Decision of the Court arising from sitting on 7 December 2021 regarding an application originally lodged in May 2014 by YUSUFELİ İLÇESİNİ GÜZELLEŞTİRME YAŞATMA KÜLTÜR VARLIKLARINI KORUMA DERNEĞİ, a Turkish NGO dedicated to the protection and conservation of cultural and historical artefacts, v Turkey.
The facts, briefly, are that the applicant NGO is a non-profit association based in Yusufeli, Turkey. The application concerns a dispute about the construction of a dam and hydroelectric power plant on the Çoruh River in north-eastern Turkey, a river which flows near the town of Yusufeli. According to the Applicant NGO's submissions, the construction of this dam would cause the town of Yusufeli to become submerged and its resident population to become displaced.
There were a series of legal actions taken in Turkey's domestic Courts which, although initially favourable to the NGO, ultimately went against them with Turkey's Constitutional Court declaring the appeal incompatible ratione personae; referring to section 46 (1) and (2) of Law no. 6216 establishing the Constitutional Court and its rules of procedure, it noted that a non-governmental organisation was only allowed to bring an individual appeal contesting a measure that directly affected its legal personality. The Turkish Constitutional Court, circa 2013, deemed that the arguments advanced by the applicant association were of a kind that only the actual residents of Yusufeli could make; accordingly, it could not be said that the dam project affected those rights or affairs of the applicant association that pertained to its legal personality.
Following this, the applicant association then complained to the ECtHR under Article 8 of the Convention of the potential damage – in particular in the form of the submersion of towns and the displacement of residents – threatened by the construction of the dam and the hydroelectric power plant, in respect of which no Environmental Impact Assessment had ever been conducted. It complained of the consequent harm that this destruction would inflict on the private lives, homes and well-being of its members and that at no point during the decision-making process relating to the planning of the dam was their participation sought. The applicant association relied on Article 8 of the Convention, which provides, in so far as relevant, as follows:
“1. Everyone has the right to respect for his private ... life, his home ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government contested the authority of the representative to represent the applicant association before the ECtHR and considered that this amounted to an abuse of the right of application. They argued that the general power of attorney issued to the representative, dated 20 September 2001 and submitted along with the application at the time of the lodging of the application, furnished the representative with the authority to represent the applicant association only before the Turkish courts and not specifically before the ECtHR. The Government therefore requested the Court to reject the application on the basis of Rules 45 § 3 and 47 of the Rules of the Court, or alternatively to declare the application inadmissible on the grounds of abuse of the right of application, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court considered well-established case law in this area which holds that associations will normally only be granted victim status if they have been directly affected by the measure in question - Association des amis de Saint Raphaël et de Fréjus et autres v. France (dec.), no. 45053/98, 29 February 2000; Dayras and Others and the applicant association “SOS Sexisme” v. France (dec.), no. 65390/01, 6 January 2005; Grande Oriente d’Italia di Palazzo Giustiniani v. Italy (no. 2), no. 26740/02, § 20, 31 May 2007; and British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 50, 15 September 2016).
The Court noted that it is important to reiterate in this respect that the sole fact that a non-governmental organisation considers itself as a guardian of the collective interests of its members does not suffice to make it a victim within the meaning of Article 34 of the Convention (see Kalifagiannis and Prospert v. Greece (dec.), § 50, no. 74435/14, 9 June 2020). That is because the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECtHR 2008).
The Court reiterated that in order to rely on Article 34 of the Convention, a person, non‑governmental organisation or group of individuals must be able to claim to be a victim of a violation of the Convention. According to the Court’s established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts, such as those concerning an interest in acting or capacity to act (see Nencheva and Others v. Bulgaria, no. 48609/06, § 88, 18 June 2013), even though the Court should have regard to whether or not an applicant was a party to the domestic proceedings (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 52, ECtHR 2012; Micallef v. Malta [GC], no. 17056/06, § 48, ECtHR 2009; and Bursa Barosu Başkanlığı and Others v. Turkey, no. 25680/05, §§ 109-17, 19 June 2018).
Furthermore, the individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see Centre for Legal Resources on behalf of Valentin Câmpeanu [GC], no. 47848/08, § 96, with further references, ECtHR 2014). In that regard Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECtHR 2013 (extracts)).
To the extent that the applicant association alleged a violation of its members’ right to respect for their private lives and homes, the Court concluded that it could not accord it standing in its own name. Even though the administrators of the applicant association resided in Yusufeli, the Court was not convinced in the circumstances of the present case that they were exempt from the obligation to lodge an application with the Court in their own name. It was not suggested that individual members of the applicant association suffered from a vulnerability that prevented them from lodging an application with the Court in their own names or from joining the proceedings before the Court.
The Court further observed that the applicant association had not demonstrated that its own interests, as distinct from those of its members, have been so substantially affected by the impugned measure as to give rise to an issue under Article 8 of the Convention. The substantive issues [of this case] fall within the ambit of the sphere of Article 8 on account of environmental issues and the displacement of the local residents of the area in question does not endow the applicant association with more than the intermediary role that it played in the pursuit of its members’ rights. The question of its victim status in the present case could therefore have been entertained only in relation to grievances stemming from any procedural irregularities that it may have encountered as a party to the proceedings, and not on the basis of the individual and personal rights of its members.
The Court ruled that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3. Thus, the application was dismissed.
The individual arguments of both parties, along with the full ECtHR Decision, can be read HERE