H.A. v. TURKEY

 
 
SECOND SECTION
DECISION
Application no. 35765/08
H.A.
against Turkey
 
The European Court of Human Rights (Second Section), sitting on 28 May 2019 as a Committee composed of:
Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 4 July 2008,
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, Ms H.A., is a Turkish national, who was born in 1950 and lives in Şırnak. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms F. Danış, a lawyer practising in Diyarbakır.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
4.  In 2001, the applicant’s son, M.S.A., filed a complaint with the public prosecutor, alleging that his sister, M.A., who was fifteen years old at the time, had been raped by E.B, who was twenty years her senior.
5.  Criminal proceedings were initiated against E.B. before the Midyat Assize Court. On 15 March 2002 E.B. was found guilty of rape and he was sentenced to eleven years and eight months’ imprisonment.
6.  On 20 June 2002 the Court of Cassation quashed the judgment of 15 March 2002. It held that the first instance court had not clearly determined whether the applicant’s daughter had given her consent to intercourse that had occurred during a period of seven months, until it was found out that she was pregnant with E.B.’s baby.
7.  On 23 October 2002 the Midyat Assize Court found E.B. guilty of having consensual intercourse with a minor and causing loss of virginity. He was accordingly sentenced to three years and four months’ imprisonment.
8.  On 11 July 2005 the Court of Cassation quashed the judgment of 23 October 2002 considering that the case should be reconsidered in the light of the new Criminal Code that had entered into force in June 2005.
9.  On 10 November 2005 E.B. was once again found guilty of having consensual intercourse with a minor and was sentenced to twenty two months and fifteen days’ imprisonment.
10.  On 20 November 2006 the Court of Cassation quashed the judgment of the first instance court for procedural reasons.
11.  On 15 February 2007 the Midyat Assize Court found it established that E.B. had consensual intercourse with the applicant’s daughter, M.A. during seven months, and as a result M.A. had given birth to a son. E.B. was found guilty of having consensual intercourse with a minor and was sentenced to seven months and fifteen days’ imprisonment.
12.  On 26 November 2007 the Court of Cassation upheld the case.
COMPLAINT
13.  The applicant complained under Articles 6, 8 and 14 of the Convention that the relevant domestic law that had been in force at the time concerning the rape and/or sexual abuse of minors and the court decisions in the present case had not provided an effective protection against such a conduct.
THE LAW
14.  The applicant alleged that the lenient prison sentence that had been imposed on the accused by the domestic courts had not been proportional or protective in view of the seriousness of the crime. In this connection, she relied on Articles 6, 8 and 14 of the Convention.
15.  The Government stated at the outset that the applicant, H.A., was neither a direct nor an indirect victim of the alleged violations and therefore did not have standing in the proceedings before the Court. They stated that there was no indication in the case file that the applicant’s daughter, namely, M.A., who was the only person who could have sustained pain and suffering as a result of the alleged violations of the Convention, had ever intended to lodge an application herself.
16.  In her observations in reply the applicant’s representative did not comment on this preliminary objection.
17.  The Court observes that the present case was introduced by H.A., who is the mother of M.A., who was the direct victim of the alleged violations. At the time of application, namely in 2008, M.A. was twenty three years old, thus she was not a minor any more. However, she did not lodge an application with the Court within six months following the end of the domestic proceedings. In the application form that was received by the Court, it was clearly indicated that the H.A. had introduced the application on her behalf and not on her daughter’s behalf. The letter of authority was also solely signed by H.A. Despite the Registry’s several requests for clarification, the H.A.’s representative persistently informed the Court that the application was introduced in the name of H.A. Nevertheless, on 8 February 2013, after almost five years following the date of introduction and the end of the domestic proceedings, the Court received a letter of authority, signed by M.A., giving authorisation to the lawyer to lodge an application with the Court. No new application form was submitted to the Court, indicating M.A. as an applicant. Nor any information was submitted about her complaints, from her own point of view.
18.  In the present circumstances of the case, the Court considers that M.A. cannot be considered as an applicant in the present case.
19.  The Court is therefore called to decide whether H.A., as a direct or indirect victim had standing to introduce the present application. In this connection, the Court’s approach has been summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 96-100, ECHR 2014).
20.  In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, and İlhan v. Turkey [GC], no. 22277/93, § 52, ECHR 2000‑VII). In the present case, the Court observes that the direct victim of the alleged breaches was the H.A.’s daughter, and as stated above, no valid application was lodged with the Court on her behalf. H.A. cannot therefore be considered as having the requisite standing to lodge the present application.
21.  In view of the foregoing, the Court upholds the preliminary objection of the Government and considers that the application must be declared inadmissible for being incompatible ratione personae within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 June 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
 

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