CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND 5 страница

154. In reconciling both these positions and thereby establishing the extent to which a State's action can be justified by its compliancewith obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards (see M. & Co., p. 145, and Waite and Kennedy, § 67, both cited above). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see mutatis mutandis, Matthews, cited above,§§ 29 and 32-34, and Prince Hans‑Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII).

155. In the Court's view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides (see M. & Co., cited above, p. 145, an approach with which the parties and the European Commission agreed). By “equivalent” the Court means “comparable”; any requirement that the organisation's protection be “identical” could run countertothe interest of international cooperation pursued (see paragraph 150 above). However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.

156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention's role as a “constitutional instrument of European public order” in the field of human rights (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).

157. It remains the case that a State would be fully responsible under the Convention for all acts falling outside its strict international legal obligations. The numerous Convention cases cited by the applicant company in paragraph 117 above confirm this. Each case (in particular, Cantoni, p. 1626, § 26) concerned a review by this Court of the exercise of State discretion for which Community law provided. Pellegrini is distinguishable: the State responsibility issue raised by the enforcement of a judgment not of a Contracting Party to the Convention (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, pp. 34-35, § 110) is not comparable to compliance with a legal obligation emanating from an international organisation to which Contracting Parties have transferred part of their sovereignty.Matthews can also be distinguished: the acts for which the United Kingdom was found responsible were “international instruments which were freely entered into” by it (see paragraph 33 of that judgment). Kondova (see paragraph 76 above), also relied on by the applicant company, is consistent with a State's Convention responsibility for acts not required by international legal obligations.

158. Since the impugned measure constituted solely compliance by Ireland with its legal obligations flowing from membership of the European Community (see paragraph 148 above), the Court will now examine whether a presumption arises that Ireland complied with the requirements of the Convention in fulfilling such obligations and whether any such presumption has been rebutted in the circumstances of the present case.

(b) Whether there was a presumption of Convention compliance at the relevant time

159. The Court has described above (see paragraphs 73-81) the fundamental rights guarantees of the European Community which apply to member States, Community institutions and natural and legal persons (“individuals”).

While the founding treaties of the European Communities did not initially contain express provisions for the protection of fundamental rights, the ECJ subsequently recognised that such rights were enshrined in the general principles of Community law protected by it, and that the Convention had a “special significance” as a source of such rights. Respect for fundamental rights has become “a condition of the legality of Community acts” (see paragraphs 73-75 above, together with the opinion of the Advocate General in the present case, paragraphs 45-50 above) and in carrying out this assessment the ECJ refers extensively to Convention provisions and to this Court's jurisprudence. At the relevant time, these jurisprudential developments had been reflected in certain treaty amendments (notably those aspects of the Single European Act of 1986 and of the Treaty on European Union referred to in paragraphs 77-78 above).

This evolution has continued. The Treaty of Amsterdam of 1997 is referred to in paragraph 79 above. Although not fully binding, the provisions of the Charter of Fundamental Rights of the European Union were substantially inspired by those of the Convention, and the Charter recognises the Convention as establishing the minimum human rights standards. Article I-9 of the later Treaty establishing a Constitution for Europe (not in force) provides for the Charter to become primary law of the European Union and for the Union to accede to the Convention (see paragraphs 80-81 above).

160. However, the effectiveness of such substantive guarantees of fundamental rights depends on the mechanisms of control in place to ensure their observance.

161. The Court has referred (see paragraphs 86-90 above) to the jurisdiction of the ECJ in, inter alia, annulment actions (Article 173, now Article 230, of the EC Treaty), in actions against Community institutions for failure to perform Treaty obligations (Article 175, now Article 232), to hear related pleas of illegality under Article 184 (now Article 241) and in cases against member States for failure to fulfil Treaty obligations (Articles 169, 170 and 171, now Articles 226, 227 and 228).

162. It is true that access of individuals to the ECJ under these provisions is limited: they have no locus standi under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is restricted as is, consequently, their right under Article 184; and they have no right to bring anaction against another individual.

163. It nevertheless remains the case that actions initiated before the ECJ by the Community institutions or a member State constitute important control of compliance with Community norms to the indirect benefit of individuals. Individuals can also bring an action for damages before the ECJ in respect of the non-contractual liability of the institutions (see paragraph 88 above).

164. Moreover, it is essentially through the national courts that the Community system provides a remedy to individuals against a member State or another individual for a breach of Community law (see paragraphs 85 and 91 above). Certain EC Treaty provisions envisaged a complementary role for the national courts in the Community control mechanisms from the outset, notably Article 189 (the notion of direct applicability, now Article 249) and Article 177 (the preliminary reference procedure, now Article 234). It was the development by the ECJ of important notions such as the supremacy of Community law, direct effect, indirect effect and State liability (see paragraphs 92-95 above) which greatly enlarged the role of the domestic courts in the enforcement of Community law and its fundamental rights guarantees.

The ECJ maintains its control on the application by national courts of Community law, including its fundamental rights guarantees, through the procedure for which Article 177 of the EC Treaty provides in the manner described in paragraphs 96 to 99 above. While the ECJ's role is limited to replying to the interpretative or validity question referred by the domestic court, the reply will often be determinative of the domestic proceedings (as, indeed, it was in the present case – see paragraph 147 above) and detailed guidelines on the timing and content of a preliminary reference have been laid down by the EC Treaty provision and developed by the ECJ in its case-law. The parties to the domestic proceedings have the right to put their case to the ECJ during the Article 177process. It is further noted that national courts operate in legal systems into which the Convention has been incorporated, albeit to differing degrees.

165. In such circumstances, the Court finds that the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, “equivalent” (within the meaning of paragraph 155 above) to that of the Convention system. Consequently, the presumption arises that Ireland did not depart from the requirements of the Convention when it implemented legal obligations flowing from its membership of the European Community (see paragraph 156 above).

166. The Court has had regard to the nature of the interference, to the general interest pursued by the impoundment and by the sanctions regime and to the ruling of the ECJ (in the light of the opinion of the Advocate General), a ruling with which the Supreme Court was obliged to and did comply. It considers it clear that there was no dysfunction of the mechanisms of control of the observance of Convention rights.

In the Court's view, therefore, it cannot be said that the protection of the applicant company's Convention rights was manifestly deficient, with the consequence that the relevant presumption of Convention compliance by the respondent State has not been rebutted.

4. Conclusion under Article 1 of Protocol No. 1

167. It follows that the impoundment of the aircraft did not give rise to a violation of Article 1 of Protocol No. 1.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the preliminary objections;

2. Holds that there has been no violation of Article 1 of Protocol No. 1.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 30 June 2005.

Christos Rozakis
President
Paul Mahoney
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint concurring opinion of Mr Rozakis, Mrs Tulkens, Mr Traja, Mrs Botoucharova, Mr Zagrebelsky and Mr Garlicki;

(b) concurring opinion of Mr Ress.

C.L.R.
P.J.M.

JOINT CONCURRING OPINION OF JUDGES ROZAKIS, TULKENS, TRAJA, BOTOUCHAROVA, ZAGREBELSKY AND GARLICKI

(Translation)

While we are in agreement with the operative provisions of the judgment, namely that there has been no violation of Article 1 of Protocol No. 1 in the instant case, we do not agree with all the steps in the reasoning followed by the majority, nor all aspects of its analysis. Accordingly, we wish to clarify certain points we consider important.

1. In examining Article 1 of the Convention, the judgment rightly points out, on the basis of the Court's case-law, that it follows from the wording of that provision that the States Parties must answer for any infringement of the rights and freedoms protected by the Convention committed against persons placed under their “jurisdiction” (see paragraph 136). It concludes that the applicant company's complaint is compatible not only ratione loci (which was not contested) and ratione personae (which was not in issue) but also ratione materiae with the provisions of the Convention (see paragraph 137). Thus, the Court clearly acknowledges its jurisdiction to review the compatibility with the Convention of a domestic measure adopted on the basis of a Community regulation and, in so doing, departs from the decision of the European Commission of Human Rights of 9 February 1990 in M. & Co. v. the Federal Republic of Germany (no. 13258/87, Decisions and Reports64, p. 138).

It has now been accepted and confirmed that the principle that Article 1 of the Convention makes “no distinction as to the type of rule or measure concerned” and does “not exclude any part of the member States' 'jurisdiction' from scrutiny under the Convention” (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29) also applies to Community law. It follows that the member States are responsible, under Article 1 of the Convention, for all acts and omissions of their organs, whether these arise from domestic law or from the need to fulfil international legal obligations.

2. In examining the alleged violation of Article 1 of Protocol No. 1, and having determined the applicable rule and the legal basis for the impugned interference, the Court's task was to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved and, consequently, to determine if a fair balance had been struck between the demands of the general interest

and the interest of the applicant company. By its nature, such a review of proportionality can only be carried out in concreto.

In the instant case, the judgment adopts a general approach based on the concept of presumption: “If such [comparable] equivalent protection [of fundamental rights] is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient” (see paragraph 156).

3. Even supposing that such “equivalent protection” exists – a finding which, moreover, as the judgment correctly observes, could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection (see paragraph 155) – we are not entirely convinced by the approach that was adopted in order to establish that such protection existed in the instant case.

The majority engages in a general abstract review of the Community system (see paragraphs 159-64 of the judgment) – a review to which all the Contracting Parties to the European Convention on Human Rights could in a way lay claim – and concludes that the protection of fundamental rights by Community law can be considered to be “equivalent” to that of the Convention system, thereby enabling the concept of presumption to be brought into play (see paragraph 165).

Needless to say, we do not wish to question that finding. We are fully convinced of the growing role of fundamental rights and their far-reaching integration into the Community system, and of the major changes in the case-law taking place in this field. However, it remains the case that the Union has not yet acceded to the European Convention on Human Rights and that full protection does not yet exist at European level.

Moreover, as the judgment rightly emphasises, “the effectiveness of such substantive guarantees of fundamental rights depends on the mechanisms of control in place to ensure observance of such rights” (see paragraph 160). From this procedural perspective, the judgment minimises or ignores certain factors which establish a genuine difference and make it unreasonable to conclude that “equivalent protection” exists in every case.

On the one hand, we have a reference for a preliminary ruling to the European Court of Justice, made not by the applicant company but by the Supreme Court of Ireland. Such a reference does not constitute an appeal but a request for interpretation (Article 234 of the EC Treaty). Although the interpretation of Community law given by the European Court of Justice is binding on the court which made the referral, the latter retains full discretion in deciding how to apply that ruling in concreto when resolving the dispute before it. Equally, in its general review of “equivalent protection”, the judgment should probably have explored further those situations which, admittedly, do not concern the instant case but in which the European Court of Justice allows national courts a certain discretion in implementing its judgment and which could become the subject matter of an application to the European Court of Human Rights. However, it is clear from paragraph 157 of the judgment and the reference to Cantoni v. France (judgment of 15 November 1996, Reports 1996-V) that the use of discretion in implementing a preliminary ruling by the European Court of Justice is not covered by the presumption of “equivalent protection”.

On the other hand, as the judgment itself acknowledges, individuals' access to the Community court is “limited” (see paragraph 162). Yet, as the Court reiterated in Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005-I), the right of individual application “is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention” (see paragraph 122 of that judgment). Admittedly, judicial protection under Community law is based on a plurality of appeals, among which the reference to the Court of Justice for a preliminary ruling has an important role. However, it remains the case that, despite its value, a reference for a preliminary ruling entails an internal, a priori review. It is not of the same nature and does not replace the external, a posteriori supervision of the European Court of Human Rights, carried out following an individual application.

The right of individual application is one of the basic obligations assumed by the States on ratifying the Convention. It is therefore difficult to accept that they should have been able to reduce the effectiveness of this right for persons within their jurisdiction on the ground that they have transferred certain powers to the European Communities. For the Court to leave to the Community's judicial system the task of ensuring “equivalent protection”, without retaining a means of verifying on a case-by-case basis that that protection is indeed “equivalent”, would be tantamount to consenting tacitly to substitution, in the field of Community law, of Convention standards by a Community standard which might be inspired by Convention standards but whose equivalence with the latter would no longer be subject to authorised scrutiny.

4. Admittedly, the judgment states that such in concreto review would remain possible, since the presumption could be rebutted if, in the circumstances of a particular case, the Court considered that “the protection of Convention rights was manifestly deficient” (see paragraph 156).

In spite of its relatively undefined nature, the criterion “manifestly deficient” appears to establish a relatively low threshold, which is in marked contrast to the supervision generally carried out under the European Convention on Human Rights. Since the Convention establishes a minimum level of protection (Article 53), any equivalence between it and the Community's protection can only ever be in terms of the means, not of the result. Moreover, it seems all the more difficult to accept that Community law could be authorised, in the name of “equivalent protection”, to apply standards that are less stringent than those of the European Convention on Human Rights when we consider that the latter were formally drawn on in the Charter of Fundamental Rights of the European Union, itself an integral part of the Union's Treaty establishing a Constitution for Europe. Although these texts have not (yet) come into force, Article II-112(3) of the Treaty contains a rule whose moral weight would already appear to be binding on any future legislative or judicial developments in European Union law: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.”

Thus, in order to avoid any danger of double standards, it is necessary to remain vigilant. If it were to materialise, such a danger would in turn create different obligations for the Contracting Parties to the European Convention on Human Rights, divided into those which had acceded to international conventions and those which had not. In another context, that of reservations, the Court has raised the possibility of inequality between Contracting States and reiterated that this would “run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights” (Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 28, § 77).

CONCURRING OPINION OF JUDGE RESS

1. This judgment demonstrates how important it will be for the European Union to accede to the European Convention of Human Rights in order to make the control mechanism of the Convention complete, even if this judgment has left the so-called M. & Co. approach far behind (no. 13258/87, Commission decision of 9 February 1990, Decisions and Reports 64). It has accepted the Court's jurisdiction ratione loci, personae and materiae under Article 1 of the Convention, clearly departing from an approach which would declare the European Communities immune, even indirectly, from any supervision by this Court. On the examination of the merits of the complaint, the question is whether there exists a reasonable relationship of proportionality between the interference with the applicant company's property, on the one hand, and the general interest, on the other. On the basis of its case-law, the Court developed, in particular in Waite and Kennedy v. Germany ([GC], no. 26083/94, ECHR 1999-I), a special ratio decidendi regarding the extent of its scrutiny in cases concerning international and supranational organisations. I can agree with the result in this case that there was no violation of Article 1 of Protocol No. 1 and that the interference with the use of the applicant company's property – in the general interest of safeguarding the sanctions regime of the United Nations and the European Community – did not go beyond the limits any trading company must be prepared to accept in the light of that general interest. One could argue that to come to this conclusion the whole concept of presumed Convention compliance by international organisations, and in particular by the European Community, was unnecessary and even dangerous for the future protection of human rights in the Contracting States when they transfer parts of their sovereign power to an international organisation.

2. The judgment should not be seen as a step towards the creation of a double standard. The concept of a presumption of Convention compliance should not be interpreted as excluding a case-by-case review by this Court of whether there really has been a breach of the Convention. I subscribe to the finding of the Court that there exists within the European Community an effective protection of fundamental rights and freedoms including those guaranteed by the Convention even if the access of individuals to the ECJ is rather limited, as the Court has recognised, if not criticised, in paragraph 162 of the judgment. The Court has not addressed the question of whether this limited access is really in accordance with Article 6 § 1 of the Convention and whether the provisions, in particular, of former Article 173 of the EC Treaty should not be interpreted more extensively in the light of Article 6 § 1 of the Convention, a point that was in issue before both the Court of First Instance and the ECJ in Jégo-Quéré & Cie S.A. v. Commission of the European Communities (Case T-177/01 [2002]

ECR II-2365 (Court of First Instance) and Case C-263/02 P [2004] ECR I-3425 (ECJ)). See also the ECJ's judgment in Unión de Pequeños Agricultores v. Council of the European Union (Case C-50/00 P [2002] ECR I-6677). One should not infer from paragraph 162 of the judgment in the present case that the Court accepts that Article 6 § 1 does not call for a more extensive interpretation. Since the guarantees of the Convention only establish obligations “of result”, without specifying the means to be used, it seems possible to conclude that the protection of fundamental rights, including those of the Convention, by Community law can be considered to have been “equivalent” (see paragraph 165 of the judgment), even if the protection of the Convention by the ECJ is not a direct one but rather an indirect one through different sources of law, namely the general principles of Community law. The criticism has sometimes been made that these general principles of Community law do not, as interpreted by the case-law of the ECJ, fulfil the required standard of protection, as they are limited by considerations of the general public interest of the European Community. This reasoning makes it rather difficult for the ECJ to find violations of these general principles of Community law. The Court's analysis of the “equivalence” of the protection is a rather formal one, and relates only to the procedures of protection and not to the jurisprudence of the ECJ in relation to the various substantive Convention guarantees: a major part of the jurisprudence of the ECJ on the level and intensity of the protection of property rights and the application of Article 1 of Protocol No. 1 is missing. But it is to be expected in future cases that the presumption of Convention compliance should and will be enriched by considerations about the level and intensity of protection of a specific fundamental right guaranteed by the Convention. In my view, one cannot say once and for all that, in relation to all Convention rights, there is already such a presumption of Convention compliance because of the mere formal system of protection by the ECJ. It may be expected that the provisions of the Charter of Fundamental Rights of the European Union, if it comes into force, may enhance and clarify this level of control for the future.

3. The Court decided that the presumption can only be rebutted if, in the circumstances of a particular case, it is considered that the protection of the Convention rights was manifestly deficient. The protection was manifestly deficient when there has, in procedural terms, been no adequate review in the particular case such as: when the ECJ lacks competence (as in Segi and Gestoras Pro-Amnistía and Others v. Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, the United Kingdom and Sweden (dec.), nos. 6422/02 and 9916/02, ECHR 2002-V); when the ECJ has been too restrictive in its interpretation of individual access to it; or indeed where there has been an obvious misinterpretation or misapplication by the ECJ of the guarantees of the Convention right. Even if the level of protection must only be “comparable” and not “identical”, the result of the protection of the Convention rights should be the same. It is undisputed that the level of control extends to both procedural and substantive violations of the Convention guarantees. Article 35 § 3 of the Convention refers to applications which are manifestly ill-founded and the new Article 28 § 1 (b) as inserted by Protocol No. 14 gives Committees the power to declare applications which are manifestly well-founded admissible and render at the same time a judgment on the merits, that is, in the wording of that new Article, if the underlying question in the case concerns an interpretation or application of the Convention (or its Protocols) which is already the subject of well-established case-law of the Court. One would conclude that the protection of the Convention right would be manifestly deficient if, in deciding the key question in a case, the ECJ were to depart from the interpretation or the application of the Convention or the Protocols that had already been the subject of well-established ECHR case-law. In all such cases, the protection would have to be considered to be manifestly deficient. In other cases concerning new questions of interpretation or application of a Convention right, it may be that the ECJ would decide in a way the ECHR would not be prepared to follow in future cases, but in such cases it would be difficult to say that the deficiency was already manifest. But even that result should not be excluded ab initio. Accordingly, and relying on the wording of the Convention and its Protocols, I do not see the “manifestly deficient” level to be a major step in the establishment of a double standard. Since the ECJ would, in a future case, be under an obligation to consider whether there was already an interpretation or an application of the Convention which was the subject of well-established ECHR case-law, I am convinced that it is only in exceptional cases that the protection will be found to have been manifestly deficient. In the light of this interpretation of the judgment which confirms the ECJ's obligation to follow the “well-established case-law of the ECHR” I have agreed to the maxim in paragraph 156.

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