Failure to enforce judicial decisions against US company Cargill: violation of applicants’ right to effective judicial protection
Bursa Barosu Başkanlığı and others v. Turkey 19.6.2018 (no. 25680/05)
The case concerned the failure to enforce numerous judicial rulings setting aside administrative decisions authorising the construction and operation of a starch factory on farmland in Orhangazi (a district of Bursa) by a US company (Cargill).
The Court declared the application admissible for only six of the applicants.
The Court found in particular that, by refraining for several years from taking the necessary measures to comply with a number of final and enforceable judicial decisions, the national authorities had deprived the applicants of effective judicial protection.
Article 6 § 1
The applicants are Bursa Barosu Başkanlıǧı (Bursa Bar Association) and the Association for the Protection of Nature and the Environment (based in Bursa, Turkey), together with 21 individuals, Turkish nationals, who were born between 1947 and 1980 and who live in Bursa.
The company Cargill obtained an investment authorisation in 1997, then in June 1998 a building permit for the construction of a starch factory on farmland. In parallel the authorities amended the land-use plan on a number of occasions to allow the factory to be built. Other building permits were issued, together with an authorisation for waste production and management which was cancelled in 2004.
Between 1998 and 2000 the starch factory was built, in spite of the annulment by the Bursa Administrative Court and the Supreme Administrative Court of the numerous amendments to the land-use plan, as well as the suspension and/or annulment of various building permits issued by the Council of Ministers. Those decisions, which followed appeals by some of the applicants, were not enforced by the authorities. Currently the factory, which started production in 2000, is still operating.
In 2005 some of the applicants brought an action for damages for failure to enforce the judicial decisions. They partly won their case in April 2009 when the District Court ordered the Mayor of Gemlik to pay them compensation for non-pecuniary damage. That court, however, dismissed the applicants’ claims against the Prime Minister and the Civil Works Minister. The applicants appealed to the Court of Cassation, which found that the Administrative Court judgments had not been duly enforced, even though the Prime Minister, the Civil Works Minister and the Mayor could have seen to this. But the District Court refused, a number of times, to follow the Court of Cassation’s ruling.
Those proceedings are still pending.
In 2007 and 2008 two legislative amendments to the Land Protection and Use Bill were tabled by the Government in the National Assembly to rectify the situation of farmland used for non-agricultural activities. The Constitutional Court validated the second amendment (adopted on 26 March 2008).
That enabled Cargill to continue its activities in spite of the final court decisions delivered since 1998 and still not enforced to date.
THE DECISION OF THE COURT
Article 6 § 1 (right to a fair hearing)
1. Admissibility: The Court found that the application was admissible in respect of six applicants (Ali Arabacı, Ali Rahmi Beyreli, Nadir Erol, Levent Geçelli, Mustafa Özçelik and Yahya Şimşek), who had participated actively in the domestic proceedings seeking the annulment of the impugned administrative decisions and could claim to be victims, within the meaning of Article 34 (right of individual application) of the Convention, of the alleged violations of the Convention.
2. Whether Article 6 of the Convention was applicable: The Court took the view that Article 6 was applicable in the present case, as the dispute raised by the applicants had a sufficient connection with a “civil right” which they were entitled to claim. They had relied, among other things, on arguments concerning the harmful effects of the factory in question for the environment and the Court of Cassation, in its judgment of 26 May 2008, had acknowledged that they had a civil right.
3. Merits The Court found that at least from 12 January 1999 onwards and until 21 November 2008, when the Governor of Bursa issued Cargill with a fresh permit to continue its operations, the judgments of the administrative courts had genuinely not been enforced. It noted in particular that the Court of Cassation, in its judgment of 21 November 2009, had found that the Prime Minister, the Civil Works Minister and the Mayor of Gemlik had not enforced the administrative court judgments even though they could have done so.
As to the phase subsequent to the legislative amendment of 26 March 2008, which gave rise to the possibility of rectifying the situation of farmland used for non-agricultural purposes, the applicants had brought an action for annulment in the administrative courts, but the Court found that it was not necessary to speculate on the outcome of those proceedings. Nevertheless, the Court observed that the Court of Cassation had criticised the letter signed by the Prime Minister informing the company Cargill that fresh attempts had been made to establish an administrative and legal basis for the pursuit of its operations, in spite of the subsequent invalidation, with final effect, of the investment authorisation in respect of the factory. The amendment in question also meant that the factory had been able to carry on under fresh authorisations issued on this new basis. In this connection, the Court reiterated that one of the fundamental elements of the rule of law was the principle of legal certainty, whereby a final judicial solution to any dispute should not be called into question. The legislative amendment made it possible to render devoid of effect many final judicial decisions which had not yet been enforced. Consequently, the Court found that, in refraining for several years from taking the necessary measures to comply with a number of final and enforceable judicial decisions, the national authorities had deprived the applicants of effective judicial protection. There had therefore been a violation of Article 6 § 1.
The Court found, by six votes to one, that it did not need to examine the admissibility and merits of the complaints under Articles 2 (right to life) or 8 (right to respect for private and family life).
Article 41 (just satisfaction)
No award by way of just satisfaction had been sought at the time when notice of the application was given to the Government.
Judge Lemmens expressed a separate opinion (partly dissenting and partly concurring) which is annexed to the judgment(echrcaselaw.com editing).