YUSUFELİ İLÇESİNİ GÜZELLEŞTİRME YAŞATMA KÜLTÜR VARLIKLARINI KORUMA DERNEĞİ v. TURKEY

 

 

SECOND SECTION

DECISION

Application no. 37857/14
YUSUFELİ İLÇESİNİ GÜZELLEŞTİRME YAŞATMA KÜLTÜR VARLIKLARINI KORUMA DERNEĞİ
against Turkey

 

The European Court of Human Rights (Second Section), sitting on 7 December 2021 as a Chamber composed of:

 Carlo Ranzoni, President,
 Aleš Pejchal,
 Egidijus Kūris,
 Branko Lubarda,
 Pauliine Koskelo,
 Marko Bošnjak,
 Saadet Yüksel, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 7 May 2014,

Having regard to the decision to give notice to the Turkish Government of the complaint under Article 8 of the Convention and to declare the remainder of the application inadmissible,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği (“the applicant association”), is a non-profit association with its registered office in Yusufeli, a town in the province of Artvin. The applicant association was represented before the Court by its president, Mr R. Akyürek, who is also a lawyer practising in Artvin.

2.  The Government were represented by their co-Agents, Ms Aysun Akceviz and Mr Ahmet Metin Gökler, Acting and Deputy Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey, respectively.

The circumstances of the case

3.  The application concerns a dispute about the construction of the Yusufeli Dam and the hydroelectric power plant in the Çoruh River in north-eastern Turkey.

4.  The facts of the case, as submitted by the parties and as can be seen from the documents submitted by them, may be summarised as follows.

The applicant association

5.  The applicant association’s aims, as stated in its articles of association, are “to protect the cultural and tourist assets and appearance of the town of Yusufeli; ... to study and fight against the construction of the Yusufeli Dam; ... to assist the local population in the event of their displacement should the dam be constructed; ... to enter into talks with Government authorities with a view to resolving issues and finding solutions in the event of the inundation of the town; ... to provide financial assistance and support to residents [living] in poverty (including students, widows and war victims and disabled persons); ... to form sports teams and social groups with a view to fostering Turkish customs among young residents ...; to appoint commissions or consult scientists with a view to identifying and reporting on various problems ...; to engage in activities (including for-profit activities) aimed at promoting tourism in Yusufeli; and to support and liaise with other non-governmental associations”. The applicant association has no branches and its board of directors is made up of local residents. According to its general assembly meeting records for 2012 and 2015, it had 129 and 133 registered members, respectively, in those years. No individual details regarding the applicant association’s members were submitted to the Court.

Planning of the Yusufeli Dam

6.  The State Water Works Department, in conjunction with the State Electricity Department, conducted a study in 1969 in order to determine the energy resources in the Çoruh river basin.

7.  A master plan setting out a target of 1.468 billion kWh per year in energy production – with a view to constructing fifteen dams and thirty-four hydroelectric power plants – was prepared in 1982. A report on the feasibility of the Yusufeli Dam was completed in 1986, which compared a construction model comprising two envisaged dams with another that consisted of three dams. According to the feasibility report, the town of Yusufeli would be submerged by the two-dam structure, whereas under the three-dam scenario it would not. Even so, having regard to the costs of the project and the two models’ comparative storage capacity and envisaged respective total energy production, the two-dam model was approved in 1990.

8.  On 23 July 1997 the Council of Ministers, by means of a resolution, decided to exempt a consortium of international companies and one domestic company from the provisions of the State Procurement Act (Law no. 2886) for the purposes of the construction of the Yusufeli Dam and hydroelectric power plant, provided that the consortium secured international loans for the financing of the project.

Administrative proceedings brought by the applicant association

9.  On 3 October 2001 the applicant association called on the Ministry of Energy and Natural Resources (“the Ministry”) to abandon and cancel the project for the construction of the Yusufeli Dam. It submitted that the two-dam project would submerge Yusufeli town centre and seventeen neighbouring villages and that 30,000 residents would be displaced. It argued that serious and irreversible damage would be caused to agriculture, tourism, culture and the livelihood of local residents. It voiced its regret that no environmental impact assessment (“EIA”) had been undertaken with respect to the project. In the event that the project nevertheless went ahead, it invited the Ministry to reconsider the alternative three-dam project, which would be more sustainable and would not lead to the submersion of the town centre and the displacement of its residents.

10.  On 20 December 2001 the Ministry replied to the applicant association that the current two-dam project had been selected as the most viable alternative after detailed studies had been carried out comparing several options. The Ministry noted that any amendments to the project plans or its cancellation would affect the production of electricity in other dams along the Çoruh River and could render their operation economically non-viable. The Ministry furthermore submitted that even though the Yusufeli Dam and the hydroelectric power plants had been exempt from the EIA procedure on account of provisional section 1 of the Regulation on Environment Impact Assessment, a private EIA report had nevertheless been prepared in order to meet the demands of financial credit institutions. The Ministry lastly noted that a resettlement plan had been prepared for those residents who would be displaced because of the construction of the Yusufeli Dam and that its details were still in the development stage.

11.  The applicant association brought an action in the Supreme Administrative Court, alleging that the Ministry’s reply amounted to an implicit rejection of its request for the cancellation of the Yusufeli Dam project, and asking for that reply to be set aside. It also asked the Supreme Administrative Court to set aside the Council of Minister’s resolution of 23 July 1997 and to further declare that the impugned project was subject to EIA regulations.

12.  On 1 July 2005 the Supreme Administrative Court, sitting as a first-instance court, set aside the Ministry’s implicit rejection of 20 December 2001 and cancelled the Yusufeli Dam project and quashed the Council of Minister’s resolution of 23 July 1997. In its decision, the Supreme Administrative Court noted that the margin of appreciation enjoyed by the administrative authorities in the determination of the technical and economic aspects of hydroelectric energy production was limited by the requirement to protect the public’s right to a healthy environment and by the need to protect the overall public interest. Citing Article 56 of the Constitution and sections 1 and 10 of the Environment Act – together with the “List of Industrial Activities” annexed to the Regulation on Environment Impact Assessment, according to which proposed river-powered plants were required to undergo an EIA – the Supreme Administrative Court established that the impugned project had to undergo such an assessment. As to the question of whether the Yusufeli Dam project could be exempted from the EIA process on account of provisional section 1 of the Regulation, the Supreme Administrative Court replied in the negative. It noted that the right to such an exemption only applied to projects (i) whose action plans had been approved, or (ii) in respect of which a decision to expropriate had been taken, or (iii) in respect of which the required permits, licences or other forms of approval had been granted, or (iv) whose location had, before 7 February 1993, been determined, in accordance with the relevant legal framework. Noting that the Ministry had been unable to furnish the court with any document indicating that any one of those steps had been taken before that date, and emphasising the fact that as at that date the impugned project had not even been included in the State’s general investment action plan, the court held that provisional section 1 was not applicable to the dispute and that the project had to go through the EIA procedure.

13.  The Supreme Administrative Court furthermore noted that despite the fact that the Ministry had mentioned that an EIA report had been prepared in the course of the project, no such report had been submitted for its consideration during the proceedings. The court also noted that the Ministry had not given any consideration to concerns voiced by the Ministry of Forestry regarding the inundation of a wildlife preservation area in the Çoruh river basin in the event of the construction of the dam and to the Yusufeli Office of the Ministry of Agriculture’s concerns that 85% of the local agricultural produce (unique to the region) would be irretrievably lost. The Supreme Administrative Court noted in passing that such shortcomings in the decision-making process had prompted the credit institutions to demand an EIA report from the Ministry.

14.  The Supreme Administrative Court also took into account the Ministry’s response that apart from the above-mentioned initial feasibility report undertaken in 1986 a thorough comparison between a two-dam structure and a three-dam structure had not been made. It found that the two-dam structure had been favoured solely on account of its larger storage capacity, lower construction costs and greater output of electricity; however, it noted that the initial feasibility had not taken into account (i) the fact that the two-dam structure would affect approximately 16,000 residents on account of the submersion of the town centre, the seventeen neighbouring villages, 85% of the area’s fertile agricultural land, and 459 hectares of a local wildlife preservation zone, (ii) the loss of roads and 26 km of river rafting, and (iii) the expropriation and resettlement costs and the cost of building new roads.

15.  For the above reasons, the Supreme Administrative Court concluded that although it was apparent that the project would have a positive impact on the country’s electricity needs, it was nevertheless necessary to update the project with an EIA report and to revisit the conclusions reached in 1986. It furthermore declared unlawful the Council of Ministers’ resolution of 23 July 1997 exempting the construction of the Yusufeli Dam and hydroelectric power plants from the State Procurement Act.

16.  Following an appeal lodged by the Ministry, the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions (Danıştay İdari Dava Daireleri Genel Kurulu – “General Assembly”) quashed the Supreme Administrative Court’s decision of 1 July 2005 by nineteen votes to ten on 23 February 2006. The General Assembly first considered that the Council of Ministers’ resolution of 23 July 1997 had been lawful, given the fact that the project (which was of an exceptional nature) was to be realised by a consortium of international companies on the basis of bilateral accords concluded by several countries. It also held that the exemption provided for in provisional section 1 of the Regulation applied to the project in question, given the fact that the two-dam model had been adopted in 1990. In the General Assembly’s view, the adoption of the two-dam model necessarily implied that the location of the project had been determined before 7 February 1993 – one of the grounds justifying the exemptions set out in provisional section 1. With respect to the question of whether it was necessary to revisit the conclusions reached after the above-mentioned comparison between a two-dam structure and a three-dam structure, the General Assembly deemed that the Supreme Administrative Court’s assessment had gone beyond a review of the lawfulness of the project and had encroached on the executive’s margin of appreciation.

The General Assembly accordingly remitted the case to the Supreme Administrative Court for a fresh examination.

17.  On 20 November 2007 the Supreme Administrative Court dismissed the case by incorporating the General Assembly’s reasoning into the wording of its decision.

18.  On 15 October 2012, following an appeal by the applicant association, the General Assembly upheld the Supreme Administrative Court’s decision of 20 November 2007.

19.  On 4 February 2013 the applicant association lodged an individual appeal with the Constitutional Court alleging (on account of the unlawful decision of the General Assembly) an infringement of its and its members’ right to fair trial, right to a healthy environment, right to respect for family life and right to protection of their property.

20.  On 12 September 2013 the Constitutional Court declared 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 Constitutional Court 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.

Relevant law

Domestic law

(a)   Environmental protection

21.  The relevant domestic law, as in force at the time in question, can be found in Taşkın and Others v. Turkey (no. 46117/99, § 94, ECHR 2004‑X) and Okyay and Others v. Turkey (no. 36220/97, §§ 46-50, ECHR 2005‑VII).

22.  The relevant provisions of the Regulation on Environmental Impact Assessments, published in the Official Gazette no. 2308 of 23 June 1997, as in force at the time and in so far as relevant, read as follows:

Section 1

“The objective of this regulation is to set out the administrative and technical rules to be followed in the environmental impact assessment process with a view to identifying and assessing all [potential] consequences on the environment and to preventing the negative effects of the activities of real or legal persons that are within the scope of the Regulation.”

 

Provisional Section 1

“The provisions of this regulation shall not apply in the event that, before 7 February 1993: ... projects were approved in respect of the activities in question; or the relevant permits, licences, approvals were given; or decisions to expropriate were taken; or the location was determined within the scope of the relevant framework; or [the planned activity] was placed within the scope of an investment programme; or site development plans were approved ... .”

(b)   State Procurement Act

23.  Article 89 of the State Procurement Act (Law no. 2886), as worded at the relevant time, provides as follows:

“In cases ... where it is not possible to apply the provisions of this Law, the Council of Ministers may decide on a proposal from the relevant Ministry to remove from the scope of this Law the procurement of goods or services.”

(c)   Right of Individual Application

24.  Section 46 of Law no. 6216 establishing the Constitutional Court and its rules of procedure provides as follows:

“1.  Individual appeals may only be lodged by those whose actual and personal rights are directly affected by an act, action or omission.

2.  Private-law legal persons may only lodge an individual appeal that alleges a violation of those of their rights that relate to their legal personality.”

COMPLAINT

25.  The applicant association complained 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 EIA 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.

THE LAW

The government’s prelımınary objectıons as Regards THE STANDING OF THE APPLICANT ASSOCIATION’S representative and the alleged abuse of the rıght of application

26.  The Government contested the authority of the representative to represent the applicant association before the Court 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 Court. 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.

27.  The representative of the applicant association responded that he was representing the applicant association in his capacity as its president, and had full powers to act and to lodge an application with the Court. In that regard he submitted to the Court (i) the minutes of the applicant association’s general assembly meeting of 23 July 2012, during which it was announced that he had been elected president, and (ii) the minutes of one of the applicant association’s general assembly meetings held during the period between 2012 and 2015, which, according to the representative, attested to his authority to act on behalf of the applicant association during that period.

28.  The Court notes that, in accordance with the practice direction on the institution of proceedings, appended to Rules 45 and 47 of the Rules of Court, and issued on 1 November 2003 by the President of the Court, in accordance with Rule 32 of the Rules of Court, as in force on the date that the present application was lodged, the applicant or the applicant’s representative must sign the application form. If represented, the applicant must sign the letter of authority, which forms part of the application form.

29.  The Court furthermore reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts and false declarations (see, for example, Miroļubovs and Others v. Latvia, no. 798/05, § 63, 15 September 2009; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012; and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 19 June 2006; Kowal v. Poland (dec.), no. 2912/11, 18 September 2012; and Gross, cited above, § 28). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Al-Nashif v. Bulgaria, no. 50963/99, § 89, 20 June 2002; Melnik v. Ukraine, no. 72286/01, §§ 58 - 60, 28 March 2006; and Nold v. Germany, no. 27250/02, § 87, 29 June 2006).

30.   The Court observes at the outset that at the time that the present application was lodged, the representative, who was a practising lawyer, identified himself in the relevant part of the application form as “lawyer”, even though he was the president of the applicant association and did not identify himself as such in the designated part of the application form. The power of attorney (dated 2001) submitted with the form was misleading in not reflecting the reality of the situation, and the Government’s objections in that regard are not unjustified. That being so, the Court notes that in reply to the Government’s observations, the applicant submitted to the Court the relevant documents attesting to his capacity as president of the applicant association to represent the applicant association before the Court. While the Court regrets the error on the part of the president of the applicant association, it cannot reject the application at this stage since it has sufficient elements to establish that the representative did indeed have the authority to bring an application on behalf of the applicant association at the time of his lodging the application. The Court furthermore considers that there is no evidence that he intended to “mislead the Court” when he lodged the application on the applicant association’s behalf. It furthermore notes that the President of the Section gave leave for the representative to represent the applicant before the Court, in accordance with Rule 36 § 2 in fine of the Rules of Court.

For these reasons, the Court dismisses the preliminary objections lodged by the Government.

Artıcle 8 of the conventıon

31.  The applicant association complained that as a result of the construction of the dam and hydroelectric power plant, its members’ private lives, homes, commercial activities and collective memories were under a serious and imminent threat 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 parties’ arguments

32.  The Government submitted firstly that the applicant association lacked victim status and that the complaint was therefore incompatible ratione personae with Article 8 of the Convention. They submitted in that regard that the supervisory mechanism under the Convention excluded actiones populares and claims containing allegations aimed at the amendment of national laws and the protection of the general interests of society. The Government argued that the applicant association itself was not directly or indirectly affected by the project in question. In that regard they argued that the applicant association could not claim to be (on behalf of its members) a victim in respect of their private lives, homes and well-being.

33.  The Government submitted secondly that the complaint was in any event incompatible ratione materiae with Article 8 of the Convention. In their view, the submerging of the Yusufeli district under the reservoir would not have an effect attaining the minimum requisite level of severity on the applicant association.

34.  Lastly the Government argued that the application should in any event be rejected for non-exhaustion of domestic remedies in so far as the members of the applicant association had failed to lodge a claim for compensation with the administrative courts. In that regard, they maintained that under section 12 of the Administrative Procedure Act (Law no. 2577), its members had had the opportunity to seek compensation following the delivery of the final decision in the impugned administrative proceedings. Section 12 provided in that regard that it was open to those concerned to initiate proceedings for the annulment of an administrative act and to lodge another claim for compensation following the delivery of the decision concerning the annulment proceedings.

35.  The applicant association, citing its articles of association and the cases of Gorraiz Lizarraga and Others v. Spain (no. 62543/00, ECHR 2004‑III) and L’Erablière A.S.B.L. v. Belgium (no. 49230/07, ECHR 2009 (extracts)), replied that it had been established mainly for the purpose of preventing the construction of the dam and defending its members’ interests against adverse consequences in the event of its eventual construction. It argued that its members had decided to form an association in order to collectively defend their rights before the domestic courts and that its locus standi had gone unchallenged before the administrative courts. The applicant association therefore maintained that it should be considered as a “victim”, within the meaning of the Convention. In reply to the Government’s plea of non-exhaustion of domestic remedies in so far as the members of the applicant association had not lodged a claim for compensation, the applicant association firstly reiterated its arguments that it had been established in order to collectively defend the interests of its members, and that its members therefore did not have to exhaust the available remedies individually. It secondly argued that, given its motivation for initiating proceedings – that is to say to prevent the construction of the dam and the displacement of the local residents – compensation did not in any case constitute an effective remedy.

The Court’s assessment

(a)   General principles with respect to victim status

36.  The Court reiterates firstly 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, ECHR 2012; Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009; and Bursa Barosu Başkanlığı and Others v. Turkey, no. 25680/05, §§ 109-17, 19 June 2018).

37.  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, ECHR 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, ECHR 2013 (extracts)).

 

(b)   Victim status of NGOs

38.  According to the Court’s established case-law, associations will normally only be granted victim status if they have been directly affected by the measure in question (see 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). 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 (see Aksu, cited above, § 50, and Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008).

39.  The Court reiterates that, like the other provisions of the Convention, the term “victim” in Article 34 must also be interpreted in an evolutive manner in the light of conditions in contemporary society. Indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means – sometimes the only means – available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognised by the legislation of most European countries (see Gorraiz Lizarraga and Others, cited above, § 38, and Beizaras and Levickas v. Lithuania, no. 41288/15, § 81, 14 January 2020).

40.  In this regard the Court reiterates that it has granted victim status to associations in cases relating to Article 6 § 1 of the Convention in respect of proceedings where the substance of the applicant association’s claim before the domestic courts concerned its members’ interests in respect of their private lives, families and homes and their right to participate in the decision-making process (see, in particular, Gorraiz Lizarraga and Others, cited above, §§ 9-10, 32 and 36-39; L’Erablière A.S.B.L., cited above, §§ 28-29; and Sailing Club of Chalkidiki “I Kelyfos” v. Greece, nos. 6978/18 and 8547/18, § 52, 21 November 2019). Having regard to the fact that the applicant associations in question had been set up with the specific purpose of defending their members’ interests before the courts, that their members were directly affected by the impugned measures in question and that they had been granted legal standing in the domestic proceedings, the Court did not regard their respective applications as constituting, respectively, an actio popularis and examined the cases from the standpoint of Article 6 § 1 of the Convention.

41. According to the above-cited case-law, there are two principal reasons why an association may not be considered to be a direct victim of an alleged violation of the Convention. The first reason is the prohibition on the bringing of an actio popularis under the Convention system; this means that an applicant cannot lodge a claim in the public or general interest if the impugned measure or act does not affect him or her directly. It follows that in order for an applicant to be able to argue that he is a victim, he must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient in this respect (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 101). The second reason concerns the nature of the Convention right at stake and the manner in which it has been invoked by the applicant association in question. Certain Convention rights, such as those under Article 2, 3 and 5, by their nature, are not susceptible of being exercised by an association, but only by its members (see Scientology Kirche Deutschland v. Germany, no. 34614/97, Commission decision of 7 April 1997, in respect of a complaint raised under many different substantive provisions of the Convention; Asselbourg and Others v. Luxembourg (dec.), no. 29121/95, ECHR 1999‑VI in respect of a complaint raised under Article 8 of the Convention (respect for home) concerning nuisance caused by an industrial plant close to the applicant association’s seat; and Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 25, 9 December 2010 in respect of a complaint raised under Article 12 of the Convention and Article 2 of Protocol No. 1 by the applicant churches). In Asselbourg and Others (cited above), when declining to grant victim status to the applicant association, the Court noted that the applicant association could only act as a representative of its members or employees, in the same way as, for example, a lawyer represented his client, but could not itself claim to be the victim of a violation of Article 8.

(c)   Application of these principles to the present case

42.  In the light of these principles, and to the extent that the applicant association alleges a violation of its members’ right to respect for their private lives and homes, the Court concludes that it cannot accord it standing in its own name. Even though the administrators of the applicant association reside in Yusufeli, the Court is 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.

43.  The Court would furthermore observe that the applicant association has 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 Court considers, given the circumstances of the present case, that the applicant association’s standing to lodge an application under Article 8 of the Convention is indistinguishable from that of Article 6 of the Convention. The Court notes that in granting standing to associations under Article 6 of the Convention where the dispute at the domestic level is related to their members’ rights or interests (such as the right to a healthy environment or respect for home) or a more general interest in the protection of the environment, it has regard to the fact that an association could sufficiently have a “right” to which it could claim to be entitled as a legal entity (see L’Erablière A.S.B.L., cited above, § 26, and Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox and Mox v. France (dec.), no. 75218/01, 28 March 2006). That right was not defined on the basis of the spheres of interests covered by Article 8 (or another substantive provision for that matter) of the Convention, but rather as the public’s right to be informed and to participate in the decision-making process (see L’Erablière A.S.B.L., cited above, § 26) – the right of access to justice to the extent that such a right is recognised in the domestic legal order – which the applicant association in question enjoys as a civil right separately as a legal entity. Thus, the fact that an association enjoys a civil right, within the meaning of the Convention, does not automatically render a substantive provision of the Convention applicable by virtue of the rights enjoyed individually by that association’s members. Similar considerations apply to the case brought by the applicant association. The fact that the substantive issues 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.

44.  It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3.

45. This conclusion allows the Court to dispense with the need to examine the Government’s remaining arguments of inadmissibility.

 For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

 

 Hasan Bakırcı Carlo Ranzoni
 Deputy Registrar President

 

 

 

 

 

 

 

 

 

 

 

 

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