The European Court of Human Rights requires applicants to demonstrate personal impact or proximity to an activity for the right to a fair hearing to apply, even if legal standing was recognised by domestic courts under actio popularis and constitutional right to a healthy environment

15-11-2023

Sofía Medina Sánchez 

International Justice and Human Rights Researcher 

Global Human Rights Defence 

On the 15th of November, the European Court of Human Rights (ECtHR) issued its decision on the case Cangi and Others v. Türkiye, finding no violation of Article 6 ECHR (right to a fair trial) regarding the inability to put questions to experts. However, it did find a violation of Article 6 with respect to the non-communication of documents in the casefile. 

The case concerned a court-appointed expert examination in administrative proceedings initiated by the applicants, focusing on the use of cyanide leaching for gold extraction at a mine located in the city of Uşak. The applicants had no chance to pose questions to the experts or provide comments.

The Court in this case departed from its precedent mentioned in Okyay and Others v.Turkey, that the concept of a ‘civil right’ under Article 6 could limit an enforceable right in domestic law. It held that, despite the national law allowing public interest litigation regarding the right to a healthy environment and having granted legal standing to the applicants, the fact that the applicants were environmental defenders was not enough for the Court to consider the proceedings to have been decisive for their civil rights and obligations under the ECHR. 

Additionally, the Strasbourg court determined that Article 6 is relevant for other applicants residing or owning property near the gold mine, given that the outcome of the proceedings has a direct bearing on their constitutional right to live in a healthy environment. 

Regarding the inability to query the experts, the ECtHR emphasizes that although domestic procedural rules may assign instruction authority to courts, not parties, courts must still ensure that parties can effectively engage in the expert examination process as necessitated by the case’s circumstances. However, in this case the court concluded that there was no breach of Article 6 based on the particular facts. 

With respect to the non-disclosure of documents evaluated by the experts to applicants, the ECtHR established two principles: The right to adversarial proceedings includes the parties' entitlement to be aware of and comment on all evidence presented or arguments submitted to influence the court's decision; The opportunity to seek access to a case file alone does not sufficiently safeguard an applicant's right to adversarial proceedings. The Court concluded a violation of Article 6 because, despite relying on expert assessments commissioned by the developer, these assessments were not shared with the applicants.

Sources and further reading: 

Case of Cangı and Others v. Türkiye (Application no. 48173/18), Judgement, Second Section, 14th November 2023 https://hudoc.echr.coe.int/#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-228853%22]}

Press Release issued by the Registrar to the Court, ECHR 309 (2023), 14 November 2023

: https://hudoc.echr.coe.int/fre-press#{%22itemid%22:[%22003-7797599-10814407%22]}