded for the sale or the storage of the existing waste, but did not inquire into alternative ways of re-purposing waste and the environmental impact of manners of waste storage and whether measures and obligations had been regulated in this regard. There has been no assessment of whether the above-mentioned matters were examined in the said EIA report and, if so, whether these matters were addressed in line with the relevant regulations. Therefore, the decisions dismissing the applicant’s requests for annulment on the grounds that the favourable EIA decisions were lawful lacked relevant and sufficient reasoning.

In addition, the earlier decision of the trial court established that olive groves were found less than three kilometres from the centre of the existing waste landfill area of the plant. However, the trial court indicated in its subsequent decision that there were no areas in and around the power plant which could be qualified as olive groves of economic value under Law no. 3573 on Olive Improvement and Grafting of Wild Species. The trial court failed to present explanations as to why its considerations contradicted the conclusion set out in its previous decision, nor did it provide any grounds to eliminate this contradiction.

Accordingly, the Court concluded that the incumbent public authorities failed to act with due diligence, to assess public and individual interests as required and to fulfil their positive obligations under the right to respect for private life.

Consequently, the Court has found a violation of the right to respect for private life.