Resistance for information disclosure – Bergama Case No. 1
Three Turkish lawyers, members of the Izmir Bar Association, who are also environmental protection activists within the Aegean region were involved in the monitoring of the activities of the EUROGOLD Mining Company which has been operating a gold mine in Bergama. Following some media rumours that EUROGOLD would sell the mining facility and leave the area without shouldering any cleaning and reforestation burden, the lawyers tried to obtain information from the Ministry of Finance with a right to information request made in February 2005 and asked the Ministry whether EUROGOLD has carried out its legal and tax obligations in accordance with the relevant domestic regulations. The comprehensive right to information request involved 14 questions.
In March 2005, the General Directorate of Revenue of the Ministry of Finance rejected the applicants right to information request on the grounds that tax certificate information can only be provided subject to article 5 of the Tax Procedure Law. The Directorate stated that the requested information fell within the confidentiality scope provided in article 5 of the Tax Procedure Law. Therefore, no information was provided to the applicants.
Subsequently, during March 2005 the applicants appealed to the Right to Information Assessment Council. In June 2005, the Council issued its decision in favour of the applicants and rejected the reasons raised by the Ministry of Finance. The Council decided that 12 out of the 14 questions should have been answered and the requested information should have been provided to the applicants. The Council, in its decision, rejected the confidentiality arguments put forward by the Ministry of Finance by stating that the Ministry is under obligation to provide the information requested under the Right to Information Act 2003. According to the Council, article 5 of the Tax Procedure Law is not compatible with the subsequently enacted Right to Information Act. Article 5(2) of the Right to Information Act states that “the contradictory provisions of other codes [and laws] can not be applied after the date this law came into force.” According to the Council, article 5 of the Tax Procedure Law is one of those inapplicable provisions and cannot be used as an excuse to deny information to the applicants. Based on the principles of openness and transparency, the Council unanimously held that there was no legitimate excuse in not disclosing the information requested and this kind of information should be in the public domain, and is in close interest of the public.
Although it was expected that the Ministry of Finance would comply with the Council decision, the Ministry decided not to comply and the applicants were denied information for the second time in July 2005. In their response letter, the Ministry cited the same excuse based on article 5 of the Tax Procedure law. The applicants contacted the Right to Information Assessment Council for the second time on 27.07.2005 and informed the Council that the Ministry of Finance was ignoring its decision and was not complying with the Right to Information Act.
In August 2005, the Council issued a statement by writing to the applicants and stated that there was no need for the Council to render another decision on the same topic. The Council advised the applicants to submit a complaint petition against the responsible civil servants to the Ministry of Finance and ask the Ministry to take disciplinary action under article 29 of the Right to Information Act. Furthermore, the Council advised that the applicants can file a criminal complaint petition to a competent State Prosecutor’s Office against the responsible civil servants. The Council also reminded that the applicants can take an action before an administrative court in order to review the actions of the Ministry of Finance.
The applicants took an action before the Ankara Administrative Court for a judicial review of the decision of the Ministry of Finance dated 13.07.2005 No. 32509. Furthermore the applicants requested the court to issue a stay of execution decision as to the denial of information decision of the Ministry of Finance on the grounds that the information requested was in the public interest. On 04.05.2006 the 4th Administrative Court of Ankara rejected the applicants’ stay of execution request.
On 07.09.2005 the applicants filed a complaint petition against Mr. Savaş Balkan who is the highest civil servant of the Group Presidency of the Revenue Administration of Ministry of Finance on the grounds that Mr. Balkan committed a crime of duty abuse by not complying with the decision of the Council and by violating the provisions of the Right to Information Act by not disclosing the information requested. The complaint petition was sent to the head of the Ministry of Finance. However, this complaint action led to nowhere as a non-prosecution decision was issued by the Presidency of the Revenue Administration on 06.12.2005. However, the applicants appealed against the decision not to prosecute before the Ankara Regional Administrative Court on 20.12.2005. The applicants pointed out the value of rule of law and democratic culture in a democratic society where citizens have access to information without any unnecessary criteria. On 08.05.2006 the Ankara Regional Administrative Court dismissed the applicants’ appeal application without giving any reasoning for the questions raised by the applicants. Therefore, there were no punishment or investigation in terms of the highest civil servant who was responsible for the non-disclosure of the requested information.
The dismissal decision of the regional Administrative Court is absolute in nature in accordance with the Turkish domestic law. In other words, the applicants exhausted the domestic ways in connection with their complaints, and decided to take their case and complaint to the European Court of Human Rights by arguing an article 6 violation as they were obstructed to access a fair and just court trial.
The applicants alleged in their European Court of Human Rights application that the Turkish Administrative court, without making any merit examination about the applicants’ allegations, endorsed the decision of the institution where the suspect is employed. The applicants allege that the Regional Administrative Court without holding any hearing or requesting any observation from the applicants issued its judgment. The applicants argued that the administration and the judicial system have to issue their decisions by referring to the facts and the questions raised by parties in order to enable them to understand why their application is dismissed. The applicants also alleged that the current Turkish system concerning the investigation and prosecution of civil servant does not have impartial and independent standards. Therefore, the applicants alleged that the current system concerning the investigation and prosecution of the civil servants is absolutely ineffective. Accordingly the applicants state that article 13 of the European Convention was violated by the State Party. The applicants also argued that they were well aware of the tendencies of the government and of its agents in protecting the operations of the mine in Bergama. The application concerning Özkan and Others v. Turkey was lodged with the European Court of Human Rights on 03.10.2006 and an admissibility decision is yet to be made.
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