CYIL vol. 14 (2023)

ELMIRA LYAPINA CYIL 14 (2023) obligations – as Article 6 (right to a fair trial) 32 , Article 13 (right to an effective remedy), and Article 46 (binding force and execution of judgments) of the Convention. 33 In the cases against Türkiye, 34 the Court considered violations of Article 8 and Article 6 (§ 1) (right to a fair trial within a reasonable time, right to access to the court) of the Convention. The Court dealt again with the authorities’ failure to enforce regulations, in particular in granting a permit to operate a gold mine using the cyanidation process and in the related decision-making process, resulting in infringement of the rights under Articles 6 and 8. In the case Di Sarno v. Italy, 35 the Court reinterpreted Article 8 of the Convention (right to respect of private life), and similarly in the case Kotov and Others v. Russia , 36 it held the failure of the authorities in their positive obligations to protect the applicant’s right to respect of private life during the specified period in which the authorities could have enforced state regulations more strictly without exposing the applicant to long-term environmental nuisances. Violation of Article 6 (§ 1), failure to enforce final judicial decisions, was found in the case Bursa Barosu Başkanlığı and Others v. Turkey , 37 in which the Court stated that the state refrained for several years from taking the necessary measures to comply with several final and enforceable judicial decisions, thus depriving applicants of effective judicial protection. Cases where the Turkish authorities treat the property in a voluntary way, on the other side, illustrate a violation of another article of the Convention: Article 1 of Protocol No. 1. These are the cases Öneryıldız v. Turkey , mentioned earlier, and N.A. and Others v. Turkey , 38 in which the applicants were deprived of their property by a judicial decision without compensation. In these cases, the Court was evaluating the priority of certain fundamental rights and environmental protections. Although stressing the importance of the latter, it alleged the fair balance of rights between the general interest of the community and the requirements of the protection of individual rights, and the importance of provision of compensation by the authorities. Although there are other relevant human rights within environmental sustainability, the approach of the European Court is developing those introduced in the European Convention, together with a stricter approach to the accountability of the state and the importance of compliance with its positive obligations, substantive as well as procedural, whether relating to human activity and environmental risks or natural disasters. Although maintaining its specific approach in the decision-making process in prioritizing common well-being through 32 See Judgment of the ECtHR in Apanasewicz v. Poland , 2011, Application No. 6854/07. 33 See for example judgments of the ECtHR in the cases Öneryıldız v. Turkey , 2004, Application No. 48939/99, Cordella and Others v. Italy , 2004, Application Nos. 54414/13 and 54264/15, or Briganti and Others v. Italy , 2022, Application No. 48820/19. 34 See for example judgments of the ECtHR in the cases Taşkın and Others v. Turkey , 2004, Application No. 46117/99, Öçkan and Others v. Turkey , 2006, Application No. 46771/99, Lemke v. Turkey , 2007, 17381/02. 35 Judgment of the ECtHR in Di Sarno and Others v. Italy , 2012, Application No. 30765/08. 36 Judgment of the ECtHR in Kotov and Others v. Russia , 2022, Application Nos. 6142/18, 51015/18, 51020/18 et al. 37 Judgment of the ECtHR in Bursa Barosu Başkanlığı and Others v. Turkey , 2018, Application No. 25680/05. 38 See for example judgments of the ECtHR in Öneryıldız v. Turkey , 2004, Application No. 48939/99, or in the case N. A. and Others v Turkey , 2005, Application No. 37451/97, or similarly in Turgut and Other v. Turkey , 2008, Application No. 1411/03.

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