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Malgorzata Kwiedacz-Palosz

4th October 2023

Access to Justice for a Greener Europe

The Aarhus Convention and the “victim status” before the European Court of Human Rights

Legal analysis by Małgorzata Kwiędacz-Palosz, Senior Fundamental Rights Lawyer

Case Cangi and Others v. Turkey (application no. 48173/18)

This article discusses a recent judgment of the European Court of Human Rights in a case concerning access to justice in environmental matters. Disappointingly, and as opposed to previous judgments, the Court failed to refer to the Aarhus Convention when assessing the “victim status” of the applicants, i.e. whether the applicants should be afforded standing to claim rights under the European Convention of Human Rights (ECHR).

The national administrative proceedings

The applicants were members of an informal movement they had created (called ELELE) intending to study and assess the legal, social, and environmental implications of gold mines in the Aegean region. In their capacity, six applicants challenged the Ministry of Environment’s decision to approve an environmental impact assessment report concerning the exploitation and the operation of the Kışladağ-Uşak open-pit gold mine by a private developer.

During the administrative proceedings, the court-appointed experts assessed inter alia the impact on the environment and the adequacy of prevention measures proposed by the developer. The applicants objected when the court excluded their questions from the file given to the experts. The court dismissed their objections, and subsequent appeals were dismissed without specific reasoning. The Constitutional Court of Turkey only ruled on one of the six applications, due to the individual applicant’s proximity to the mine and found no violation of procedural guarantees under Article 8 ECHR.

The case before the European Court of Human Rights (ECtHR)

Relying on Article 6 ECHR which guarantees the right to a fair trial, the applicants complained that their right to a fair hearing was violated on account of (i) the fact they were not allowed to put their questions to the experts (ii) non-communication of the expert opinions to them for comments and (iii) inadequate reasoning of the domestic courts to their objections to the conclusions of the experts. The ECtHR declared the application brought by the first four applicants as inadmissible as they were not personally affected by the mine's operations, as they had not lived in its vicinity.

The Court found the allegations brought by two other applicants to be admissible. It noted that the expert assessments were not general information or academic sources that could be considered as falling within public knowledge. The Court further found that the applicants did not have the opportunity to fully familiarize themselves with the evidence in the case file which the main experts had relied on, and therefore, found a violation of Article 6.

Commentary

Surprisingly, in this case on access to justice in environmental matters, the Court did not refer to the Aarhus Convention. The mere fact that Turkey has not signed the Aarhus Convention and has not acceded to it did not prevent the Court from explicitly relying on it in other Turkish cases, for example in the landmark rulings Taşkın and Others or Okyay and Others. Usually, in its jurisprudence under so-called procedural rights, namely the above-mentioned Article 6 and Article 10 ECHR (the freedom of expression), the ECtHR relies on the Aarhus Convention, which is premised on the idea of environmental protection as a public good.

Consequently, the Court applied a very strict reading of Article 6 ECHR and declared the part of the application inadmissible as the mine’s operations had not directly and personally affected the first four applicants, neither individually nor as members of an informal environmental movement.

As far as the standing of individuals is concerned, this is contrary to earlier case law of the Court. For example in the judgment issued in Okyay, the applicants’ exposure to the risks posed by three thermal powerplants, when they lived around 250 kilometres away, was not a decisive factor for determining the applicability of Article 6.

Moreover, the Court did not address the potential standing of the applicants’ association. This is contrary to a series of earlier cases, in which the Court adopted a flexible approach to the issue of who holds civil rights under Article 6 of the Convention. The Court had held, for example, that environmental protection associations qualify for protection: if they seek recognition of specific rights and interests of their members, of particular rights to which they have a claim as legal persons, such as the right to take part in decisions regarding the environment, or when there was a sufficient link between the dispute and the right claimed by the local environmental protection association, in particular given the status of the association and its founders, and the fact that the aim it pursued was limited in space and in substance.

This failure to invoke the Aarhus Convention was even more unexpected as the Court has recently acknowledged its importance and in March 2023 the current President of the Court asked at the hearing in the case Verein Klimaseniorinnen Schweiz and Others against Switzerland : ”Should we, in this specific context, either of environmental cases or of climate change, and given the vast majority of Council of Europe's States of parties to the Aarhus Convention, which gives specific rights to environmental associations, should we now, in 2023, review our existing case law in relation to the victim status of associations in such cases?”.  We hope that this statement will encourage the Strasbourg judges to pay more heed to the Aarhus Convention in the future.