Violation Of The Right To Respect For Private Life Due To The Construction Of A Wholesale Market On Neighboring Property
Events
A decision was made to approve an investment to build a wholesale fish and seafood market on a parcel adjacent to the site owned by the applicant. The applicant filed a lawsuit in the administrative court requesting that the aforementioned decision be revoked. In the petition, the applicant stated that the foundation digging and excavation works were ongoing, that the works had reached the garden walls of M. Site, that the excavation works were continuing without any safety measures being taken, and that after the construction was completed, the dwelling would become uninhabitable due to the smell and noise. Upon the administrative court’s decision to dismiss the case, the applicant filed an appeal; however, the regional administrative court decided to reject the appeal.
Allegations
The applicant claimed that the right to respect for private life had been violated due to the construction of a wholesale fish and seafood market on the neighboring property.
The Court’s Assessment
Within the framework of the right to respect for private life guaranteed by Article 20 of the Constitution, public authorities have an obligation to protect and improve the environment and to take the necessary measures in this context. Although how this is to be done and what measures are to be taken in this regard is at the discretion of the public authorities, it is also imperative that the measures in question be implemented promptly, reasonably, and appropriately so as not to lead to a violation of rights.
One of the important measures to be taken in the circumstances of the specific application is to establish, with objective and scientific data, the extent to which the applicant’s legitimate concerns are real and what kind of effects the environmental disturbance may have. One of the functional methods in this regard is to carry out environmental impact assessment studies on the projects covered. Article 4 of the Environmental Impact Assessment Regulation defines environmental impact assessment (EIA) as as the studies to be carried out to determine the possible positive and negative effects of planned projects on the environment, to identify and evaluate the measures to be taken to prevent negative effects or minimize them to a level that does not harm the environment, to determine the selected location and technology alternatives, and to monitor and control the implementation of the projects. Indeed, Article 7 of the Regulation on Wholesale and Retail Sales Locations for Aquatic Products stipulates that one of the documents required for establishment permission is “the decision of the Local Environmental Board that the environmental impacts are insignificant or a positive environmental impact assessment report.” In this regard, it is important that the legislation stipulates as a condition that an EIA report be obtained and that a report be obtained from the Local Environmental Board in this regard, in order to determine the degree of impact of the applicant’s complaints or to establish that the environmental impacts are insignificant.
In this case, the fact that the court of first instance did not evaluate the applicant’s claim regarding the EIA report during the trial process and did not examine whether there was a requirement in this regard, despite the provisions of the legislation, means that the applicant’s claims regarding environmental nuisance were not carefully examined. On the other hand, Law No. 5216 lists the construction and commissioning of all types of wholesale markets among the duties and responsibilities of metropolitan municipalities. However, the relevant Regulation stipulates that fish markets cannot be established in areas close to residences, workplaces, facilities producing harmful substances, and similar places. Furthermore, the expert report prepared within the scope of the declaratory action filed in relation to the specific case indicates that no safety or excavation precautions were taken by the municipality during the excavation work, that part of the wall belonging to the neighboring parcel was demolished, and that the independent units on the neighboring parcel could be damaged in rainy weather.
The courts of first instance did not evaluate the applicant’s substantive claims and did not provide relevant and sufficient grounds that meet constitutional standards through careful adjudication. In this case, no assessment was made by the courts of first instance regarding the balance of interests between the applicant’s interest and the public interest arising from the public service that the municipality is required to perform within the scope of its duties and responsibilities.
In light of these findings, it was concluded that the public authorities failed to fulfill their positive obligations in the context of the applicant’s right to respect for private life.
The Constitutional Court ruled that the right to respect for private life had been violated based on the stated reasons.
