DIREKCI proti Turecku

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47826/99
by Erol DİREKÇİ and Ergül DİREKÇİ[1]
against Turkey

The European Court of Human Rights (Second Section), sitting on 3 October 2006 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 27 April 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of partial admissibility on 31 March 2005,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erol Direkçi, is a Turkish national who was born in 1950 and lives in Ankara. He was represented before the Court by Mr L. Kanat, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court.

On 15 October 1995 the applicant’s son, Erkut Direkçi, participated in a demonstration organised by a trade union in Ankara. On the same day he was taken into custody.

On 27 October 1995 he was brought before the Ankara State Security Court which ordered his detention on remand.

On an unspecified date the Public Prosecutor at the Ankara State Security Court filed a bill of indictment, charging Erkut Direkçi under Article 168 § 2 of the Criminal Code with membership of an illegal organisation, namely the MLKP (the Marxist-Leninist Communist Party).

On 10 September 1996 Erkut Direkçi’s lawyer submitted a petition to the Ankara State Security Court for the establishment by the Ankara Numune Hospital of a medical report on his client’s state of health.

Between 10 and 16 September 1996 Erkut Direkçi was examined at the Ankara Numune Hospital and diagnosed with liver cancer. The medical reports submitted by the applicant confirm the diagnosis. The applicant also submitted two medical reports recommending one or two months’ rest for his son.

On 17 September 1996 Erkut Direkçi’s lawyer requested the Ankara State Security Court to release his client on account of his serious illness.

On the same day the Ankara State Security Court ordered Erkut Direkçi’s release pending trial.

On 4 February 1997 the Ankara State Security Court convicted Erkut Direkçi of membership of the MLKP under Article 168 § 2 of the Criminal Code and sentenced him to 12 years and 6 months’ imprisonment. The Court also ordered his detention in his absence.

On 5 February 1997 Erkut Direkçi’s lawyer lodged an appeal against the decision regarding his client’s detention.

On the same day the Ankara State Security Court dismissed the appeal, taking into account the serious nature of the offence.

In August 1997 Erkut Direkçi left for Germany in order to obtain medical treatment.

On 24 September 1997 his lawyer requested the Court of Cassation to quash the judgment and the detention order of the Ankara State Security Court.

On 6 November 1997 the Court of Cassation upheld the judgment of the Ankara State Security Court.

Erkut Direkçi died in Germany on 12 December 1997.

COMPLAINTS

The first applicant (hereafter referred to as the applicant) complained under Article 6 § 1 of the Convention that his son had been denied a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court, which tried and convicted him. He contended under Article 6 § 3 (b) of the Convention that the opinion of the Chief Public Prosecutor to the Court of Cassation had never been served on his son or his lawyer, thus depriving his son of the opportunity to put forward his counter-arguments. The applicant further complained under Article 11 of the Convention that the conviction of Erkut Direkçi on account of his participation in a demonstration was a violation of his right to freedom of peaceful assembly.

PROCEDURE

On 31 March 2005 the Court partly struck the case out of its list in respect of the second applicant, Ergül Direkçi, who had died since lodging the application and his heirs had not sought to continue the case.

On the same day, the Court joined to the merits the Government’s objection as to the first applicant’s victim status in respect of the complaints under Articles 6 and 11 of the Convention and declared these complaints admissible. The Court declared the remainder of the application inadmissible.

THE LAW

The applicant complained under Article 6 §§ 1 and 3 (b) of the Convention about the unfairness of the proceedings brought against his son. He further contended under Article 11 of the Convention that his son’s criminal conviction had constituted a violation of his right to freedom of peaceful assembly.

The Government submitted that the applicant could not be considered a victim within the meaning of Article 34 of the Convention. They argued that the applicant’s complaints were only linked to Erkut Direkçi and that the applicant himself had not been directly affected by the impugned proceedings.

The applicant submitted, in reply, that he should be considered as a victim since he had suffered on account of the proceedings brought against his son.

The Court recalls that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge a petition in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention...” While it is true the rules of admissibility prescribed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation alleged (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX, and Fairfield and Others v. the United Kingdom, no. 24790/04, 8 March 2005). Regard should also be had to the object and purpose of the Convention in general which, insofar as it constitutes a treaty for the collective enforcement of human rights and fundamental freedoms, must be interpreted and applied in order to make its safeguards practical and effective.

The Court reiterates that the system of individual petition provided under Article 34 of the Convention excludes applications by way of actio popularis and the concept of “victim” must, in theory, be interpreted autonomously. Therefore, in order for an applicant to be able to claim to be a victim of a violation of the Convention, it must be evident that he or she has been directly affected by the impugned measure (see Sanles and Sanles v. Spain (dec.), no. 48335/99, 26 October 2000).

Turning to the particular circumstances of the case, the Court observes that Erkut Direkçi died on 12 December 1997 and that the present application was lodged with the Court on 27 April 1998 by his father, more than four months after his death. In this connection, the Court recalls that in certain cases where an applicant died during the Strasbourg proceedings, it has taken into account the statements of the applicant’s heirs or close family members who expressed the wish to pursue the case before the Court (see in this respect Karner, cited above, and Dalban v. Romania [GC], no. 28114/95, §39, ECHR 1999‑VI). The Court finds, however, that the present application must be distinguished from those cases which were introduced by the applicants themselves and only continued by the relatives after the applicants’ death.

The Court recalls that individuals, who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right; this is a particular situation governed by the nature of the violation alleged and considerations relating to the effective implementation of one of the most fundamental provisions of the Convention. However, complaints brought under Articles 6 and 11 of the Convention do not fall within this category. Most recently, in the case of Biç and Others v. Turkey (no. 55955/00, § 24, 2 February 2006), the Court held that the relatives of a deceased person could not be considered to be “victims” for complaints concerning the length and fairness of criminal proceedings brought against the deceased. Similar decisions were also given in the past by the Convention organs (e.g. Georgia Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005; Sanles, cited above; Kofler v. Italy, no. 8261/78, Commission decision of 9 October 1982, Decisions and Reports (DR) 30, p. 5; Nölkenbockhoff and Bergmann v. the Federal Republic of Germany, no. 10300/89, Commission decision of 12 December 1984, DR 40, p. 9).

In the instant case, criminal proceedings were initiated against the applicant’s son before the Ankara State Security Court and these proceedings concerned him alone. The Court cannot therefore conclude that the applicant was personally affected by the alleged unfairness of the proceedings brought against his son or by the allegedly unjustified interference with his son’s freedom of peaceful assembly. The Court further considers that there exists no general interest in the present case which necessitates proceeding with the consideration of these complaints. As a result, the Court finds that the applicant in the instant case does not have the requisite standing under Article 34 of the Convention.

In these circumstances and having regard to Article 35 § 4 of the Convention, according to which the Court may reject any application which it considers inadmissible under Article 35 at any stage of the proceedings, the Court concludes that the case must be rejected as being incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 and 4 of the Convention (see Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003).

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa
Registrar President

[1] The part of the application lodged by Ergül Direkçi was struck out on 31 March 2005 (see Procedure part below)