ITEMID: 001-67401
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TAŞKIN AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 2 and 13;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 11. The case concerns the granting of permits to operate a gold mine in Ovacık, in the district of Bergama (İzmir) The applicants live in Bergama and the surrounding villages.
12. Mr Sefa Taşkın, born in 1950, was formerly the mayor of Bergama. He now lives in Dikili, ten kilometres away from the Ovacık gold mine.
Mr Tahsin Sezer, born in 1952, lives with his family in the village of Çamköy, which is 300 metres from the mine. He is a farmer and owns land in the surrounding area.
Mr Ali Karacaoğlu, born in 1950, lives with his family in the village of Çamköy. He owns land adjacent to the mine, on which he grows tobacco and olive trees.
Mrs Günseli Karacaoğlu, born in 1976, is the wife of the muhtar (elected local official) of the village of Çamköy. She is a livestock farmer.
Mr Muhterem Doğrul, born in 1949, lives in Çamköy. He is a livestock farmer. He and his family own an olive grove adjacent to the mine.
Mr İbrahim Dağ, born in 1951, lives in Çamköy. He is a livestock farmer and owns agricultural land near the mine, on some of which olive trees have been planted.
Mr Ali Duran, born in 1976, lives with his family in Çamköy. He is a livestock farmer.
Mr Sezer Umaç, born in 1978, used to live in the village of Süleymanlı, which is 900 metres from the mine. He asserts that he left the village recently on account of damage to the environment.
Mrs Ayşe Öçkan is the widow of Mr İzzet Öçkan, who died on 13 January 2004. She lives in the Bergama area and owns land near the mine.
Mr Hasan Geniş, born in 1968, lives in the village of Süleymanlı. He is a driver.
13. The applicants alleged that, as a result of the Ovacık gold mine’s development and operation, they had suffered and continued to suffer the effects of environmental damage; specifically, these include the movement of people and noise pollution caused by the use of machinery and explosives.
14. On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş., received authorisation to begin prospecting for gold.
15. On 4 July and 12 August 1991 the Directorate of Mines at the Ministry of Mines and the Ministry for Forests issued the two required permits to the company.
16. On 14 January 1992 the İzmir Directorate of Public Works sent a letter to the Ministry of the Environment requesting its opinion on the Ovacık gold mine.
17 On 12 February 1992 the Ministry of Energy and Natural Resources issued the company with an operating permit for the Ovacık gold mine. This permit was valid for ten years and authorised the use of cyanide leaching in the gold extraction process.
18. On 22 June 1992 the company began felling trees in part of the forestry area granted to it. The rest of the forest was left untouched in order to form a protection zone.
19. In accordance with section 10 of the Environment Act (Law no. 2872 – see paragraph 91 below), the procedure for an environmental impact report was launched on the Ministry of the Environment’s initiative.
20. On 26 October 1992 a public meeting was held as part of the preparations for the impact report. During that meeting, the public criticised, inter alia, the tree felling and the use of explosives and sodium cyanide; they also expressed their concerns about the seepage of waste into underground water supplies. The experts attending the meeting were asked a number of questions about the waste-retaining dam, the risks in the event of an earthquake and the state in which the gold mine would be left after its closure. In particular, there were calls for a referendum and for the necessary measures to be taken.
The experts described other countries’ experiences in this area. Mr İpekoğlu explained that this type of activity always carried a certain risk, which had to be managed correctly. Mr Erdem criticised the way in which the impact study was being prepared and recommended that a new procedure be started.
The mayor, Mr Taşkın, explained that the municipal council had given considerable thought to the disputed gold mine and its impact on the environment. He stated that he was not against its operation; however, he did ask that the necessary measures be taken, particularly with regard to the waste-retaining dam and the introduction of a rigorous monitoring system. Finally, he pointed out that an earthquake had occurred in the region in 1938.
21. After twenty-seven months of preparation, the impact report was submitted to the Ministry of the Environment. On 19 October 1994, basing its decision largely on the conclusions of that report, the Ministry decided to issue an operating permit for the Ovacık gold mine.
22. The mine was ready to start operating as of November 1997, when the other administrative procedures had been completed and, according to the Government, all necessary measures had been taken in order to comply with national and international standards.
23. On 8 November 1994 some of the residents of Bergama and the neighbouring villages, including the applicants, applied to the İzmir Administrative Court requesting judicial review of the Ministry of the Environment’s decision to issue a permit. They based their arguments, inter alia, on the dangers inherent in the company’s use of cyanide to extract the gold, and especially the risks of contamination of the groundwater and destruction of the local flora and fauna. They also criticised the risk posed to human health and safety by that extraction method.
24. On 2 July 1996 the Administrative Court dismissed the applicants’ request. It held that the gold mine fulfilled the criteria set out in the environmental impact report and that the decision in issue had been adopted in accordance with the authorisation procedure for environmentally sensitive projects.
25. On 25 April 1997, with a view to protecting public order and preventing disturbances and in view of the numerous protests which had followed the delivery of the Administrative Court’s judgment, the İzmir provincial governor ordered that the mine’s operation be suspended for one month.
26. On 13 May 1997 the Supreme Administrative Court, to which the applicants had appealed, overturned the lower court’s judgment. It assessed the physical, ecological, aesthetic, social and cultural effects of the mining activity in question as described in the environmental impact survey and the various expert reports which had been submitted to it. It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use; it concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity.
The relevant passages of the Supreme Administrative Court’s judgment read as follows:
“The environmental impact report and expert reports examined the impact of cyanide use on the atmosphere, underground water sources, flora and fauna, the disturbance linked to noise and vibrations, and regional planning issues. [It is noted that] the potential for soil erosion in the region through the effects of water (flooding) and wind is relatively high and the level of erosion of forestry land falls into Categories 2 and 3 and, in certain areas, Category 1 ... The soil is permeable; the area forms part of the [high-risk zone] for earthquakes. Rainfall in the area in question will result in flooding in summer and spring on account of its distribution and force; flooding occurs in these seasons in the [proposed] tailings area. The region’s inhabitants use the groundwater; in the event of seepage, it could become polluted by toxic waste. Cyanide has a high pH value, which is influenced by rainfall: when the pH level falls, the cyanide may transform into hydrogen cyanide (HCN). HCN, a gas with a relatively low boiling point (25.7o), is likely to enter the atmosphere ... [In addition,] the risk of seepage of materials into the groundwater may last twenty to fifty years ... [and,] in the event of seepage into the atmosphere or soil, there may be adverse consequences for the environment and for the flora and fauna. [However, the above-mentioned reports note that guarantees such as] the operating company’s good faith, scrupulous observance of the conditions set out in the operating contract, and trust in the monitoring and supervision to be carried out by the central and local authorities led to the conclusion that the decision in question served the public interest ...
It appears from the above-mentioned reports that cyanide use in gold mining and the other heavy elements which are subsequently released constitute a potential risk which would endanger the environment and human health; in particular, when cyanide, an extremely toxic substance, mixes with soil, water and air, it becomes harmful to all living beings. Consequently, it is possible that waste material containing cyanide, after pumping to the retaining dams, could seep into and pollute water sources and other sites [where water is used] ... The region’s flora and fauna are also threatened. [Accordingly], it must be borne in mind that cyanide use poses a considerable risk to human health and the environment ...
In the light of the technical and legal conclusions and bearing in mind the State’s obligation to protect the right to life [and] to a healthy environment ..., it is appropriate to overturn the judgment appealed against, given that the gold mine’s disputed operational methods entail the risks set out in the environmental impact report and the expert reports and that, should those risks be realised, human health would be clearly affected, directly or indirectly, through environmental damage ...”
27. On 15 October 1997, in compliance with the Supreme Administrative Court’s judgment, the Administrative Court annulled the Ministry of the Environment’s decision to issue a permit.
28. On 1 April 1998 the Supreme Administrative Court upheld the Administrative Court’s judgment.
29. By virtue of section 52(4) of Law no. 2577 on administrative procedure (“Law no. 2577”), the Supreme Administrative Court’s judgment of 13 May 1997 entailed ipso facto a stay of execution of the Ministry of the Environment’s decision to issue a permit (see paragraph 97 below).
30. In a letter of 26 June 1997, the İzmir Bar Association asked the İzmir provincial governor’s office to ensure that the Supreme Administrative Court’s judgment was enforced and, accordingly, to order that all operations be halted at the mine.
31. On 27 June 1997 the İzmir provincial governor’s office replied that there had been no final judgment and that the Ministry of Energy and Natural Resources had expressed its support for the continuing operation of the mine.
32. On 20 October 1997 the Ministry of the Environment was served with the Supreme Administrative Court’s judgment. On 23 October 1997 the Ministry invited the relevant authorities to reconsider the conditions attached to the operating permits in issue in view of the Supreme Administrative Court’s judgment.
33. On 24 December 1997 the applicants sent letters containing enforcement notices to the Minister of the Environment, the Minister of Energy and Natural Resources and the Minister for Forests, as well as to the İzmir provincial governor, requesting enforcement of the administrative courts’ decisions.
34. On 6 January 1998 the applicants brought an action in damages before the Ankara District Court against, among others, the Prime Minister, the ministries concerned and the İzmir provincial governor for non-enforcement of the administrative courts’ decisions.
35. On 27 February 1998 the İzmir provisional governor’s office ordered that the mine be closed. According to the Government, the mine carried out no mining activities until April 2001.
36. On 3 March 1998 the public prosecutor at the Bergama Police Court brought criminal proceedings against the senior managers of the mining company, alleging that the company had used cyanidation in extraction operations at the mine without prior authorisation.
37. On 27 March 1998 the İzmir gendarmerie drew up a report following inspection of the site. It noted the use of three tonnes of cyanide, which had facilitated the extraction of a nugget of mixed gold and silver weighing 932 grams. This report also indicated that eighteen tonnes of cyanide were still stocked at the site.
38. On 25 November 1999 the Ankara District Court dismissed the applicants’ action in damages.
39. On 25 September 2001 the Court of Cassation overturned the judgment of 25 November 1999 and remitted the case to the first-instance court. It found inertia on the part of the ministers concerned, who had taken no measures to prevent extraction using the cyanidation process within the time-limit provided for in section 28(1) of Law no. 2577 (see paragraph 96 below), despite the fact that they had been notified of the Supreme Administrative Court’s judgment annulling the mine’s operating permit.
40. On 16 October 2002 the Ankara District Court, hearing the case on remittal, followed the Court of Cassation’s judgment and allowed the applicants’ claim.
41. The criminal proceedings were abandoned in February 2001.
42. On 12 October 1998, 28 January 1999 and 3 March 1999, the company contacted various ministries in order to obtain a permit. Specifically, it claimed to have taken additional measures to ensure better safety in the gold mine’s operation and referred, inter alia, to a risk assessment report on this question drawn up by the British company Golder Associates Ltd.
43. The then Prime Minister intervened directly with regard to the company’s request. On an application from him, the Supreme Administrative Court, in an advisory opinion of 5 December 1999, ruled that its judgment of 13 May 1997 could not be interpreted as an absolute prohibition on the use of cyanide in gold mining operations and that there were grounds for taking specific circumstances into consideration.
44. In a separate development, the Prime Minister instructed the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”) in March 1999 to prepare a report assessing the potential impact of cyanide use in the gold-mining operations.
In October 1999 TÜBİTAK’s report was submitted. It had been prepared by ten scientists who were experts in environmental issues, environmental law, chemistry, hydrogeology, geology, engineering geology and seismology.
The report concluded that the risks to human life and the environment set out in the Supreme Administrative Court’s judgment had been completely removed or reduced to a level within the acceptable limits, given that the mine was to use environmentally friendly advanced technology based on the “zero discharge” principle and that the risk of adverse impact on the ecosystem was, according to scientific criteria, much lower than the maximum acceptable level.
45. On 5 January 2000 the Prime Minister submitted the TÜBİTAK report to the Ministry of the Environment, requesting its opinion on the operation of the gold mine in question.
46. On 31 January 2000 the Ministry indicated its approval of the mine’s activities, in the light of the report’s conclusions.
47. On 5 April 2000 the Prime Minister’s Office drew up a report on the operation of the mine. The report concluded that, having regard to the additional measures taken by the company, the conclusions of the TÜBİTAK report, the Ministry of the Environment’s favourable opinion and the opinion of the President’s Administration, which had emphasised the economic importance of an investment of this type, the operation of the mine could be authorised.
48. On 1 June 2001 the First Division of the İzmir Administrative Court gave judgment following an application for judicial review, brought by eighteen residents of Bergama, including Mr Sefa Taşkın, with regard to the report issued by the Prime Minister’s Office on 5 April 2000. The Division decided to annul the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of the requested permits. It held that, notwithstanding the measures taken by the company, it had been found in judicial decisions which had become final that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine concerned and that it was impossible to conclude that those risks could be avoided by implementing new measures. Equally, it had been established that the risk connected with the accumulation of heavy elements or cyanide could persist for twenty to fifty years and was likely to infringe the right of the area’s inhabitants to a healthy environment. Accordingly, it was appropriate to conclude that the decision in issue could circumvent a final judicial decision and was incompatible with the principle of the rule of law.
49. On 26 July 2001, at the Prime Minister’s request, the Supreme Administrative Court decided to suspend execution of the judgment of 1 June 2001. It found that the report of 5 April 2000 did not constitute an enforceable decision and was not open to appeal before the administrative courts. In addition, it held that only the ministries concerned, namely those of the Environment, of the Interior, of Health, of Regional Planning, of Energy and Natural Resources and for Forests were entitled to rule on this matter.
50. On 14 February 2001 the Fourth Division of the İzmir Administrative Court, on an application for judicial review brought by fourteen residents of Bergama, found that no environmental impact report had been drawn up by the Ministry of the Environment in connection with the operation of the gold mine. Consequently, it dismissed the application without examining the merits on the ground that no enforceable administrative decision had been taken. The Supreme Administrative Court upheld this judgment on 26 September 2001.
51. On 28 March 2003, on an application by a Mrs Lemke, a resident of Bergama, the First Division of the İzmir Administrative Court decided to set aside the report of 5 April 2000.
52. Proceedings are pending before the administrative courts.
53. On 6 October 2000 the Directorate General of Forests adopted a decision which extended the operating permit which had been issued to the company on the basis of the TÜBİTAK report.
54. Initially, in a judgment of 21 November 2001, the Fourth Division of the İzmir Administrative Court dismissed the application for a stay of execution of the Directorate General of Forests’ decision.
55. However, on 23 January 2002, the First Division of the İzmir Administrative Court, on an application from Mrs Lemke, decided to suspend execution of the decision of 6 October 2000, considering that the issuing of such a permit was incompatible with the rule of law and that irreparable damage would result from its enforcement.
56. That judgment was upheld by the İzmir Regional Administrative Court on 20 March 2002.
57. In a judgment of 7 June 2002, the Fourth Division of the İzmir Administrative Court dismissed an application for judicial review lodged by eighteen residents of Bergama against the decision of 6 October 2000, considering that the latter had been based on the issuing of a permit dated 12 February 1992, which was valid for a ten-year period.
58. On 27 March 2003 the Supreme Administrative Court upheld the judgment of 7 June 2002.
59. In parallel, on 3 May 2002 the Directorate General of Forests gave permission, inter alia, for the establishment of a security area around the gold mine and for the construction of roads, a drilling zone and a waste-retaining dam.
60. On 13 November 2003 the Third Division of the İzmir Administrative Court, ruling on an application by Mrs Lemke, dismissed the application for a stay of execution of the Directorate General of Forests’ decision of 3 May 2002. That refusal was confirmed on 24 December 2003 by the İzmir Regional Administrative Court.
61. Proceedings are pending before the administrative courts.
62. On 22 December 2000 the Ministry of Health adopted a decision authorising continued use of the cyanidation process at the mine for an experimental one-year period. The company was notified of this authorisation by the İzmir provincial governor’s office on 24 January 2001.
On 2 February 2001 a supervisory and audit committee was set up at the İzmir provincial governor’s office. The company began mining operations on 13 April 2001.
63. On 24 May 2001 the application for judicial review lodged by several Bergama residents (Mrs Genç and others) was dismissed by the Third Division of the İzmir Administrative Court on the ground that the decision being challenged did not constitute an enforceable act.
64. On 24 June 2002 the Supreme Administrative Court upheld the judgment of 24 May 2001.
65. In a judgment of 10 January 2002, the İzmir Administrative Court, on an application by the İzmir Bar Association, decided to suspend execution of the provisional permit issued by the Ministry of Health, holding that the issuing of such a permit was incompatible with the rule of law.
66. That judgment was upheld by the İzmir Regional Administrative Court on 20 March 2002.
67. On 3 December 2002 the İzmir Administrative Court dismissed the application for judicial review brought by the İzmir Bar Association against the provisional permit on the ground that it did not have standing to bring the proceedings. On 12 November 2003 the Supreme Administrative Court upheld the Administrative Court’s judgment.
68. On 12 February 2004 the Ministry of the Environment and Forests extended the permit concerning “the chemical processing unit and waste pond” for a period of three years.
69. In a judgment of 27 May 2004, the Third Division of the İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000. In particular, it considered that the risks highlighted in the judgment of 15 October 1997 were, inter alia, linked to the use of sodium cyanide in the gold mine concerned and to the climatic conditions and features of the region, which was situated in an earthquake zone. It held that those risks and threats could not be eliminated by supplementary measures which continued to be based on the same leaching process. It also concluded that the issuing of the permit in issue was incompatible with the principle of the rule of law, in that that administrative decision was in reality intended to amend a judicial decision that had become final.
70. Proceedings are pending before the administrative courts.
71. On 13 January 2001 the Ministry of the Environment issued a three-year permit for the “chemical processing unit and waste pond”. On 16 February 2001 it also authorised the company to import sixty tonnes of sodium cyanide.
72. On 24 May 2001 the Third Division of the İzmir Administrative Court dismissed an application for judicial review brought by fourteen residents of Bergama against the issuing of a provisional operating permit to the company. It held that there was no enforceable administrative decision.
73. On 10 and 23 January 2002 the İzmir Administrative Court, acting on two applications for annulment of the provisional permit submitted by the İzmir Bar Association and a resident of the region, and having regard to the considerations set forth in the Supreme Administrative Court’s judgment of 13 May 1997, which had become final, ordered the suspension of the permit.
74. Proceedings are pending before the administrative courts.
75. On 29 March 2002 the Council of Ministers adopted a “decision of principle” stating that the gold mine situated in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir) and belonging to the company Normandy Madencilik A.Ş., could continue its activities. The decision was not made public. At the Court’s request, the Government sent the Court the text of the decision, which reads as follows:
“According to the reports drawn up hitherto, it has been established that the gold mine situated in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir), is a mining concern which contains mineral reserves amounting to 24 tonnes of gold and 24 tonnes of silver, provides employment for 362 persons and is worth 1,200 million United States dollars [USD] in added value to our country, including USD 280 million of direct revenue.
It has been established that the decision to be taken in respect of this investment is of some importance, in that it will pave the way for six other gold mines. These mines, which have been located through prospecting costing a total of USD 200 million, will, with an investment of USD 500 million, create 1,450 jobs and be worth USD 2,500 million to the economy in direct terms and USD 10,000 million indirectly.
Furthermore, according to experts in this field, our country has more than 6,500 tonnes of potential gold deposits, which represents a market value of USD 70,000 million, or USD 300,000 million taking added value into account.
According to the report prepared by the ten scientists from the Turkish Institute of Scientific and Technical Research in October 1999, ‘the suspected risks to human health and the environment have been completely removed or reduced to levels considerably lower than the maximum acceptable limits’.
Furthermore, given that the results of checks carried out during the test period permitted by the Ministry of Health were below the reference values, no negative data have been detected.
The ‘Chemical substances’ section of the report by the United Nations World Commission on Environment and Development (1987), which presented the concept of sustainable development to international public opinion for the first time, indicates that chemical substances represent 10% of international trade and that there are 70,000 to 80,000 types of chemical substance. Toxicity data is unavailable for 80% of these.
We note that the toxicity data for cyanide are known and that the cyanide leaching process, in development for over a century, is now at the leading edge of technology and can be applied without damage to human health provided that the necessary precautions are taken.
In examining the progress made by the Bergama/Ovacık gold mine over the past twelve years, it is appropriate to note that the cyanide leaching process described in the 1991 environmental impact report – that is, carried out without filtering, based solely on clay pressure and subject to natural decomposition in the waste pond – has been discontinued. Advanced technology is now in place: the base of the waste pond is lined with clay and a high-density polyethylene geomembrane, and a cyanide filtering unit, a heavy-metals purification system [duraylama], an inspection shaft and various measuring tools are also used.
For the above reasons, and bearing in mind their contribution to the country’s economy, it is considered advisable that the gold and silver mining concerns in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir), operated by the company Normandy Madencilik A.Ş. under permit no. IR3549 of 12 February 1992, should continue their activities.”
76. On 30 July 2002 the Eighth Division of the Supreme Administrative Court declared inadmissible an application for judicial review brought by the İzmir Bar Association seeking annulment of the Council of Ministers’ decision of 29 March 2002 on the ground of procedural irregularity.
77. On 7 March 2004 the Supreme Administrative Court, sitting as a full court, set aside the judgment of 30 July 2002. In particular, it held that the Council of Ministers’ decision had not been published in the Official Gazette and had not been made public, although it was clear that the resumption of the gold mine’s activities had been based on it. The Supreme Administrative Court held that, in view of the appellant’s inability to obtain a copy of the disputed decision, the court ought to have obtained one of its own motion with a view to ensuring effective exercise of the judicial appeal.
78. On 23 June 2004 the Sixth Division of the Supreme Administrative Court ordered a stay of execution of the Council of Ministers’ decision. It noted, inter alia:
“After the judgment which cancelled the Ministry of the Environment’s authorisation, it is clear that this Ministry did not decide to commission a new environmental impact report which would have enabled the operating company to demonstrate that it had taken measures to reduce or completely remove the adverse effects of the activity in question, as highlighted in the previously cited judgments ... Consequently, the Council of Ministers’ decision to authorise the activities of the gold mine in question was unlawful, given that the decision to issue a permit, based on the environmental impact report, had been overturned by the courts and that no other decision had been adopted pursuant to the Environment Act and the related regulations ...”
79. The application for judicial review of the Council of Ministers’ decision is still pending before the Supreme Administrative Court.
80. On 18 August 2004 the İzmir provincial governor’s office, referring to the judgment of 23 June 2004, ordered that production at the mine be halted.
81. In a letter of 27 August 2004, the Ministry of the Environment and Forests informed the Normandy Madencilik A.Ş. company that it was issuing a favourable opinion on the final environmental impact report submitted by the company.
82. The Normandy Madencilik A.Ş. company explained that, once the required permits had been issued in 1994, 1996 and November 1997, the gold mine was ready to start production. From 20 to 23 February 1998 production took place on an experimental basis. These activities were intended to provide an opportunity to check that the equipment was operating correctly, and were not geared towards commercial production. During this experimental period, 150 tonnes of ore were processed, producing 0.932 kg of gold, whereas the mine’s daily operational capacity was 1,000 tonnes of ore.
83. On 19 February 1998 the İzmir provincial governor’s office was informed of the experimental production. On 27 February 1998 it ordered the closure of the mine (see paragraph 35 above). In addition, it instituted criminal proceedings, abandoned in February 2001, against the company and its managers.
84. The rate of cyanide concentration in the tailings pond was measured until 27 February 1998. Those measurements show that the concentration rate was considerably lower than the internationally accepted norm. Furthermore, there was no seepage from the tailings pond into the surrounding environment.
85. The company pointed to the fact that there had been no activity at the gold mine after the administrative courts had ruled on the applications for judicial review. Subsequently, draconian new measures, which exceeded international standards, had been taken to ensure compliance with the specifications set out in the judicial decisions.
In addition, two reports on the risks connected to the tailings pond and the use of sodium cyanide had been drawn up. Both concluded that those risks were negligible.
86. In 1999, on the basis of the risk assessment reports, the company reapplied for an operating permit for the gold mine in question.
87. Following the TÜBİTAK report, drawn up at the Prime Minister’s request, the company obtained the necessary permits and began production at the mine in April 2001. It is still operating at present.
88. Since the resumption of production at the mine, several studies to assess the risks or operating conditions have been carried out by Golder Associates Ltd, by a monitoring and auditing committee set up by the İzmir provincial governor’s office and by the ministries concerned.
89. In addition, the company disseminates a monthly report entitled “The Ovacık Gold Mine’s Monthly Environmental Report” to the public, non-governmental organisations and universities.
90. Article 56 of the Constitution provides:
“Everyone has the right to live in a healthy, balanced environment. It shall be the duty of the State and the citizens to improve and preserve the environment and to prevent environmental pollution. ... The State shall perform this task by utilising and supervising health and social-welfare institutions in both the public and private sectors. ...”
91. Section 10 of the Environment Act (Law no. 2872), published in the Official Gazette on 11 August 1983, provides:
“Establishments and concerns which propose to carry out activities which might cause environmental problems shall draw up an environmental impact report. This report shall concern, inter alia, the measures proposed to reduce the detrimental effects of waste materials and the necessary precautions to this end.
The types of project for which such a report shall be required, its content and the principles governing its approval by the relevant authorities shall be determined by regulations.”
92. Section 28 of Law no. 2872 states:
“Whether or not negligence has occurred, a person who pollutes and harms the environment shall be responsible for the damage resulting from that pollution or the deterioration of the environment.
This liability is without prejudice to any liability which may arise under general provisions.”
93. Under section 13 of the Administrative Procedure Act (Law no. 2577), anyone who sustains damage as a result of an act by the authorities may, within one year of the commission of the alleged act, claim compensation from them. Should all or part of the claim be dismissed, or if no reply is received within sixty days, the victim may bring administrative proceedings.
Furthermore, under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts as to a defendant’s guilt (Article 53).
However, under section 13 of the Civil Servants Act (Law no. 657), anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may, in theory, only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where the act in question is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
94. The regulations on environmental impact were first adopted by the Ministry of the Environment on 7 February 1993. A second set of regulations followed on 27 June 1997. New regulations were adopted and published in the Official Gazette on 6 June 2002. The regulations currently in force are those which were published in the Official Gazette on 16 December 2003.
Under paragraph 7 of and Appendix I to those regulations, impact studies must be carried out on mining projects where the area of the site concerned is greater than twenty-five hectares. The procedure for preparing a report is launched following a request by the prospective developer to the Ministry of the Environment. An evaluation committee made up of experts and representatives from the relevant entities and from the prospective developer is set up (paragraph 8). This committee specifies how the public inquiry will be conducted (paragraph 9) and subsequently identifies the arrangements for and content of the impact report, which must be drawn up at the latest within one year following the decision on the report’s structure (paragraph 10). The ensuing report is made available to the public and examined by the committee, which determines whether it complies with the specifications and may ask for additional reports (paragraph 12). Finally, having regard to all the elements submitted for its consideration, the Ministry of the Environment decides whether or not to issue authorisation. The relevant provincial governor’s office informs the public of the Ministry’s decision through the appropriate channels. Where their requests for authorisation are refused, prospective developers may submit a new request, provided that all the circumstances which gave rise to the refusal have been removed (paragraph 14). In addition, whatever the Ministry’s decision, an application for judicial review may be made to the administrative courts.
Paragraph 6 of the regulations reads as follows:
“Where natural persons and legal entities plan to carry out a project that comes within the scope of these regulations, they must draw up an environmental impact report [Çevresel etki değerlendirme raporu – ‘impact report’ or ‘IR’], submit it to the relevant authorities and implement the project in accordance with the decision taken ...
Where no decision has been taken to authorise the project submitted for an impact report, or where no decision has been taken confirming that no such authorisation is necessary, no approval, authorisation or building permit may be issued in respect of those projects, and investment in connection with the project cannot take effect.”
95. Article 138 § 4 of the Constitution provides:
“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.”
96. The relevant parts of section 28 of the Administrative Procedure Act (Law no. 2577) provide as follows:
“(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities.
...
(3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities.
(4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.”
97. Section 52(4) of Law no. 2577 provides:
“The setting aside of a judgment gives rise ipso facto to a stay of execution of the decision.”
98. In June 1992 the United Nations Conference on Environment and Development, meeting in Rio de Janeiro (Brazil), adopted a Declaration (“the Rio Declaration on Environment and Development”, A/CONF.151/26 (Vol. 1)) intended to advance the concept of States’ rights and responsibilities with regard to the environment. “Principle 10” of this Declaration provides:
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
99. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe in application of Principle 10 of the Rio Declaration, and came into force on 30 October 2001. To date, thirty countries have ratified it. Turkey has not signed the Aarhus Convention and has not acceded to it.
The Aarhus Convention may be broken down into the following areas:
– Developing public access to information held by the public authorities, in particular by providing for transparent and accessible dissemination of basic information.
– Promoting public participation in decision-making concerning issues with an environmental impact. In particular, provision is made for encouraging public participation from the beginning of the procedure for a proposed development, “when all options are open and effective public participation can take place”. Due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public.
– Extending conditions for access to the courts in connection with environmental legislation and access to information.
100. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states:
“9. The Assembly recommends that the Governments of member States:
i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;
ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, preferably at constitutional level;
iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention;
...”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5050
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: AANNEMERSBEDRIJF GEBROEDERS VAN LEEUWEN B.V. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a limited liability company under Netherlands law (besloten vennootschap met beperkte aansprakelijkheid) which has its registered seat in Woerden. It was declared bankrupt in 1983.
It is represented before the Court by Mr W.T.J.G. Osse, a lawyer practising in Houten (the Netherlands). Mr Osse is also the trustee (curator) in the applicant company's bankruptcy proceedings.
A.
On 14 September 1982 the applicant company was subjected to a search of its premises by the public authorities. They confiscated the administration of the applicant company because there was a suspicion that the applicant company had been drawing up false invoices. The applicant company ceased trading.
On 24 August 1983 the Regional Court (Arrondissementsrechtbank) of Utrecht declared the applicant company bankrupt and appointed Mr Osse as trustee in the bankruptcy proceedings.
On 5 September 1985 the applicant company was notified of the closure of the preliminary judicial investigation (gerechtelijk vooronderzoek). On 11 October 1985 the applicant company received a notification that the prosecution would not be pursued in view of the time which had elapsed since the alleged offences had been committed.
Despite repeated requests, the administration of the applicant company was not returned to it by the public authorities until 29 January 1987.
On 26 April 1990 the trustee in the bankruptcy proceedings initiated civil proceedings against the State claiming compensation on behalf of the applicant company for the actions of the police and justice officials. He argued that these actions had retrospectively lost all justification given that the charges had been dropped. On 22 April 1992 the Regional Court of The Hague gave judgment rejecting the trustee's claims. The trustee lodged an appeal with the Court of Appeal (Gerechtshof) of The Hague.
On 21 October 1993 the Court of Appeal, in an interlocutory judgment, held that the actions of the State, although initially justified, had in fact lost all justification and that as a result the State was liable to pay damages. However, the obligation to pay damages might be mitigated, or lapse altogether, in light of circumstances which might appear from statements made by management personnel of the applicant company before the police in the criminal investigation. In order to establish whether or not this was the case, the Court of Appeal requested the State to submit documents from the criminal investigation file.
The State submitted statements made to the police by the applicant company's managing directors in which it was admitted that false invoices had been drawn up and that taxes and social security contributions had been unlawfully withheld.
On 27 October 1994 the Court of Appeal confirmed the decision of the Regional Court. The judgment included quotations from the above-mentioned statements of the managing directors. The Court of Appeal's reasoning included the following:
(Dutch)
“Op grond van deze verklaringen en de overige inhoud van het door de Staat overgelegde strafdossier is voldoende komen vast te staan dat er in de periode van in ieder geval 1980 tot de beëindiging van de bedrijfsactiviteiten in september 1982 valse facturen in de administratie van Van Leeuwen B.V. zijn opgenomen, dat er op diverse bouwwerken gebruik is gemaakt van werknemers die niet op de verzamelloonstaten waren verantwoord en dat er binnen deze vennootschap sprake was van een zogenaamd zwartgeldcircuit terwijl de directie wist dat daardoor aan de Staat en de betrokken sociale fondsen schade zou worden toegebracht door een geringere betaling of afdracht van belastingen en sociale premies. Deze feiten zijn in deze procedure ook niet uitdrukkelijk door de curator betwist.”
(Translation)
“It is sufficiently established on the basis of these statements and the other information contained in the case-file of the criminal proceedings that during the period from, at least, 1980 until trading ceased in 1982 forged invoices were entered into Van Leeuwen B.V.'s books, that on various building sites use was made of employees who were not accounted for on the consolidated pay slips and that there existed within this company a so-called circuit of illegal funds (zwartgeldcircuit), the management being aware that this would cause detriment to the State and the social-security bodies concerned through a reduction in payments of taxes and social-security contributions. Nor have these facts been explicitly contested by the trustee in the present proceedings.”
and
(Dutch)
“Bij de beoordeling van de schadevordering van de curator is voorts van belang dat het hof het aannemelijk oordeelt, zoals de Staat gemotiveerd heeft gesteld, dat een verdere strafvervolging niet direct zinvol was (niet in het algemeen belang) nadat het faillissement ... was uitgesproken, maar dat die situatie anders zou komen te liggen bij een spoedige opheffing van het faillissement en dat tot seponering van de zaak is besloten nadat in 1985 door het voortduren van het faillissement duidelijk was geworden dat met dit laatste risico geen rekening meer behoefde te worden gehouden, temeer nu de bedrijfsactiviteiten vanaf september 1982 waren beëindigd.”
(Translation)
“In reviewing the trustee's claim for damages it is further significant that the Court of Appeal accepts that, as the State has argued, proceeding with the prosecution would not really serve any useful purpose (would not be in the general interest) after [the applicant company] was declared bankrupt ... , but that the situation might be different if the bankruptcy proceedings were to be terminated speedily, and that it was decided not to proceed after it had become clear in 1985, from the continuation of the bankruptcy proceedings, that it was no longer necessary to take this latter risk into account, the more so since trading had ceased from September 1982 onwards.”
and
(Dutch)
"De hiervoor ... vermelde feiten en omstandigheden vormen het bewijs van een ernstige vorm van fraude die strenge en straffe maatregelen van de zijde van de Staat rechtvaardigen. ... Gelet op de uiteenlopende ernst van voormelde aan Van Leeuwen B.V. toe te rekenen omstandigheden en het enige steekhoudende verwijt dat de Staat bij de (trage) teruggave van de administratie van de vennootschap kan worden gemaakt, brengt de billijkheid mee dat de op de Staat in beginsel rustende verplichting tot vergoeding van de ... schade geheel komt te vervallen."
(Translation)
"The facts and circumstances mentioned above ... constitute evidence of a serious form of fraud justifying the taking of severe and strict measures by the State. ... Having regard to the varying degrees of seriousness of the aforementioned circumstances for which Van Leeuwen B.V. can be held responsible and the fact that the only convincing reproach which can be made of the State concerns the tardy return of the company's administration, principles of equity lead to the conclusion that the obligation on the State to provide compensation for the damage ... has ceased to exist."

The Court of Appeal also took into account the statement of the State according to which it had not been considered in the public interest to proceed with the criminal prosecution of the applicant company given that the applicant company had been declared bankrupt and had ceased trading.
On 22 December 1995 the Supreme Court rejected the appeal on points of law (cassatie) which had been filed on behalf of the applicant company.


ITEMID: 001-102822
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KUZMICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Mirosław Kuźmicz, is a Polish national who was born in 1968 and is currently detained in Białystok Remand Centre. He was represented before the Court by Mr J. Dek, a lawyer practising in Białystok.
From 18 September 2006 until the present day the applicant has been detained in Białystok Remand Centre.
The applicant submitted that he was held in a cell which was designed for two prisoners and measured 7 m². The cell was initially furnished with three beds, three stools, two small tables and two cupboards. A toilet annex was in the corner of the cell.
From 22 September to 1 December 2006, the cell was occupied by three detainees, including the applicant. From 1 December 2006 until an unspecified date, it was shared by four inmates, including the applicant. A fourth bed was added.
The Government submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission.
The applicant lodged a number of complaints with the State authorities and the remand centre’s administration about the overcrowding.
By letter of 20 April 2007 the Deputy Governor of Białystok Remand Centre informed the applicant that his complaint had been considered illfounded. It was stated that the situation in Białystok Remand Centre was no different from that in the rest of the country, since overcrowding was a general problem in Polish detention facilities.
The applicant did not bring a civil action to seek compensation for the infringement of his personal rights.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-73012
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CORSACOV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1981 and lives in Cărpineni, Moldova.
9. On 9 July 1998 the applicant, who was seventeen years old, was arrested on charges of theft. On the way to the police car he made an attempt to throw away a pocket-knife. After being alerted by a passer-by, the police officers A. Tulbu and V. Dubceac threw the applicant to the ground. According to the applicant, they also punched him in the face and handcuffed him. They also allegedly assaulted him all the way to the police station.
10. At the police station the police officers allegedly continued beating the applicant during questioning. They kicked him, punched him and beat him with batons all over his body and on the soles of his feet in order to obtain a confession. During the beatings he was handcuffed. He was also allegedly suspended on a metal bar for a long period of time. The Government deny these allegations.
11. On 10 July 1998 the applicant claims to have been taken by the arresting police officers to a forest for the reconstruction of the crime. He was allegedly beaten up on the way to the forest. In the forest, one of the officers allegedly put a gun to the applicant’s head and threatened to shoot him if he did not confess. He was released from detention in the evening. It appears from the documents submitted by the parties that the applicant confessed to having committed the theft. However, later the criminal proceedings against him were discontinued on grounds of lack of “constitutive elements” of an offence.
12. According to the Government, the applicant could not have been threatened with a gun by the police officers because they did not accompany him to the woods. He was taken to the woods for investigation purposes, but not for a reconstruction of the crime.
13. On 11 July 1998, the applicant’s state of health worsened and his mother took him to a doctor who established that he had suffered a head trauma and cerebral post-concussion syndrome.
14. On 13 July 1998 a forensic doctor examined the applicant and established that he had grey-yellowish bruises of 3 x 2 cm and of 6 x 5 cm around his right eye, right ear, lips and on the sole of his left foot. The soft tissue on his head and his teeth on the right side were painful when touched. The doctor concluded that the injuries could have been inflicted by blows with a blunt object, possibly in the conditions described by the applicant, and corresponded to the category of light corporal injuries.
15. On 13 July 1998 the applicant’s mother lodged a criminal complaint with the Prosecutor’s Office of Hânceşti County, asking it to institute criminal proceedings against the police officers who had allegedly ill-treated her son and threatened him with death.
16. On 14 July 1998 an ear, nose and throat specialist examined the applicant and concluded that he was suffering from hyperaemia and had a central perforation of the right tympanic membrane.
17. On 28 July 1998 another specialist concluded that the applicant was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with perceptive deafness.
18. Between 14 and 25 July, 30 July and 22 August, 2 and 17 September and 14 October and 3 November 1998, the applicant was hospitalised with the diagnosis of head trauma and sudden deafness (surditate de percepţie brusc instalată).
19. On 3 August 1998 the applicant’s mother was informed by the Hânceşti Prosecutor’s Office that her complaint had been dismissed on grounds of lack of “constitutive elements” of an offence. She appealed against that decision to a hierarchically superior prosecutor.
20. On 21 August 1998 the applicant’s mother received a letter from a hierarchically superior prosecutor of the Hânceşti Prosecutor’s Office informing her that her appeal had been dismissed. She appealed against that decision to the Hânceşti District Court.
21. On 16 November 1998 the Hânceşti District Court quashed the prosecutor’s decision to dismiss the applicant’s complaint about ill-treatment and ordered that an additional investigation be carried out. It found inter alia that it was undisputed that the applicant had sustained his injuries on 9 July 1998 either at the police station or on the way there; however, the circumstances were not clear. The court also found that the Hânceşti Prosecutor’s Office had not paid sufficient attention to the fact that since 9 July 1998 the applicant had been permanently undergoing medical treatment in hospital and had thus been prevented from attending school.
22. On 15 January 1999 the Hânceşti Prosecutor’s Office issued a new decision by which it again refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the police officers had to throw him to the ground in order to counter his attack with a knife on one of them. The decision relied on a medical report dated 14 January 1999 which stated that the injuries could have been inflicted either by a blunt object or by a fall. The applicant’s mother appealed to the Prosecutor General’s Office.
23. On 25 February 1999 the Prosecutor General’s Office quashed the decision of 15 January 1999 for being “premature” and the file was remitted to the Prosecutor’s Office of Hânceşti County for “additional review”. The Prosecutor’s Office considered inter alia that the investigation had failed to elucidate the circumstances of the alleged attack with a knife committed by the applicant on one of the police officers.
24. On 15 March 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it refused to institute criminal proceedings against the police officers on the ground that their actions did not disclose any signs of an offence.
25. On 25 March 1999 the hierarchically superior prosecutor quashed the decision of 15 March 1999 on the ground that the applicant’s alleged attack with a knife on the police officers had not been properly investigated.
26. On 9 April 1999 the Prosecutor’s Office of Hânceşti County issued a new decision by which it again refused to institute criminal proceedings against the police officers, because their actions were justified. At the same time the Prosecutor’s Office found that the applicant did not attack the police officers with a knife, but rather the police officers thought that there was a risk of his attacking them. The applicant’s mother appealed to the hierarchically superior prosecutor.
27. On 1 May 1999 the hierarchically superior prosecutor quashed the decision of 9 April 1999 and ordered the institution of criminal proceedings against the two police officers.
28. On an unspecified date, the applicant lodged a complaint with the Ministry of Internal Affairs.
29. On 14 June 1999 the Ministry of Internal Affairs informed the applicant that disciplinary sanctions would be imposed on police officers A. Tulbu and V. Dubceac only to the extent that they were found guilty in the criminal proceedings.
30. On 20 September 1999 the Hânceşti Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision.
31. On 18 November 1999 the hierarchically superior prosecutor of the Lăpuşna Prosecutor’s Office dismissed the appeal. In the decision it was stated inter alia that the injuries sustained by the applicant had been caused by his fall on 9 July 1998, when the applicant had made an attempt to throw away a knife but the police officers had thought that he was going to use it against them and had thrown him to the ground. The applicant’s state of health was “normal” and none of the witnesses had seen the police beating him. The applicant’s mother appealed.
32. On 10 February 2000 the Prosecutor General’s Office upheld the applicant’s appeal and ordered the re-opening of the criminal investigation. It stated inter alia that the investigation had been conducted “in an extremely superficial manner”. It instructed the investigators inter alia to re-hear the witnesses and the parties to the case and to investigate whether the police officers A. Tulbu and V. Dubceac had fired a gun in the woods. It also ordered the conduct of a medical investigation of the applicant and pointed to several contradictory statements of the witnesses and to procedural irregularities.
33. On 28 February 2000, at the request of investigator V.B. from the Hânceşti Prosecutor’s Office, an independent medical commission of four experienced forensic doctors performed a thorough medical investigation. On the basis of earlier medical certificates and of its own investigation the commission drafted a report which stated inter alia that:
“At the forensic examination it was found that [the applicant] had bruises around his right eye, right ear, on his lips and on the sole of his left foot.
From [the applicant]’s records it appears that at the age of eight months... he suffered purulent otitis in his left ear.
On 11 July 1998 a neurologist found that [the applicant] had suffered an acute head trauma with cerebrostenic syndrome.
On 14 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered from tympanic hyperaemia and had a central perforation of the right tympanic membrane as a result of a barotrauma [an injury caused by rapid and extreme changes in pressure] of 9 July 1998.
On 14 July 1998, [the applicant] did not appear to have any injury to his teeth.
On 28 July 1998 an ear, nose and throat specialist found that [the applicant] had suffered post-traumatic acute otitis media on the right side and agnogenic otitis on the left side. He suffered from sudden deafness (surditate de percepţie brusc instalată).
On 9 October 1998 a neurologist found that as a consequence of the head trauma [the applicant] was suffering intracranial hypertension with signs of epilepsy.
On 20 April 2000 [the applicant] was examined by an otolaryngologist who found that he was suffering from post-traumatic bilateral hypoacusis [slightly diminished auditory sensitivity, with hearing threshold levels above normal]. Hospitalisation was recommended.
...
1. On the basis of the above, the commission comes to the conclusion that M. Corsacov suffered injuries in the form of bruises on his face (right eye, right ear and lips) and the sole of his left foot; head trauma and concussion; post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis.
... The applicant’s injuries necessitated medical treatment of a long duration and could be qualified as moderately serious (mai puţin grave).
...
3. The commission does not have any objective grounds to believe that the injuries could have been sustained by the applicant prior to 9 July 1998.
4. The injuries were inflicted by blows with blunt objects (aceste leziuni au fost cauzate prin acţiunea corpurilor contondente (lovire)), possibly in the circumstances described by the applicant and they could not have been sustained as a result of a fall (n-au putut fi produse prin cădere).
5. ...Currently Mr Corsacov’s state of health is relatively satisfactory and he suffers of posttraumatic bilateral hypoacusis...”
34. On 10 June 2000 the Lăpuşna Prosecutor’s Office issued a decision dismissing the criminal investigation. The decision found inter alia that the applicant had had a knife in his hand but that he had not tried to attack the police officers with it. The applicant’s mother appealed against the decision.
35. On 12 July 2000 the Prosecutor General’s Office quashed the decision of 10 June 2000 and ordered that an additional investigation be carried out. It found inter alia that the quashed decision was illegal and had a tendentious character. It stated inter alia:
“Contrary to the conclusion of the medical commission, which clearly found that Corsacov’s injuries were inflicted by blows with a blunt object, possibly in the circumstances described by the applicant and that they could not have been sustained as a result of a fall, investigator V.B. indicated in his decision that the injuries were caused by the applicant’s fall...”
36. On 30 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the criminal investigation against the applicant for the alleged attack with a knife on the police officers on 9 July 1998. It found that there were no grounds to believe that the applicant intended to use the knife against the police officers.
37. On 31 August 2000 the Lăpuşna Prosecutor’s Office issued a decision by which the criminal proceedings against the police officers were also dismissed. It stated inter alia that the applicant had had a knife in his hand and that the police officers had interpreted that as a threat and had thrown him to the ground. Accordingly, the applicant had sustained his injuries by hitting the ground with his head while the police officers had been acting in legitimate defence. The applicant appealed against this decision.
38. On 21 January 2001 the decision of 26 August 2000 was quashed by the Prosecutor General’s Office and the criminal proceedings were re-opened.
39. On 28 February 2001 the Lăpuşna Prosecutor’s Office again dismissed the criminal investigation against the police officers. The applicant appealed.
40. On 20 March 2001 the hierarchically superior prosecutor from the Lăpuşna Prosecutor’s Office quashed the decision of 28 February 2001 and ordered the re-opening of the investigation.
41. On 20 June 2001 the Lăpuşna Prosecutor’s Office issued a decision by which it dismissed the applicant’s complaint. It stated inter alia that:
“... According to the medical certificate of 15 January 1998, Corsacov had bruises around his right eye, right ear, and consequences of a barotrauma, head trauma, which could have been caused by a fall and which fell in the category of light corporal injuries.
According to the conclusion of the Commission [the medical report of 28 February 2000], Corsacov’s teeth were not injured and it was discovered that he was suffering from post-traumatic acute otitis media on the right side and agnogenic otitis on the left side with bilateral hypoacusis, which could also have been caused by blows.
It is not disputed that the applicant was injured; however, his injuries were inflicted within the limits of the law. As to the agnogenic otitis on the left side, the applicant was suspected of having suffered from it since his childhood... According to doctor A.M., the agnogenic otitis on the left side is not connected with the otitis on the right side and could have been caused by a cold or an infection but not by a blow.
Deafness can have a multitude of causes, and in order to know its origin it is important to determine the moment of its appearance. In the present case it is impossible to establish the exact moment of commencement of the applicant’s deafness; more so since, in his first declaration, Corsacov stated that only after receiving the blows did he start to experience ringing in his right ear, but he did not say anything about the pain and the deafness in his left ear.
The police officers [A. Tulbu and V. Dubceac] and the witness C. stated that on 9 July 1998, on the way to the police station, no physical force was used against the applicant except when he was relieved of a knife that he had in his hand. Then, by means of a special technique, the applicant was thrown to the ground, which he hit with his head...
Corsacov admitted having had a knife and explained that he had been trying to throw it away in order to avoid trouble at the police station.
The police officers M.I and D.I. who were present at the police station on 9 July 1998 stated that nobody used physical force against the applicant in their presence, no handcuffs were used and that he was not beaten with a baton...
The applicant’s mother stated that in the evening of 9 July 1998 she saw her son at the police station and he did not have any injuries... The applicant’s uncle B.V. also stated that he had seen the applicant in the police station on 10 July 1998 between 1 a.m. and 2 a.m. and that he did not have any sign of injury... and the applicant did not complain to him about having been assaulted.
...
The injuries sustained by Corsacov were caused by his hitting the ground with his head when police officers A. Tulbu and V. Dubceac faced a real threat of injury. The officers acted within the limits of Articles 14 and 15 of the Law on Police while relieving him of his knife.”
42. The decision did not include any reference to the applicant’s allegation that on 10 July 1998 he was taken to the woods and threatened with death. The applicant appealed.
43. After 20 June 2001 the investigation was re-opened and closed on several occasions. The final decision closing the investigation was that of 10 January 2002 of the Lăpuşna Prosecutor’s Office.
44. After the case was declared admissible by the Court, on 7 November 2005, the Prosecutor General’s Office ordered the re-opening of the investigation. The re-opened investigation is still pending. According to the Government the re-opening was prompted by the Prosecutor General’s concern that the injuries sustained by the applicant in July 1998 had deteriorated into invalidity of the second degree which under Moldovan law is equivalent to a loss of working capacity of 50-75%, and that the applicant needed permanent medical treatment.
45. The Code of Criminal Procedure in force between 24 March 1961 and 12 June 2003 provides:
“Section 193. Written complaints concerning acts of the criminal investigation organs or concerning acts of the criminal investigator shall be addressed to the prosecutor.
Section 194. The prosecutor shall examine the complaint and communicate his decision to the interested person within three days of its receipt. If the complaint is dismissed, the prosecutor shall give reasons for his decision.
Section 195/1. The decisions of the criminal investigation organs and of the prosecutor may be challenged in court by an accused, a lawyer, a victim ....
The persons specified in the first paragraph have the right to challenge in court ...decisions regarding the suspension and dismissal of criminal proceedings ...
A complaint shall be addressed to the competent District Court within ten days of the date on which the interested person learns about the decision.
Section 195/3. A person whose rights have been infringed by a refusal to institute criminal proceedings may challenge in court the decision regarding the dismissal of criminal proceedings within ten days of the date on which he learns about the decision.
Section 195/4. ... The competent court shall examine the reasons for the refusal to institute criminal proceedings and their conformity with procedural law. Following the examination, the court can adopt one of the following decisions:
1) to quash the decision to refuse to initiate criminal proceedings;
2) to modify the reasons given for the refusal while upholding the refusal;
3) to dismiss the complaint....”
46. The old Criminal Code in force between 24 March 1961 and 12 June 2003 states:
“Section 185. ... An abuse of power accompanied by acts of violence, by use of arms or by acts of torture and humiliation is sanctioned with imprisonment of three to ten years and with a prohibition on carrying out certain activities for a period of up to five years. ...”
47. The old Civil Code in force until 12 June 2003 states:
“Section 475. Any damage caused to a person or to his or her goods... shall be entirely redressed by the person who caused it...
No duty of restitution shall arise in respect of damage caused by legitimate actions, except in the cases provided for by law.”
48. The Law on Police of 18 December 1990 states:
“Section 14. Conditions and limits of the use of force, special techniques and fire-arms
Police officers have the right to use force, special techniques and fire-arms in the cases and in the manner provided for in the present law. The use of force, of special techniques and of fire-arms shall be preceded by a warning about the intention to use them, and sufficient time shall be allowed for reaction, except in cases in which a delayed use of force... may generate a direct threat to the life and health of citizens or police officers or may lead to serious consequences.
...
In any case, when the use of force cannot be avoided, police officers are obliged to do their best in order to cause the least harm possible to the health, honour, dignity and goods of citizens, as well as to ensure medical assistance is provided to victims.
In case of injury or death caused as a result of use of force... the police officer shall report it to his direct superior, in order that the latter may inform a prosecutor.
The abuse of the power to use force... shall be punished in accordance with the law.
Section 15. The use of physical force
Police officers are entitled to use force and special fight techniques for the purpose of ending criminal activities and for neutralising resistance to legal demands, only in cases in which non-violent methods are not sufficient for the discharging of their obligations.”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-77817
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KAZARTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (striking out);Violation of Art. 6;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1940 and lives in Voronezh.
5. On 21 September 2000 the Levoberezhniy District Court of Voronezh accepted the applicant’s civil action against the Voronezh Regional Division of the Pension Fund (hereafter – the Pension Fund) and awarded him 887.73 Russian roubles (RUR, approximately 38 euros) in pension arrears. The judgment was not appealed against and became final.
6. Enforcement proceedings were instituted but on 27 April 2001 the bailiffs returned the writ of execution to the applicant without enforcement because the Pension Fund lacked the necessary funds.
7. On 13 December 2005 the judgment of 21 September 2000 was enforced in full.
VIOLATED_ARTICLES: 6


ITEMID: 001-118039
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF IVAKHNENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Dmitry Dedov;Helena Jäderblom;Mark Villiger
TEXT: 4. The applicant, Mr Aleksandr Sergeevich Ivakhnenko, is a Russian national who was born in 1960.
5. On 8 August 2002 the applicant was arrested. On 30 June 2003 a jury found him guilty of murder and rape; the Voronezh Regional Court sentenced him to twenty-one years’ imprisonment. On 22 December 2003 the Supreme Court of the Russian Federation upheld the conviction with minor changes.
6. From 16 August 2002 until 23 January 2004 the applicant was held in remand prison IZ-36/1 in Voronezh.
7. The parties submitted the following information on the characteristics of the cells in which the applicant had been detained:
8. The Government submitted that the number of detainees “had not exceeded the number of sleeping places”. In support of their submissions, they enclosed certificates signed by the prison governor and wardens on 12 December 2008. The Government also submitted two reports of 26 February 2006 and 5 April 2007, according to which the relevant prison documentation (including the prison population registers covering the period up to 2 August 2003) had been destroyed due to the expiry of the storage time-limits.
9. The applicant produced a copy of a letter from the Voronezh Regional prosecutor’s office dated 24 October 2005 in response to his complaint about the conditions of detention, in which the prosecutor acknowledged, in particular, the existing overcrowding in the cells in IZ36/1 and indicated that he had requested the prison governor to remedy the breach of the domestic legal requirements on the conditions of detention.
10. In October 2002 the applicant had trouble urinating and was diagnosed with prostatitis. He was told that he needed surgery; however it was not possible to perform it in pre-trial detention. The applicant was given injections and medicines that his relatives provided. The applicant produced a medical certificate of 30 November 2005 from the prison doctor confirming the diagnosis.
11. In August 2002 the applicant hurt his wrist. The wrist was bandaged and the applicant was given an ointment. The swelling went down. During transport to the correctional colony on 23 January 2004 the applicant hurt his wrist once again. He asked to be examined by a doctor. On 29 March 2004 an X-ray revealed a triple contracture of this wrist, and the applicant received treatment in the prison hospital, but the wrist mobility could not be restored.
12. The applicant complained to the Prosecutor’s Office that he had not had the necessary medical care. In his reply of 24 October 2005, the prosecutor informed the applicant that surgery on his wrist and adenoma were considered unnecessary.
13. The Government submitted the applicant’s medical records from IZ36/1 and his current place of imprisonment.
14. On admission to the Voronezh remand prison following his arrest on 19 August 2002, the applicant underwent a comprehensive examination. He did not make any complaints concerning his health. The following diagnosis was noted in the medical record: “varicosity of the lower limbs, encephalopathy, and flexion contracture of the right wrist”. The applicant underwent a urine test.
15. During his detention in IZ-36/1 remand prison the applicant contracted an allergic dermatitis and an abscess in his right buttock. Each time prison doctors gave him medication and the applicant felt better.
16. When he arrived at the correctional colony on 23 January 2004, the applicant did not make any complaints concerning his health. A medical examination confirmed the previous diagnosis of varicosity of the lower limbs.
17. On 17 May 2004 the applicant was examined by a prison doctor for his urination problem. The doctor noted in the applicant’s medical record: “prostatitis?”, and recommended consultation with a urologist.
18. On 20 May 2004 a surgeon from the Voronezh Regional Prison Hospital examined the applicant and recommended him a further examination in the Regional Prison Hospital.
19. On 11 June 2004 the applicant was transferred to the Voronezh Regional Prison Hospital. There the flexion contracture of the right wrist was confirmed and the applicant was prescribed out-patient treatment. The applicant had undergone some blood and urine tests. No prostatitis was diagnosed.
20. On 4 August 2004 the applicant was examined by the prison doctor who did not confirm a suspicion of the prostatitis.
21. On 9 January 2005 the applicant was examined by a prison doctor regarding his problems with urination. The doctor noted in the applicant’s medical record: “urethritis?”, and ordered some blood and urine tests.
22. On 10 January 2005 the results of the tests were within the normal limits and the diagnosis was not confirmed.
23. On 24 August 2006 the applicant was examined by the prison doctor. He did not have any particular urination complaints.
24. The Government – referring to the medical summary of 12 December 2008 prepared by the prison doctor – submitted that the applicant’s state of health did not require any surgical intervention on the adenoma, as he did not have any, or the wrist.
25. For a summary of the relevant domestic and international law provisions governing the conditions of pre-trial detention and the health care of detainees, see the cases of Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 25-58, 10 January 2012, and Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-64 and 73-80, 27 January 2011.
VIOLATED_ARTICLES: 3


ITEMID: 001-112434
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF HAYRETTİN DEMİR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre
TEXT: 5. The applicant, Mr Hayrettin Demir, is a Turkish national who was born in 1971 and is currently detained in Diyarbakır prison.
6. On 8 March 1995 the applicant and a number of suspects were arrested in the context of an operation led by security forces in Mardin on suspicion of membership of Hizbullah, an illegal organisation. Prior to being taken into police custody, the applicant was examined by a doctor who observed no sign of illtreatment on his person.
7. The applicant alleges that during his questioning by the police he was tortured and compelled to sign incriminating statements in the absence of a lawyer.
8. On 4 April 1995 the applicant was examined by a doctor who found no injuries on his person.
9. On 5 April 1995 the applicant was taken to the public prosecutor and the investigating judge, before whom he alleged that he had been ill-treated while in police custody. He claimed that he had been hung by his arms, given electric shocks and beaten by police officers. Later on the same day, the investigating judge placed the applicant in pre-trial detention.
10. On 11 April 1995 the applicant and twelve co-suspects, arrested in the same security operation conducted against Hizbullah, lodged a complaint with the Mardin public prosecutor, alleging that they had been ill-treated in police custody.
11. On the applicant’s request to the prison authorities to obtain another medical examination, on 12 April 1995 he was examined by a doctor in a public health clinic, who observed bruises on the inner part of the applicant’s lower arms, between his wrists and elbows.
12. The public prosecutor took statements in respect of the allegation of torture from a number of suspected police officers, who denied the accusations. They maintained that the bruises on the applicant’s arms, which were detected in a medical report obtained later, must have been caused after his release from police custody.
13. On 30 May 1995 the Mardin public prosecutor refused to commit the police officers for trial, taking into account the medical reports drafted at the beginning and end of the applicant’s detention in police custody, which had recorded no injuries on his body. In this regard, the prosecutor found that the applicant’s allegation of having been ill-treated in police custody was unsubstantiated. This decision was notified to the applicant on 13 July 1995.
14. In the meantime, on 23 May 1995, the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and twenty-four other persons, charging them with the membership of an illegal organisation and involvement in a number of illegal activities on behalf of the organisation, such as murder, assault and arson.
15. On 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.
16. Following the entry into force of Law no. 5190 of 16 June 2004, the criminal proceedings were transferred to the Diyarbakır Assize Court.
17. During the proceedings the Diyarbakır Assize Court reviewed the lawfulness of the applicant’s detention on a regular basis in accordance with Article 108 of Law no. 5271 and found that his pre-trial detention should be continued on account of the severity of the offences, the reasonable grounds of suspicion that he had committed those with which he was charged, and the state of the evidence in the case file.
18. On the basis of the range of evidence, namely confiscated documents of the illegal organisation, ballistic and autopsy reports, statements taken before the police, public prosecutor and judges, the medical reports drawn up at the beginning and end of police custody, statements taken during the trial from witnesses and other co-accused, on 31 March 2005 the Diyarbakır Assize Court established that the applicant, as a member of Hizbullah, had been involved in a number of terrorist activities, including the murder of numerous people. Subsequently, the trial court convicted the applicant of attempting to undermine the constitutional order of the State, as proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment.
19. On 1 June 2005 the new Criminal Code entered into force.
20. On 11 December 2006 the Court of Cassation quashed the judgment, holding that it should be revised in the light of the provisions of the new Criminal Code.
21. On 9 November 2007 the first-instance court once more convicted the applicant under Article 146 of the former Criminal Code and sentenced him to life imprisonment.
22. On 19 January 2009 the Court of Cassation upheld that judgment.
VIOLATED_ARTICLES: 13
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-87340
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOLAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1970 and lives in Novoaltaysk, a town in the Altay Region.
5. The applicant brought three civil actions against the Government and Ministry of Finance seeking to liquidate Soviet commodity bonds and saving certiﬁcates.
6. On 10 August 2001 the Novoaltaysk Town Court awarded the applicant 227,540 Russian roubles (“RUB”). This judgment became binding on 24 October 2001, but was not enforced.
7. On 25 December 2001 the town court awarded the applicant RUB 347,406. This judgment became binding on 24 April 2002, and was enforced on 20 September 2007.
8. On 25 December 2001 the town court awarded the applicant RUB 168,944.21. This judgment became binding on 24 April 2002. On 7 December 2004 it was quashed in supervisory-review proceedings. Nevertheless, on 2 June 2006 the sum due was by mistake paid to the applicant. The Ministry of Finance sought to recover the mistakenly paid sum, but on 14 November 2007 the Altay Regional Court decided that the applicant could keep the money as compensation for the judgment’s lengthy non-enforcement.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1