Can the protection of cultural heritage be the content of an individual application? An interesting case of the Court

JUDGMENT

Ahunbay and others v. Turkey 21.02.2019 (no. 6080/06)

see here

SUMMARY

In this case, five applicants complained that the planned construction of the Ilısu dam threatened
the Hasankeyf archaeological site, a place of archaeological and cultural interest dating back more
than 12,000 years.

The Court considered that the application was incompatible (ratione materiae) with the provisions of
the Convention (Article 35 §§ 3 (a) and 4). It noted that there was to date no European consensus, or
even a trend among the member States of the Council of Europe, which would have made it possible
to infer from the Convention’s provisions that there existed a universal individual right to the
protection of one or another part of the cultural heritage, as requested in the present application.

PRINCIPAL FACTS

The applicants are five Turkish nationals (two professors, an architect-archaeologist, a journalist and
a lawyer), who are or were involved in various projects on the Hasankeyf archaeological site in
Batman (Turkey). They were born between 1934 and 1963 and live in Turkey. One of them died in
2014 and his wife decided to continue the application.

In 1954 the National Water Board began exploratory work on the Ilısu project, focused on the
creation of a dam and a hydro-electric power station on the river Tigris. The plans threatened the
Hasankeyf archaeological site, which was officially classified as a category-one archaeological site in
1978.

In 1982 the Government identified the key areas for a major investment programme aimed at
developing the entire region of South East Anatolia (Güneydoǧu Anadolu Projesi), which included,
among other projects, construction of the proposed Ilısu dam.

In 1991 a budget was set aside for identifying, extracting, transferring, re-erecting and preserving
monuments on the Hasankeyf site which were visible or still buried underground. In 1998
archaeological excavation work began and the first discoveries were made at 289 sites. It was
estimated that 80% of the Hasankeyf site ought to be protected from the flooding. It was envisaged
that the monuments which were due to be covered by the dam waters would be dismantled and
transferred for subsequent reassembly in a national culture park.

In 1999 Mr Cano (a lawyer, and one of the applicants) lodged a prior request with the Prime
Minister’s Office seeking to have the project set aside. Following the tacit dismissal of his request, he
applied to the administrative court to have that decision set aside.

In 2005, once the plots of land in Hasankeyf which were to be earmarked for expropriation had been
identified, a public-interest declaration was published. The following year, an expedited
expropriation decree was issued and enforced. Construction of the dam is currently 90% completed.
At the same time, the work to transfer the Eyyubi, El Rızk and Süleyman Koç mosques is on-going.
In 2012 the administrative court dismissed Mr Cano’s action, and the Council of State dismissed his
appeal on points of law. He lodged an application for rectification of that decision, but the Court has
not been informed of the outcome of those proceedings.

THE DECISION OF THE COURT

The Court reiterated that the provisions of the Convention could not be interpreted and applied in a
vacuum.

The Court noted that the gradual increase in awareness of the values linked to conservation of the
cultural heritage and access to it could be regarded as having created a certain international legal
framework, and that the present case could consequently be falling within an evolving subject area.
In this context, and in view of the relevant international instruments and the common ground
contained in the norms of international law, even if these were not binding, the Court was prepared
to consider that there existed a shared European and international perception of the need to protect
the right of access to the cultural heritage. However, that protection generally focussed on situations
and regulations pertaining to the right of minorities to enjoy their own culture freely and the right of
indigenous peoples to maintain, control and protect their cultural heritage.

In contrast, it did not perceive, to date, any European consensus or even a trend among the member
States of the Council of Europe which might have required the scope of the rights in question to be
challenged or which would have made it possible to infer from the Convention’s provisions that
there existed a universal individual right to the protection of one or another part of the cultural
heritage, as requested in the present application.

The Court therefore declared the application inadmissible, finding that it was incompatible ratione
materiae with the provisions of the Convention (Article 35 §§ 3 (a) and 4)(echrcaselaw.com editing).

 


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