The summary of the event subjected to the decision and the proceeding
The applicant filed the case for the cancellation of the process on 27.08.2008 against District Governorship of Konak before 4th Administrative Court of İzmir with the claims that; against the written authorization made on 2018 regarding the drumming and collection of money in the month Ramadan that playing drums at 03:30 on every night for one month prevents the right to live in a healthy environment, besides that it has compelling results to worship, that this constitutes the violation of freedom of religion and belief and the principle of equality which requires that the government’s being equidistance to every citizen and within this scope Article 5 and 56 of Constitution are violated.
The Court decided the rejection of the case through its decision dated 02.07.2009 with the justification of that; playing drums in the months of Ramadan is not a fact of worship in terms of the freedom of belief, this is a traditional practice in the society and therefore only drumming does not create a compelling situation for worship and municipalities have the authority to take measures to detect and prevent if the sound is detrimental to the peace of the individuals and it affects the public health gradually; that there is not any fact of contrariety to law before the District Governorship. The Council of State approved the decision on 23.09.2013 by changing it with the justification of that; this is a practice applied traditionally and this application which is tolerated by the majority of the society is carried out in a controlled manner and to prevent possible abuses, that they have the authority to grant such permission to prevent the demand of the neighborhood residents from being carried our unsupervised and by many.
Examination of Supreme Court
The Supreme Court examined the event and the proceeding and evaluated it within the scope of Turkish Law and International Law. The Supreme Court stated in its decision that; the complaint was examined in the Ministry’s opinion within the scope of the right of environment and private and family life of Art. 8 of European Convention on Human Rights (ECHR) and the general principles were included in accordance with the decisions of European Court of Human Rights; the complainant claimed in the reply against the opinion of Ministry that; the complaint was not examined in the terms of freedom of religion and conscience, this authority was not given to any institution in the regulation and that making noise at the night is forbidden.
It is stated in terms of the examination of the subject that; the right to request respect for the private and family life should be evaluated under the Article 20 of Constitution; Article 21 and 22 will be discussed regarding the right to respect for residence and the confidentiality of communication, the environmental matters that have an impact should be evaluated in the scope of material and moral existence of the individual; one of the legal interest guaranteed within the scope of the right to physical and spiritual integrity is also the right to live in a healthy environment. Article 56 of the Constitution has the title of Health Service and Environmental Protection and since the individual application is not possible due to the violation of the second and third generation rights of the Constitution; it is stated that this application needs to be evaluated under the Articles 20 and 21 of the Constitution and the subject of the complaint is mainly sound pollution. Besides that the evaluation is made in accordance with Article 20 of the Constitution by stating that; waking up the individuals only by playing drums is not a compulsory element of worship and therefore can not be described as a force for worship by itself.
When the practices of the European Court of Human Rights are examined, it is stated that although the right to live in a clean environment is not a clearly guaranteed right, these environmental issues must meet certain conditions in order to be considered within the scope of ECHR. The first of these conditions is that the environmental issue must have a direct impact on the private and family life or the right to respect for the residence, and secondly, the environmental discomfort must reach a serious level. In this context, the evaluation of the minimum level is made not according to the realization of the loss, but according to the determination of whether this creates an examinable problem related to the subject area. This evaluation is made with the criteria of the intensity of the environmental impact around the concrete event, duration, physical, and spiritual integrity and the general context of the environment.
The Supreme Court stated in its decision with the consideration that the noise created as a result of playing drums at the night happened right in front of the applicant’s home and at the night, it is clear that it directly affected the private life of the applicant; the intensity of the discomfort, the duration of the effect and the physical and mental impact of the effect on the person should be considered in this context. It is decided that the minimum level that is guaranteed in the Article 20 of the Constitution is not reached in the context of this application and this application was inadmissible since it does not have the basis; that the fact of playing drums during Ramadan months is traditional which is expected to be tolerated for the individuals who aim to live together, it is beyond dispute that this affects the quality of the life due to the fact that it is at night, but it is difficult to say that the effect of the sound and the duration of the exposure is unbearable; that it is predictable because it is in a certain period of time on each year and there is no indication that the applicant is affected more than the average individual.