THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36220/97 
by Ahmet OKYAY and others 
against Turkey

The European Court of Human Rights (Third Section), sitting on 17 January 2002 as a Chamber composed of

Mr G. Ress, President
 Mr I. Cabral Barreto
 Mr L. Caflisch
 Mr R. Türmen
 Mr B. Zupančič
 Mrs H.S. Greve
 Mr K. Traja, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 9 December 1996 and registered on 24 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

 

THE FACTS

The applicants, whose names appear in the appendix, are Turkish nationals.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The Yatağan, Yeniköy and Gökova (Kemerköy) coal-power plants have been operated for many years by the Ministry of Energy and Natural Resources and the public utility company TEAŞ (Türkiye Elektrik Kurumu) in Muğla in the Aegean region of Turkey. In 1993 and 1994 the applicants, claiming that these three power plants had failed to obtain the requisite licences and constituted a danger to public health and to the environment, filed complaints with the relevant authorities and requested that they be closed down. Their requests were rejected.

Consequently, the applicants brought actions in the Aydın Administrative Court (on 16 July 1993 for Yatağan, on 18 July 1993 for Gökova and on 18 May 1994 for Yeniköy Power Plant) against the Ministries of Health, of Energy and Natural Resources and of the Environment, the public utility company TEAŞ and the Muğla Governor’s Office. They requested that the administrative action refusing to close down the power plants be annulled. They further asked the court to order an interim measure to suspend the activities of these power plants for causing irreparable harm to nature and to public health.

On 16 February 1996 experts’ reports were submitted to the court, stating that the plants emitted considerable amounts of nitrogen dioxide and sulphur dioxide and were not equipped with the obligatory chimney filters. The experts concluded that the power plants constituted a danger to a zone of 25-30 km in diameter.

On 20 June 1996 the court ordered the suspension of the plants’ activities. The defendants challenged this decision before the Regional Administrative Court. On 20 August 1996 the Aydın Regional Administrative Court upheld the decision of the Aydın Administrative Court.

On 3 September 1996 the Council of Ministers, despite the decisions of the administrative court, decided not to stop the activities of the three power plants.

On 30 December 1996 the Aydın Administrative Court, basing itself on the experts’ reports, decided to annul the decisions of the administrative authorities which refused the applicants’ request to close the three power plants.

On 6 June 1998 the Supreme Administrative Court upheld the decisions of the Aydın Administrative Court.

On 26 April 1999 the Supreme Administrative Court refused the defendant authorities’ requests for rectification.

The three coal-power plants have not yet been closed down and continue their activities.

B.      Relevant domestic law

1. The Constitution

Article 138 § 4

“Legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect, nor delay their execution.”

2. The Code on Administrative Procedure

Section 28 §§ 3 and 4

“3. In cases of failure to act or non-implementation of the Supreme Administrative Court, the Regional Administrative Court, the Administrative and the Tax Court decisions, an action can be brought against the administration before the relevant administrative court with a view to claiming pecuniary and non-pecuniary damages.

4.  In case of deliberate non-implementation of court decisions within thirty days by civil servants, an action for damages can be brought against the administration or the civil servant who refuses to implement the decision.”

COMPLAINT

The applicants complained under Article 6 of the Convention that their right to a fair hearing was breached. In this respect, they submitted that the administrative authorities refuse to execute the decisions of the Aydın Administrative Court which annulled the refusal of the administrative authorities to shut down the Yatağan, Gökova (Kemerköy) and Yeniköy coal-power plants in Muğla.

THE LAW

The applicants alleged that their right to a fair hearing was breached as the administrative authorities refuse to execute the decisions of the Aydın Administrative Court. They invoked Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. Government’s preliminary objection

In their observations the Government asked the Court to declare the application inadmissible as the applicants had failed to exhaust domestic remedies since they did not challenge the Council of Ministers’ decision of 3 September 1996 before the administrative courts.

The applicants contended in their replies that they have exhausted all remedies in domestic law and that they were not required to pursue any further remedy. In their opinion, the Council of Ministers’ decision of 3 September 1996 is null and void under the domestic law since it cannot set aside a court’s decision within the meaning of Article 138 of the Constitution.

The Court recalls that the obligation to exhaust domestic remedies is limited to making use of remedies which can provide effective and sufficient redress (see the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 71).

The Court observes that, as the applicants rightly pointed out, under Article 138 § 4 of the Constitution, legislative and executive organs must comply with court decisions. Furthermore, under Article 28 §§ 3 and 4 of the Code on Administrative Procedure, the administration should implement administrative courts’ decisions within 30 days of their notice. Accordingly, these organs can neither alter any court’s decision nor delay its execution. Nor can they invalidate or render the domestic courts’ decisions nugatory. The Court considers in this connection that the Council of Ministers’ decision of 3 September 1996 does not have a power to suspend the execution of the Aydın Administrative Court’s decisions.

The Court further considers that the applicants could indeed challenge the impugned decision and subsequently, under Article 28 § 4 of the Code on Administrative Procedure, claim compensation from the administration for non-compliance with the Administrative Court’s decisions. However, in the circumstances of the present case, the award of compensation would not be a sufficient redress for the applicants’ Convention grievances since their complaint pertains to the non-implementation of a binding final judicial decision to stop the power plants’ operation which gives irreparable harm to nature and to public health.

Against this background, the Court finds that the applicants were not required to bring any action before the administrative courts with a view to challenging the Council of Ministers’ decision or for an award of damages.

The objection must accordingly be dismissed.

B. Merits

The Government maintained that the applicants cannot be considered to have been denied a fair hearing, within the meaning of Article 6 § 1 of the Convention, as the national courts delivered decisions in their favour.

The applicants submitted that they have been a victim of a violation of their rights guaranteed under Article 6 § 1 as the national authorities refuse to execute the Aydın Administrative Court’s decisions.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and of fact under the Convention, including the question of the applicability of Article 6 § 1 to the proceedings, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible.

Vincent Berger Georg Ress 
 Registrar President

 

APPENDIX

LIST OF THE APPLICANTS

1. Ahmet Okyay is a lawyer resident in İzmir.

2.  Derya Durmaz, is a lawyer resident in İzmir.

3.  Rıfat Bozkurt is a lawyer resident in İzmir.

4.  Noyan Özkan is a lawyer resident in İzmir.

5.  Uğur Kalelioğlu is a lawyer resident in İzmir.

6.  Banu Karabulut is a lawyer resident in İzmir.

7.  Senih Özay is a lawyer resident in İzmir.

8.  Talat Oğuz is a lawyer resident in İzmir.

9.  Tamay Arslançeri is a lawyer resident in İzmir.

10. İbrahim Arzuk is a lawyer resident in İzmir

OKYAY AND OTHERS v. TURKEY DECISION


OKYAY AND OTHERS v. TURKEY DECISION