DISSENTING OPINION OF JUDGE J OÄŒIENÄ–

I voted in this case against the Chamber ’ s position that the applicant ’ s son should be recognised as having locus standi in the proceedings before the European Court of Human Rights, and subsequently, against the finding of a violation of A rticle 11.

According to the jurisprudence of the Court, in cases where the direct victim died before or after the applica tion was submitted to the Court, different criteria apply in order to recognise locus standi , which will then also depend on the nature of the Convention right at issue.

The Chamber in the present case relied on the fact that the Government did not dispute that the applicant could rely on the guarantees contained in Article 11 of the Convention (see paragraph 30 of the judgment) and that the applicant ’ s son had been allowed to join the pending domestic proceedings (see paragraph 21 of the judgment), which have not yet finished.

For me , such an argument is not in itself sufficient to allow the next - of - kin or heir of the deceased applicant to continue the proceedings in the European Court of Human Rights, even though I accept that participation in the domestic proceedings is an important fact or when resolving the locus standi issue before the Court (see, for example, Nölkenbockhoff v. Germany , 25 August 1987, Series A no. 123 ; and Micallef v. Malta [GC], no. 17056/06 , 5 October 2009 , § 49 ).

Furthermore, according to the Court ’ s case-law, in a number of cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant ’ s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see Karner v. Austria , no. 40016/98, 24 July 2003, §§ 22-23, and all the case-law cited therein); on the other hand, it has been the Court ’ s practice to strike applications out of its list where no heir or close relative has expressed the wish to pursue an application (see Malhous v. the Czech Republic ( dec .) [GC], no. 33071/96, ECHR 2000-XII).

In the case before us, the applicant ’ s son clearly expressed his wish to continue the application, lodged by his father, before the European Court of Human Rights. But such background, whether this element is taken alone or even together with the fact of permission to participate in the domestic proceedings, is not in itself sufficient for locus standi to be granted in every case.

Where the applicant has died during the proceedings before the Court (introduced by himself/herself) the next-of-kin or heir may continue with the application if he or she has sufficient interest in that case (as, for instance, the widow and children in Raimondo v. Italy , 22 February 1994, § 2 , Series A no. 281 ‑ A ; and the nephew and potential heir in Malhous v. the Czech Republic ( dec .), no. 33071/96 , ECHR 2000 ‑ XII ).

The Court stated in the case of J Ä— čius v. Lithuania ( no. 34578/97, § 41, ECHR 2000 ‑ IX ) as follows :

“ The Court reiterates that, where an applicant dies during the examination of a case concerning the unlawfulness of his detention, his heirs or next of kin may in principle pursue the application on his behalf (see, among other authorities, Krempovskij v . Lithuania ( dec .), no. 37193/97, 20 April 1999, unreported). The Court considers, like the Commission, that the applicant ’ s widow has a legitimate interest in pursuing the application in his ste ad.” (emphasis added)

Therefore, the Court ’ s practice shows that in cases where the direct victim has died after the application was lodged with the Court, the next-of-kin or heir can pursue the application before the Court when he or she has a legitimate or sufficient interest in continuing the proceedings before it ( see also, for example, Léger v. France (striking out) [GC], no. 19324/02 , § 50 , 30 March 2009 , as regards the applicant ’ s niece).

In cases where the direct victim died before the application was lodged with the Court, the Court applies stronger criteria for establishing locus standi . For example, in the case of Fairfield v. the United Kingdom ( ( dec .), no. 24790/04 , ECHR 2005 ‑ VI ), where a daughter filed a complaint two years after her father ’ s death, claiming a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention) , even though the domestic courts had granted her leave to pursue the appeal after her father ’ s death , the Court did not accept the daughter ’ s victim status .

In the Hungarian case before us, I cannot see any legitimate or sufficient interest of the applicant ’ s son in continuing the application before the Court under Article 11 of the Convention. According to the practice of the Court, the Convention does not allow an actio popularis . U nder Article 34 of the Convention, the applicant as a victim (either direct or indirect) must bring prima facie evidence of being directly affected by the impugned measure (see, mutatis mutandis , Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria , no. 40825/98, § 90, 31 July 2008). In the present case, I cannot see how the deceased applicant ’ s son could be affected by the alleged violation of Article 11 of the Convention, taking into account the nature of this Article, in so far as the deceased applicant had not received any answer from the police as regards his requested permission to hold a demonstration back in 2006 on Kossuth Square in Budapest, in front of the Parliament. In my opinion, in this particular case there is no legitimate or sufficient interest of the applicant ’ s son in defending his late father ’ s rights of association under Article 11 of the Convention.

I agree with the jurisprudence of the Court that in cases brought under Article 2 or 3, which protect the fundamental values of every democratic society, the Court can more easily justify the continuation of proceedings before it after the death of the direct victim, taking into account the “ particular situation governed by the nature of the violation alleged ... ” (see, among other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 , § 200 , 18 September 2009 ; see also Khadzhialiyev and Others v. Russia , no. 3013/04, § 114 , 6 November 2008 , as regards Article 3 claims).

I would also note , however, that the Court ’ s approach in ordinary Article 5 cases as regards locus standi has been much more restrictive (see, for example, Biç and Others v. Turkey ( no. 55955/00, 2 February 2006, § 24 ), where the wife and children of the deceased victim were not granted the requisite standing, as they were not directly affected by the length of the detention on remand or the alleged un fairness of criminal proceedings brought against the deceased ; contrast Jėčius , cited above). The Court reiterated in the Biç and Others case that the rights in Article 5 belonged to the category of non-transferable rights (see Sanles Sanles v. Spain ( dec .), no. 48335/99 , ECHR 2000 ‑ XI ). Similar decisions had been given in the past by the Convention organs ( see, for example, Georgia Makri and Others v. Greece ( dec .), no. 5977/03, 24 March 2005; and Nölkenbockhoff and Bergmann v. the Federal Republic of Germany , no. 10300/89, Commission decision of 12 December 1984, DR 40, p. 9).

By contrast, Article 5 § 5 of the Convention ( the right to compensation for unlawful detention ) is a pecuniary right and a transferrable one (see Houtman and Meeus v. Belgium , no. 22945/07, §§ 27-31, 17 March 2009).

In Article 6 cases, in addition to participation in the domestic proceedings, the Court has also taken account of other alternative criteria in order to recognise the standing of relatives before it : the transferability of the right, the legitimate interest and the direct effect on patrimonial rights (see, for example , the above- mentioned case of Sanles Sanles , where the Court considered that the rights claimed under Articles 2, 3, 5, 8, 9 and 14 belonged to the category of non-transferable rights, declaring this part of the application incompatible ratione personae ).

In the Karner case (cited above, §§ 25-26) the Court analysed whether the Convention right at issue (in its nature) could be regarded as “transferable”. The Court stated as follows:

“ ... as a rule, and in particular in cases which primarily involve pecuniary , and, for this reason, transferable claims , the existence of other persons to whom that claim is transferred is an important criterion, but cannot be the only one. As the Court pointed out ... , human rights cases before the Court generally also have a moral dimension , which must be taken into account when considering whether the examination of an application after the applicant ’ s death should be continued ... ”

This means that in cases where the Court is obliged to resolve the locus standi aspect, it must take into account such factors as: the clearly expressed wish by the next-of-kin or heirs to continue the application before the court, their participation in the domestic proceedings, a legitimate and/or sufficient personal interest in pursuing the individual application in the deceased applicant ’ s stead, the Convention right at issue (its nature) and its transferability; and, lastly, it must answer the question whether there are any common or public interests in terms of human rights protection or some moral dimension requiring it to continue the examination of the case.

The Court has also applied a more flexible approach when recognising locus standi in cases where the complaint was related to the reputation of the deceased person under Article 8, thus also potentially affecting the reputation of the family (see, for example, Armonienė v. Lithuania , no. 36919/02, § 29 , 25 November 2008 ).

I would emphasise that the Court has always declared inadmissible applications from relatives raising complaints under Articles 9, 10 and 11 , in relation to proceedings and facts concerning the deceased victim . In doing so, it has distinguished this type of complaints from those brought under Article 2 concerning the death of a relative (see , for Articles 9 and 10 , Fairfield , cited above; as regards Article 11, see Direkçi and Direkçi v. Turkey (dec.), no. 47826/99, 3 October 2006, where the Court observed that there was no general interest in the case for the proceedings under Articles 6 and 11 to be continued , as those Articles d id not fall within the fundamental provisions of the Convention).

As regards the exception based on the general interest , the Court noted in Karner ( cited above) that, even in the absence of heirs wishing to continue the application, it could continue the examination of a case relying on an important question of public interest .

Therefore, taking into account the Court ’ s case-law on the locus standi issue, I cannot see in this particular case that the applicant ’ s son has any legitimate o r sufficient personal interest in pursuing the application under Article 11 of the Convention. Furthermore, Article 11 rights can not be regarded as “transferable rights” under t he Court ’ s jurisprudence.

Furthermore, no general or moral interest s in protecting human rights can be found in this case. Thus, the continued examination of the present application would not contribute to elucidating, safeguarding or developing the standards of protection of Article 11 rights under the Convention (contrast Karner , cited above).

In my opinion there must be some strong sufficient and/or justified personal interest of the heir in continuing the proceeding before the Court after the applicant ’ s death and that interest must depend on a reasonable relationship between the original actions undertaken by the applicant and his or her heir ’ s wish to continue the proceedings. Such a relationship cannot be established with regard to the nature of Article 11 rights , which are not transferable. Logically, the question arises how the son in this particular case could have know n what the applicant had wanted to express during the planned demonstration in 2006, permission for which he had ne ver received from the police ( in the Court ’ s case-law , Article s 10 and 11 are very much interrelated, see Women On Waves and Others v. Portugal , no. 31276/05, § 28 , 3 February 2009 ) . For me , the requested continuation of the case before the Court was based more on the pecuniary interests of the heir, but not on a legitimate interest in protect ing the deceased applicant ’ s rights of association under Article 11. For this reason I also voted against granting any just satisfaction in the case under Article 41 of the Convention.

In my opinion, the heir (the applicant ’ s son) has no locus standi before the Court in the present case; therefore the case should have been struck out of the list of cases under Article 37 § 1 in fine of the Convention.