No violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and prior to his conviction lived in PERSON .

On DATE the investigator of ORG , with approval by a prosecutor , requested ORG , ORG , to remand the applicant in custody on suspicion of banditry and involvement in an organised criminal group .

On DATE the applicant was arrested .

In the meantime , on DATE ORG remanded the applicant in custody . The court held as follows :

“ The crimes of which [ the applicant ] is suspected fall into a category of especially grave crimes punishable by over DATE imprisonment .

Opting for a more lenient preventive measure for [ the applicant ] is impossible , taking into account the particular gravity of the crimes of which [ the applicant ] is suspected , as well as the fact that disclosure of the identity of members of a criminal gang , including [ the applicant ] , can create a real threat to the safety of witnesses , victims and their relatives , which follows from [ statements ] by [ witness NORP ] ... ”

On DATE charges of banditry , involvement in a criminal group , extortion and fraud under Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Criminal Code were brought against the applicant . He was questioned as the defendant .

On DATE ORG upheld the decision of CARDINAL DATE on appeal .

On an unspecified date the applicant challenged the lawfulness of his arrest . Stating that he was an advocate , the applicant claimed that his arrest required the prior consent of a court . On DATE ORG , acting as the most senior level of jurisdiction , found the applicant ’s arrest not to have breached the requirements of the domestic law .

On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :

“ The crimes [ charged against the applicant ] belong , pursuant to LAW , to the category of particularly grave crimes , which according to LAW gives ground for the application of a [ custodial measure ] . ...

At the present time it is necessary to carry out several operational and investigative actions , to establish the whereabouts of the known members of the criminal gang , to bring charges against them , to carry out interrogations and confrontations , as well as to familiarise the defendants , the victims and their counsel with the case - file material . ...

The argument by defence counsel about the change of circumstances which laid the basis for application of a custodial measure can not be taken into consideration .

The reference of defence counsel to the fact that the charges against [ the applicant ] do not involve an episode involving [ witness NORP ] , whose statement that he had received death threats from [ the applicant ] had been the ground for application of a custodial measure , is unsubstantiated .

A statement by [ witness NORP ] , his handwritten explanation , as well as the record of the viewing of a video recording of DATE , from which it follows that NORP is a witness to a crime , [ that he ] fears for his life and [ that ] the threat comes , inter alia , from [ the applicant ] , have been examined by the judge [ ... ] as matters characterising [ the applicant ’s ] personality and giving grounds to believe that his being at large could constitute a real danger to safety for [ witness NORP ] as for other witnesses , victims and their families .

Therefore , taking into account the foregoing and the nature of the crimes with which [ the applicant ] is charged , the court concludes that there are sufficient grounds to believe that [ if not detained , the applicant ] may interfere with the proceedings in the criminal case by influencing witnesses .

In such circumstances there are no grounds for altering the custodial measure to a more lenient one . ... ”

On DATE ORG upheld the above decision on appeal .

On DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively . The court relied on the gravity and the nature of the charges , the particular complexity of the case and the necessity to carry out subsequent investigative actions . It further invoked the risks of the applicant ’s absconding and hampering the criminal proceedings by exerting pressure on witnesses and victims , and the absence of any grounds for altering the custodial measure .

On DATE ORG upheld the decision of DATE on appeal .

“ It appears from the case - file material that the armed gang of which [ the applicant ] was a member had and has well - tested systems of secrecy and defence from law - enforcement bodies ( отработанные системы конспирации и защиты от правоохранительных органов ) ; if at liberty [ the applicant ] might take action against the ongoing investigation , including by way of exerting unlawful pressure on witnesses and victims .

It follows from the case - file material that in the course of operational search activities officers of ORG at ORG of the ORG obtained information to the effect that the members of the GPE criminal group , knowing that criminal proceedings in connection with its criminal activity had begun , were making inquiries about those who had been questioned in the case as witnesses and victims , with the view of subjecting them to unlawful influence . ... ”

On DATE ORG further extended the applicant ’s detention until DATE , that is for a total duration of DATE . In taking the relevant decision ORG had regard to the particular gravity of the charges against the applicant and the risk that he would exert pressure on witnesses ( the court applied the wording of the previous extension order of DATE ) . The court also examined the possibility of applying a more lenient preventive measure and dismissed it .

On DATE the charges against the applicant were rectified . They involved banditry , involvement in a criminal group , extortion , fraud , pressurising those involved to complete deals , organising robbery , murder , attempted murder and infliction of grave bodily harm , and trafficking in firearms and ammunitions under ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL § DATE , CARDINAL § CARDINAL ( in conjunction with LAW ) , CARDINAL § CARDINAL ( in conjunction with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) , CARDINAL § CARDINAL ( in conjunction with LAW § CARDINAL ) and CARDINAL § CARDINAL ( alone and in conjunction with LAW ) of LAW .

On DATE the applicant and his lawyer were informed that the pre - trial investigation had been terminated . From the documents submitted by the Government it can be seen that they both signed the document on termination of the pre - trial investigation and expressed the wish to read the case file , both together and separately .

On DATE the applicant started reading the case file .

On DATE the applicant ’s lawyer was invited to study the case file . This is supported by a letter inviting the applicant ’s lawyer to appear at the IZ-CARDINAL/CARDINAL facility in Ryazan at TIME to study the case - file material . The letter bears a handwritten note made by the head of the bar association , of which the applicant ’s lawyer was a member : “ Received for transfer to PERSON . CARDINAL DATE . Signature ” .

On DATE ORG extended the applicant ’s pre - trial detention until he and his lawyer had finished studying the case file ( consisting of CARDINAL volumes ) , but not beyond DATE . The court held as follows :

“ [ ... ] Pursuant to LAW , if upon completion of a pre - trial investigation the time - limits set out in LAW for giving the accused and his counsel access to the case file have been complied with , but the DATE period proves insufficient for them to read the entire file , an investigator [ ... ] may submit to the court , DATE before the expiry of the maximum detention period , a request for extension of the period of detention . In [ the applicant ’s ] case the above - mentioned requirements of law have been complied with .

In his request for extension of [ the applicant ’s ] detention pending the investigation until [ the applicant ] and his counsel had finished reading the file [ ... ] the investigator indicated that at the present moment there were no grounds for altering or discontinuing the application of a [ custodial measure ] . As before , there are sufficient reasons to believe that , if released , [ the applicant ] , taking into account the gravity of the charges against him , may abscond or otherwise obstruct the proceedings in the case . Therefore , the circumstances which led the court to apply the custodial measure to [ the applicant ] have remained unchanged .

At the same time , extending [ the applicant ’s ] detention until he and his counsel have finished reading the case file ... without indicating a specific DATE contradicts the requirements of LAW . The above Article implies that the extension is granted for the time requested by the investigation authorities . [ However ] , extending [ the applicant ’s ] detention without indication of a specific DATE ... would have worsened [ his ] situation and removed the preventive measure from judicial control .

On DATE the Deputy Prosecutor General extended the time - limit for pretrial investigation ... until DATE inclusive .

Therefore , the court extends [ the applicant ’s ] detention until he and his counsel have finished reading the case file ... , until DATE inclusive , that is until the expiry of the time - limit for the pre - trial investigation . ...

The argument put forward by the defence , to the effect that the investigation authorities have breached the requirements of LAW , is unsubstantiated .

It follows from the record on termination of the investigative actions of DATE that [ the applicant ] and [ his lawyer ] expressed their wish to read the case file both together and separately .

On DATE the head of ORG [ of ORG ] , PERSON , received a notification in the name of [ the applicant ’s lawyer Yud . ] informing [ the latter ] that [ the applicant ] had started reading the case file and that he was also invited to appear on DATE at the Ryazan IZ-CARDINAL/CARDINAL remand prison to [ study the case file ] .

According to the record of the studying of the case file and statements made by [ the applicant ] and [ his lawyer ] , they met in the remand prison on several occasions after DATE , yet did not discuss when they would jointly study the case file .

It appears from the foregoing that until DATE [ applicant ’s lawyer Yud . ] deliberately did not appear to study the case file , to give himself an opportunity to use this situation before the court .

The requirements of LAW were therefore complied with ... ”

On DATE ORG upheld the above decision on appeal .

On DATE , and DATE , CARDINAL DATE and CARDINAL DATE , ORG further extended the applicant ’s detention until he and his lawyer had completed their reading of the case file , but not beyond DATE , CARDINAL DATE and CARDINAL DATE , and CARDINAL DATE respectively . All the decisions were worded similarly to the decision of DATE .

On DATE and DATE , CARDINAL DATE and CARDINAL DATE respectively , ORG upheld the above decisions on appeal .

Following the request by the investigator , on CARDINAL DATE ORG limited until DATE the time for the applicant and his lawyer to study the case file .

On DATE the investigator took a decision that the reading of the case file by the applicant and his lawyer should be terminated .

On DATE the applicant and his lawyer signed the record to the effect that they had completed their reading of the case file .

On DATE , however , ORG further extended the applicant ’s detention until DATE , with reference to LAW . The court had regard to the fact that the applicant ’s lawyer had submitted a request ( the nature of the request was not specified in the relevant court decision ) which had not yet been processed , that other co - defendants had not finished reading the case file , and also to the gravity and the nature of the charges against the applicant and the risk of his absconding or otherwise interfering with the course of the proceedings .

On DATE the criminal case against the applicant and CARDINAL others was transferred to ORG for trial .

At the preliminary hearing on DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention during judicial proceedings until DATE . In so far as it concerned the applicant , the decision read as follows :

“ ... [ The applicant ] was arrested on DATE . His detention has been repeatedly extended in accordance with the criminal procedural law , the last time until DATE , for a total of DATE , DATE and DATE .

Pursuant to LAW a preventive measure can be lifted or changed if it is no longer necessary or if the grounds for its application have changed .

It follows from the material examined by the court that the factual circumstances which had served as the ground for the court decisions to apply a custodial measure to the defendants and its subsequent extension have not changed and remain ... sufficient , from the point of view of the principle of reasonableness , to maintain the [ above ] preventive measure . No convincing arguments were put forward by the defence as to the existence of any new factual or legal grounds for altering the preventive measure .

The circumstances pointed out by the defendants and their counsel such as [ the GPE ] positive references , their family situation , [ the existence of ] permanent residence , [ their ] state of health and the necessity to support their families , do not preclude a risk of them absconding from justice or otherwise obstructing the proceedings in the case , since the defendants are charged with particularly grave crimes , including banditry . ...

The [ above ] circumstances are not favourable for replacing the [ custodial ] measure with [ a more lenient one ] .

Notwithstanding the overall length of the GPE detention , the existing risk of their absconding is a sufficient ground for limiting their [ right to ] liberty of person . Furthermore , the extension of detention in respect of defendants charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses , as well as the public interest , which , in spite of the presumption of innocence , outweighs the respect for individual liberty . ... ”

In the meantime , on DATE ORG had scheduled the opening date of the trial and maintained the preventive measures applied to the applicant and his co - defendants .

On DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention for DATE , until DATE . It found as follows :

“ ... [ The defendants ] have been charged with banditry and involvement in criminal community , - criminal offences directed against public safety and public order . [ The applicant and CARDINAL other co - defendants ] have also been charged with aggravated murders . The crimes charged against the defendants belong to a category of grave and particularly grave crimes the punishment for which not only exceeds CARDINAL years’ imprisonment , but also exceeds the time the defendants had spent in custody so far .

According to the information contained in the case file regarding the [ defendants’ ] personalities :

- [ the applicant and CARDINAL others ] , who have families and children , were not working for a long time before their arrests ; ...

It also follows from the submissions by the prosecution that :

[ Prosecution witness PERSON . ] submitted to the court that pressure had been exerted on him by the defendants in respect of whom the custodial measure had been applied with the purpose of forcing him to make false statements about them .

[ Defendant PERSON ] who admitted his guilt [ ... ] but who had not yet been questioned by the court on the merits of the charges , asked the court to take safety measures in his respect until he had been questioned , fearing [ intimidation ] by [ the defendants in detention ] . ...

Safety measures had been taken in respect of a number of witnesses who [ also ] feared for their safety . Some of them ... were questioned by the court anonymously and in conditions in which they could not be seen by others present during the proceedings .

[ Separate proceedings were instituted against several other suspects who are being searched for . ] ...

The breaches of court orders committed by the defendants during the questioning of prosecution witnesses show that they were attempting to influence witnesses even in court .

Of CARDINAL [ prosecution witnesses ] the court has questioned CARDINAL .

Therefore , it has been established that the court had not questioned the majority of the witnesses and victims ; [ that ] there are grounds to be concerned about [ the risk of ] unlawful influence over them by the defendants ; [ that ] there are witnesses and one of the defendants who fear such influence ; [ that ] the defendants have actual opportunity to exert such influence even while they are in custody ; [ and that ] there are witnesses who have already been intimidated [ by the defendants ] .

Analysis of the above information gives grounds to believe that , if released , the defendants not only may abscond and maintain their criminal activity , but also influence victims and witnesses who have not yet been questioned by the court , thereby obstructing the administration of justice .

The defence has not put forward any circumstances preventing the defendants from being detained in custody ; nor can any such circumstances be seen from the case file . The defence has also not put forward a valid argument regarding the existence of new factual or legal grounds for altering the custodial measure .

The circumstances mentioned by the defence ... such as [ the GPE ] positive references , their [ family situation ] and [ existence of permanent residence ] ... can not be viewed by the court as preferential and sufficient grounds for altering the custodial measure . Besides , the existence of these circumstances as such does not exclude the possibility that the defendants will abscond or otherwise obstruct the proceedings in the case , since they are charged with particularly serious crimes , including banditry , punishable with imprisonment .

When examining parties’ requests concerning custodial measures the court takes into consideration : the gravity and the nature of the charges against the defendants ; the reasonableness of the suspicion justifying the placement of each defendant in custody ; the time each of the defendants had already spent in custody ; personal data in respect of each of the defendants ; [ and ] the possibility of applying a more lenient preventive measure .

The [ defendants’ ] detention had been ordered and repeatedly extended in accordance with the rules of criminal procedure .

LAW provides for the possibility of extending detention during criminal proceedings beyond DATE in cases concerning serious or particularly serious criminal offences , each time for no longer than DATE .

It follows from the case - file material that the factual circumstances which [ were taken into consideration by the courts ] when [ applying and extending ] the custodial measure had not only remained unchanged , but had been expanded by new and substantial circumstances , which , taken together , are evaluated by the court as sufficient ... grounds for maintaining the custodial measure .

The risk existing at the current stage of the proceedings of the GPE absconding is a sufficient ground for [ further ] deprivation of [ their ] liberty , notwithstanding the lengthy term of their pre - trial detention . Besides , the extension of detention in respect of those charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses , as well as [ the necessity to protect ] the public interest , which , in spite of [ the GPE ] presumption of innocence , outweighs respect for individual liberty . ... ”

On DATE ORG upheld the above decision on appeal .

On DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention for DATE , until DATE inclusive . The court applied the same reasoning as in its extension order of DATE . In addition , the court took into account that the members of the criminal group of which the applicant was allegedly a member helped each other whenever criminal proceedings were instituted against either of them , so that the member would escape punishment or receive a less severe one . The court specifically referred to CARDINAL examples of such behaviour by members of the criminal group in question .

On DATE , DATE and DATE ORG extended the applicant ’s and CARDINAL other co - defendants’ detention each time for DATE , until DATE and CARDINAL DATE and CARDINAL DATE respectively . The court adopted the same reasoning as in its previous extension orders and addressed new arguments raised by some of the defendants ( not the applicant ) .

On DATE , DATE and CARDINAL DATE respectively ORG upheld the above extension orders on appeal .

On DATE ORG extended the applicant ’s and his CARDINAL co - defendants’ detention during judicial proceedings for DATE , until DATE . The court added to its previous reasoning the fact that during the trial some of the witnesses and the victims had changed their statements in so far as they concerned the applicant and CARDINAL other co - defendants . The court further referred to the large volume of case material and evidence , involving multiple episodes and numerous participants .

On DATE , DATE , CARDINAL DATE and DATE ORG further extended the applicant ’s and his CARDINAL ORG detention during judicial proceedings , each time for DATE , until DATE and CARDINAL DATE and DATE and CARDINAL DATE respectively . The court applied the same line of reasoning as in its previous extension orders . The extension order of CARDINAL DATE further addressed the GPE argument that the length of their detention during judicial proceedings was excessive :

“ The defendant ’s argument , that their detention during judicial proceedings has been excessively long , is disproved by the trial itself . The multi - episode criminal case with a large number of participants has been being examined [ by the court ] on the merits since DATE ; hearings are only adjourned at the request of the defence or when defence counsel are unable to attend ; there are no unjustified interruptions in the proceedings . The court has repeatedly applied ... measures to all the defendants detained during judicial proceedings ... for breaches of court orders and [ manifest actions aimed at ] delaying the proceedings . The legal and factual complexity of the case , the conduct of the defendants ... and the organisational measures being taken by the court show [ that the trial is being carried out in compliance with the reasonable time requirement ] . ”

On DATE ORG convicted the applicant of banditry , aggravated murder , robbery , extortion , fraud and pressurising others to complete deals , and sentenced him to CARDINAL years’ imprisonment . The judgment ran to CARDINAL pages .

On DATE ORG of GPE upheld the above judgment on appeal .

Article CARDINAL of the LAW provides that everyone shall have the right to freedom and inviolability of person . It further provides that arrest , detention and remand in custody shall be allowed only by a court decision .

The police may arrest a person suspected of committing an offence punishable by imprisonment if the person is caught in the act of committing an offence or immediately after committing it . No judicial authority is required for the arrest ( LAW ) .

Within TIME of the time of the arrest a suspect must be released if a preventive measure in the form of remand in custody has not been imposed on the person or a final decision has not been deferred by a court . When remand in custody is deemed necessary , an application must be lodged to that effect with a district court by a prosecutor or by an investigator with the consent of a prosecutor ( LAW ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) ( Article CARDINAL ) .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ pending investigation ” . The maximum permitted period of detention “ pending investigation ” must not exceed DATE . It may subsequently be extended DATE ( LAW ) .

Further extensions to DATE are possible only in relation to persons accused of serious or particularly serious criminal offences , in view of the complexity of the case and if there are grounds justifying detention . An investigator ’s request for extension must be approved by ORG ( Article CARDINAL § CARDINAL ) .

An extension of detention beyond DATE and DATE may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences , upon an investigator ’s request approved by ORG or his Deputy ( Article CARDINAL § CARDINAL ) .

Extension of detention beyond DATE is prohibited and the detainee must be released immediately , unless the prosecution ’s request for an extension for the purpose of studying the case has been granted by a court in accordance with LAW of the CCrP ( LAW ) .

Upon completion of the investigation , the detainee must be given access to the case file DATE before the expiry of the maximum period of detention indicated in DATE ( Article CARDINAL § CARDINAL ) .

NORP If access is granted on DATE the detainee must be released after the expiry of the maximum period of detention ( LAW ) .

If access is granted DATE before the expiry of the maximum period of detention but the DATE period proves insufficient to read the entire case file , the investigator may request the court to extend the period of detention . The request must be submitted DATE before the expiry of the detention period . If several defendants are involved in the proceedings and the DATE period is insufficient for CARDINAL of them to read the entire case file , the investigator may request the court to extend the period of detention in respect of those defendants who have finished reading the case file , provided that the need for a custodial measure for them persists and that there are no grounds for choosing another preventive measure ( LAW ) .

Within DATE of receipt of a request for an extension , the judge must decide whether to grant it or reject it and release the detainee . If the extension is granted the period of detention is extended until such time as will be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court ( Article CARDINAL § CARDINAL) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during judicial proceedings ” ) . The period of detention “ during judicial proceedings ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

A decision to open a criminal case against an advocate is taken by a prosecutor with prior approval by a district judge ( Article CARDINAL § CARDINAL ) .

Advocates are not immune from arrest ( Article CARDINAL ) .

Prior to institution of criminal proceedings against an advocate investigative actions are carried out following approval by a district judge ( LAW ) .

Examining the compatibility of LAW ( now replaced by LAW ORG , the sole difference between ORG being that LAW , in contrast to the new LAW , imposed a DATE limitation on the maximum period of detention for the purpose of studying the case file with the LAW , on DATE ORG ruled as follows :

“ ... affording the defendant sufficient time for studying the file must not result in ... his being detained indefinitely . Indefinite detention would amount to punishment of the defendant for exercising his procedural rights and thereby inducing him to waive those rights ... ”

On DATE ORG issued a further clarification of its position ( decision no . CARDINAL-O ) , finding as follows :

“ CARDINAL . ... the studying of the file [ by the defendant and his counsel ] is a necessary condition for extending the term of detention [ beyond DATE ] but it may not be , taken on its own as a sufficient ground for granting such an extension ... For that reason , in each case the prosecutor ’s application for extending the period of detention beyond DATE ( LAW , CARDINAL of the RSFSR CCrP ) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure can not be revoked and the legal grounds for its continued application remain ...

... LAW RSFSR CCrP expressly provides that , on an application by a prosecutor , a judge may extend a defendant ’s detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [ trial ] court , but by no longer than DATE . Accordingly , the law does not provide for the lodging of repeated applications for extension of the defendant ’s detention , even after an additional investigation [ has been carried out ] ... In the absence of an express legal provision for repeated extensions of detention on that ground , any other interpretation of [ LAW ] would breach the prohibition on arbitrary detention within the meaning of ORG decision of CARDINAL DATE . ”

By its decision no . CARDINAL of DATE ORG declined to examine a complaint by a PERSON . , in which he challenged the compatibility with LAW CARDINAL § CARDINAL of the Code of Criminal Procedure , in so far as it allowed the extension of detention pending investigation beyond the maximum time - limit and indefinitely while the defendant finished reading the material in the case file . ORG held that such an extension was only possible if there still existed “ sufficient grounds to believe ” that the accused might abscond during the investigation or trial , reoffend or otherwise obstruct the establishment of the truth , as provided by LAW . In so far as the challenged provision did not set a specific time - limit for holding the defendant in custody while he studied the case file , ORG considered that it allowed for the possibility of determining such a time - limit for each particular case , depending on its specific features , on condition that the grounds for detention established in LAW had been sufficiently confirmed . The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention . Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order , as well as to make an application for lifting or altering the custodial measure .

By decision no . CARDINAL of DATE , ORG confirmed its position , by reference to above - cited decision no . CARDINAL-O , that in the absence of an express provision to that effect , time - limits during a pre - trial investigation may not be repeatedly extended , particularly on the same grounds , in excess of the maximum time - limit set out in the CCrP.

By its decision no . CARDINAL - O of DATE , ORG declined to examine a similar complaint by a Mr NORP With reference to its previous decisions of CARDINAL DATE , CARDINAL DATE and DATE , ORG held that even though Article CARDINAL § CARDINAL did not define the maximum period within which an extension could be granted for the purpose of studying the case file , it did not imply the possibility of excessive or unlimited detention because , in granting an extension , the court should not rely solely on a well - founded suspicion that the defendant had committed the offence , but should mainly base its decision on specific circumstances justifying the continued detention , such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending , as well as the importance of the subject matter of the proceedings , the complexity of the case , the conduct of the defendant and other relevant factors .

DATE . In its decision no . CARDINAL of CARDINAL DATE “ On the ORG by ORG in ORG in Custody , Bail and ORG Arrest ” the Plenum of ORG held as follows :

“ CARDINAL . [ ... ] Pursuant to LAW , following a request by an investigator the court may extend an accused ’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [ trial ] court , if upon completion of the pre - trial investigation the accused has been given access to the case file DATE before the expiry of the maximum period of detention indicated in LAW and CARDINAL [ CARDINAL , DATE ] . In that case the relevant extension order should indicate the exact period for which the extension is made . ”


The applicant , Mr ORG , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr V. Hajduk , a lawyer practising in PERSON .

The facts of the case , as submitted by the applicant , may be summarised as follows .

On DATE the applicant ’s neighbour , together with his wife and son , entered the applicant ’s courtyard against the applicant ’s will . They had an altercation with the applicant in the course of which both the applicant and the neighbour ’s wife were injured .

The applicant was examined by doctors . The medical certificates indicate that the applicant ’s eye was injured and that he had facial bruising . The applicant was unable to work for DATE . Subsequently , the doctors established that the applicant ’s ear had been seriously damaged . According to the applicant , this was due to the injury which he suffered on DATE .

On DATE the applicant filed a criminal complaint with the police department in GPE in which he complained that he had been wounded and that his right to respect for his home had been violated . On DATE the police concluded that the neighbours had not committed a criminal offence . The case was submitted to ORG with a view to establishing whether the actions complained of constituted minor offences falling under LAW .

Subsequently , ORG instructed the police to investigate whether or not an offence had been committed in the context of the above altercation between the applicant and his neighbours . On DATE ORG stayed the proceedings pending the outcome of the investigation . It appears that criminal proceedings were brought against the applicant on the ground that he had injured the neighbour ’s wife . The criminal proceedings are still pending .

On DATE ORG discontinued the proceedings under LAW . It found that DATE had lapsed from the date on which the alleged minor offences had been committed and that the liability of the persons concerned had lapsed .

On DATE a public prosecutor of ORG in PERSON informed the applicant that he had found no shortcomings in the way in which his criminal complaint had been investigated .

On DATE ORG dismissed the applicant ’s complaint that the police and public prosecutors had failed to investigate properly the incident of DATE . The letter stated that the ORG actions could only be qualified as minor offences .

The Civil Code and the relevant practice

Under Article CARDINAL(CARDINAL ) , owners of property are entitled to protection against persons who interfere with their property rights .

In accordance with the relevant case - law , a court shall order a person who interfered , without justification , with the owner ’s rights to abstain from such interference . A claim under LAW may be successfully lodged even in cases where the interference consisted of a single action which remained without consequences if it can not be excluded that the action would be repeated in the future ( ORG and Opinions , CARDINAL . CARDINAL and CARDINAL ) .

The Criminal Code

Under Article CARDINAL , a person who commits an assault in that he or she deliberately damages the health of another person shall be punished by a fine or by a prison sentence up to DATE .

Pursuant to LAW , a person who deliberately causes serious damage to another person ’s health shall be punished by a prison sentence DATE .

Article CARDINAL provides that a person who , without justification , enters the domestic premises of another person commits the offence of violation of domestic privacy . Such an offence is punishable , depending on the circumstances , by a fine or by a prison sentence of DATE .

Regulation No . CARDINAL/CARDINAL

Regulation No . CARDINAL/CARDINAL , as amended , governs compensation for damage caused to a person ’s health .

Pursuant to section CARDINAL(CARDINAL ) , adequate compensation shall be awarded in respect of pain resulting from damage to a person ’s health , subsequent medical treatment and the elimination of the effects of damage to health . The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation .

Sections CARDINAL - CARDINAL govern the payment of compensation for lasting effects of damage to a person ’s health .


CASE OF BOSPHORUS HAVA YOLLARI TURIZM VE TICARET ANONIM SIRKETI v. IRELAND

Preliminary objections rejected (out of time, non-exhaustion of domestic remedies);No violation of P1-1

Christos Rozakis;Nicolas Bratza;Paul Mahoney

The applicant company is an airline charter company incorporated in GPE in DATE .

By an agreement dated DATE , the applicant company leased CARDINAL ORG CARDINAL - CARDINAL aircraft from ORG ( JAT ) , the national airline of the former GPE . These were , at all material times , the CARDINAL aircraft operated by the applicant company . The lease agreement was a “ dry lease without crew ” for a period of DATE from the dates of delivery of the QUANTITY aircraft ( DATE and CARDINAL DATE ) . According to the terms of the lease , the crew were to be the applicant company 's employees and the applicant company was to control the destination of the aircraft . While ownership of the aircraft remained with ORG , the applicant company could enter the aircraft on ORG provided it noted ORG 's ownership .

The applicant company paid a lump sum of MONEY ( ORG ) per aircraft on delivery . The DATE rental was CARDINAL ORG per aircraft . On CARDINAL and CARDINAL DATE the CARDINAL aircraft were registered in GPE as provided for in the lease . On DATE the applicant company obtained its airline licence .

DATE ORG adopted , and ORG implemented , a series of sanctions against GPE and GPE ) – “ the FRY ” – designed to address the armed conflict and human rights violations taking place there .

NORP In DATE the applicant company began discussions with TEAM ORG ( “ TEAM ” ) with a view to having maintenance work ( “ C - Check ” ) done on CARDINAL of its leased aircraft . ORG was a limited liability company whose principal business was aircraft maintenance . It was a subsidiary of CARDINAL NORP airline companies wholly owned by ORG . Memoranda dated DATE showed that ORG considered , on the basis of information obtained , that the applicant company was not in breach of the sanctions regime , noting that it was doing business with many companies , including ORG , ORG and ORG ( a NORP aero - engine company ) . By a letter of DATE , ORG requested the opinion of ORG , ORG ( “ ORG ” ) and included copies of its memoranda of DATE . On DATE ORG forwarded the request to ORG .

On DATE ORG adopted Resolution CARDINAL ( DATE ) , which provided that GPE should impound , inter alia , all aircraft in their territories “ in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] ” . That resolution was implemented by Regulation ( ORG ) no . CARDINAL/CARDINAL , which came into force on DATE ( see paragraph CARDINAL below ) .

On DATE ORG decided to refer the matter to ORG .

By a letter of CARDINAL DATE , ORG indicated to ORG that it considered that the leased aircraft were not in breach of the sanctions regime and requested flight clearance pending ORG decision . On DATE GPE sought the opinion of ORG .

On DATE CARDINAL of the applicant company 's leased aircraft arrived in GPE . A contract with ORG was signed for the completion of C - Check .

On DATE ORG to ORG indicated by facsimile to ORG that informal advice from the Secretary to ORG was to the effect that there was no problem with ORG carrying out the work , but that an “ informal opinion ” from the “ legal people in the ORG ” had been requested . On DATE ORG explained this to TEAM by telephone .

On DATE ORG confirmed to ORG that the “ informal legal advice ” obtained from the “ ORG legal office ” was to the effect that ORG should seek the “ guidance and approval ” of ORG before signing any contract with the applicant company . It was recommended that ORG submit an application to the ORG with relevant transaction details ; if the applicant company was to pay for the maintenance , it was unlikely that the ORG would have a problem with the transaction . On DATE ORG received a copy of that facsimile and sent a copy to ORG , who were also informed by telephone . By a letter dated DATE , ORG provided ORG with the required details and requested the latter 's “ guidance and approval ” .

On DATE the ORG disagreed with the NORP government 's view that the aircraft could continue to operate , referring to LAW ( DATE ) of ORG . ORG to the United Nations was informed of that opinion by a letter dated DATE .

At TIME on CARDINAL DATE the applicant company was informed by ORG that C - Check had been completed and that , on payment of CARDINAL , the aircraft would be released . DATE payment was received and the aircraft was released . While awaiting air traffic control clearance to take off , the aircraft was stopped . In his report , the duty manager of FAC noted that ORG had informed him that it had been advised by ORG that it would be “ in breach of sanctions ” for the aircraft to leave . He also stated that the aircraft had been scheduled to depart during that shift and that the airport police had been advised . TEAM informed the applicant company accordingly . ORG later confirmed by a letter ( of DATE ) its instructions of CARDINAL DATE :

“ ... [ TEAM ] were advised by ORG that , in the circumstances , ORG should not release the [ aircraft ] ... Furthermore , it was pointed out that if TEAM were to release the aircraft TEAM itself might be in serious breach of the ORG resolutions ( as implemented by ORG ( ORG ) no . CARDINAL/CARDINAL ) ... and the matter was under investigation . At the same time directions were given to ORG , whose clearance is necessary for departure of aircraft , not to clear this aircraft for take - off . ”

NORP By letters dated CARDINAL DATE to the applicant company , ORG noted that it was waiting for the opinion of ORG and that it had been advised by the authorities that release of the aircraft before receipt of that opinion would be in violation of the ORG sanctions regime .

By a memorandum dated CARDINAL DATE , the NORP embassy in GPE requested the release of the detained aircraft to GPE , given the latter 's commitment to the sanctions regime

By a letter dated DATE , ORG informed ORG that the maintenance work had in fact already been carried out , that the government regretted the failure to abide by the procedure it had initiated and that the matter had been taken up with ORG . The aircraft was being detained pending the ORG 's decision .

On DATE the NORP government learned of ORG reply to the NORP government and that the chairman of ORG had indicated that it would be likely to favour impounding . ORG would not meet until DATE .

On DATE ORG with GPE ( GPE and GPE ) ) Regulations DATE ( ORG no . CARDINAL of DATE ) were adopted . By a letter dated DATE , the Minister for ORG ) informed the FAC managers that he had authorised the impounding , until further notice , of the aircraft pursuant to that statutory instrument .

Shortly afterwards the applicant company 's second aircraft was grounded in GPE , although the parties disagreed as to precisely why .

By a letter of DATE , ORG informed ORG findings of its meeting of DATE :

“ ... the provision of any services to an aircraft owned by an undertaking in the [ FRY ] , except those specifically authorised in advance by ORG ... , would not be in conformity with the requirements of the relevant ORG resolutions . The members of ORG also recalled the provisions of paragraph CARDINAL of [ Resolution CARDINAL ( DATE ) of ORG ] regarding such aircraft , under which the aircraft in question should have already been impounded by the NORP authorities . ORG , therefore , would be extremely grateful for being apprised of any action on behalf of Your Excellency 's Government to that effect . ”

By a letter dated DATE , ORG informed ORG that the aircraft had been detained on CARDINAL DATE and formally impounded on DATE .

In a letter of DATE to ORG , the applicant company challenged the impoundment , arguing that the purpose of Regulation ( ORG ) no . CARDINAL/CARDINAL was not to deal simply with legal ownership , but rather with operational control . On DATE the ORG replied :

“ The Minister is advised that the intention and effect of the ORG resolution as implemented through [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] is to impose sanctions by impounding the types of commercial asset mentioned in DATE , including aircraft , in any case where a person or undertaking in or operating from the [ FRY ] has any ownership interest of the kind mentioned . As this view of the scope and effect of the original resolution has been confirmed by ORG ] , the Minister does not feel entitled to apply [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] in a manner which would depart from that approach . ... the aircraft must remain impounded . ... the Minister appreciates the difficulty that [ the applicant company ] finds itself in and would be anxious to find any solution that was available to him under [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] which would permit the release of the aircraft . ”

By a letter dated DATE , the NORP embassy in GPE repeated its request for the release of the aircraft , stating that the NORP government would ensure impoundment in accordance with the sanctions . The NORP government indicated to ORG , by a letter of DATE , that it would be favourably disposed to grant that request . On CARDINAL August DATE ORG ruled that the aircraft had to remain in GPE , since the relevant resolutions required ORG to withhold all services from the aircraft , including services that would enable it to fly .

In DATE the applicant company applied for leave to seek judicial review of the Minister 's decision to impound the aircraft . Amended grounds were later lodged taking issue with ORG 's role in the impoundment . On DATE the High Court struck out TEAM as a respondent in the proceedings , the applicant company 's dispute with ORG being a private - law matter .

On DATE the applicant company 's managing director explained in evidence that rental payments due to ORG had been set off against the deposits initially paid to ORG and that future rental payments were to be paid into a blocked bank account supervised by ORG .

On DATE Mr Justice PERSON delivered the judgment of ORG . The issue before him could , he believed , be simply defined as the question of whether ORG was bound by LAW ( ORG ) no . CARDINAL/CARDINAL to impound the applicant company 's aircraft . He considered ORG letter of DATE to the applicant company to be the most helpful explanation of the Minister 's reasoning . He found that :

“ ... it is common case that the transaction between ORG and [ the applicant company ] was entirely bona fide . There is no question of ORG having any interest direct or indirect in [ the applicant company ] or in the management , supervision or direction of the business of that company . ...

It is , however , common case that [ resolutions of ORG ] do not form part of NORP domestic law and , accordingly , would not of themselves justify the Minister in impounding the aircraft . The real significance of the [ resolutions of ORG ] , in so far as they relate to the present proceedings , is that [ Resolution CARDINAL ( DATE ) of ORG ] ... provided the genesis for DATE Regulation ( ORG ) no . CARDINAL/CARDINAL ] . ... ”

In interpreting Regulation ( ORG ) no . CARDINAL , Mr Justice PERSON had regard to its purpose . He found the aircraft not to be one to which Article CARDINAL applied , as it was not an aircraft in which a majority or controlling interest was held by a person or undertaking in or operating from the former NORP , and that the decision of the Minister to impound was therefore ultra vires . However , the aircraft was , at that stage , the subject of an injunction obtained ( in DATE ) by a creditor of ORG ( ORG ) preventing it from leaving the country . That injunction was later discharged on DATE .

Having indicated to the applicant company that the Minister for Transport was investigating a further impoundment based on Article CARDINAL.CARDINAL(e ) of Regulation ( ORG ) no . CARDINAL/CARDINAL , ORG informed the applicant company by a letter of CARDINAL DATE of the following :

“ The Minister has now considered the continuing position of the aircraft in the light of the recent ruling of ORG and the provisions of LAW referred to .

Arising out of the Minister 's consideration , I am now directed to inform you that the Minister has ... directed that the aircraft ... be detained pursuant to LAW ( ORG ) no . CARDINAL/CARDINAL ] as an aircraft which is suspected of having violated the provisions of that regulation and particularly LAW and [ Regulation ( ORG ) no . ] CARDINAL . The aircraft will remain detained pending completion of the Minister 's investigation of the suspected violation as required under LAW [ ( ORG ) no . ] CARDINAL/CARDINAL . ”

Although not noted in that letter , the Minister 's concern related to the applicant company 's setting off of ORG 's financial obligations ( certain insurance , maintenance and other liabilities ) under the lease against the rental monies already paid by it into the blocked bank account .

On DATE ORG adopted Resolution CARDINAL ( DATE ) . Although it temporarily suspended the sanctions as peace negotiations had begun , it did not apply to aircraft already impounded . It was implemented by Regulation ( ORG ) no . CARDINAL on DATE .

In DATE the applicant company was given leave to apply for judicial review of the Minister 's decision to re - impound the aircraft . By a judgment of DATE , the High Court quashed the Minister 's decision to redetain the aircraft . It noted that almost all of the monies which had been paid into the blocked account by the applicant company had by then been used up ( with the consent of the holding bank in GPE ) in order to discharge ORG 's liabilities under the lease . The crucial question before ORG was the Minister 's delay in raising LAW ( ORG ) no . CARDINAL/CARDINAL given that the applicant company was an “ innocent ” party suffering heavy DATE losses . ORG found that the Minister had failed in his duty to investigate and decide such matters within a reasonable period of time , to conduct the investigations in accordance with fair procedures and to have proper regard for the rights of the applicant company .

On DATE the NORP government appealed to ORG and applied for a stay on ORG order . On DATE ORG refused the Minister 's application for a stay . The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party . Noting the significant delay of the Minister in raising Article CARDINAL ) and the potentially minor damage to the ORG ( monies owed for the maintenance and parking in FAC ) compared to the applicant company 's huge losses , the justice of the case was overwhelmingly in the latter 's favour .

The aircraft was therefore free to leave . By letters dated CARDINAL and DATE , the applicant company , ORG and ORG were informed that the Minister considered that he no longer had any legal responsibility for the aircraft .

On DATE the Minister for Transport lodged an appeal in ORG against the High Court judgment of DATE . He took issue with ORG interpretation of Regulation ( ORG ) no . CARDINAL/CARDINAL and requested a preliminary reference to the ECJ ( Article CARDINAL , now Article CARDINAL , of the LAW establishing ORG – “ the LAW ” ) .

By an order dated CARDINAL DATE , ORG referred the following question to the ECJ and adjourned the proceedings before it :

“ Is LAW ( ORG ) no . CARDINAL/CARDINAL ] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [ the FRY ] where such aircraft has been leased by the owner for a term of DATE from DATE to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [ FRY ] ? ”

The parties made submissions to the ECJ . The applicant company noted that it was ironic that , following LAW ( DATE ) of ORG , ORG aircraft could fly whereas its own remained grounded .

On DATE Advocate General PERSON delivered his opinion . Given the majority interest of ORG in the aircraft , LAW ( ORG ) no . CARDINAL/CARDINAL applied to it . The Advocate General disagreed with ORG , considering that neither the aims nor the texts of the relevant resolutions of ORG provided any reason to depart from what he considered to be the clear wording of LAW ( ORG ) no . CARDINAL/CARDINAL .

As to the question of the respect shown in that regulation for fundamental rights and proportionality , the Advocate General pointed out :

“ It is well established that respect for fundamental rights forms part of the general principles of Community law , and that in ensuring respect for such rights , the [ ECJ ] takes account of the constitutional traditions of ORG and of international agreements , notably [ the Convention ] , which has a special significance in that respect .

Article ORG ) of the Treaty on NORP Union ... gives LAW expression to the [ ECJ 's ] case - law . ... In relation to LAW , it confirms and consolidates the [ ECJ 's ] case - law underlining the paramount importance of respect for fundamental rights .

Respect for fundamental rights is thus a condition of the lawfulness of ORG acts – in this case , the ORG . Fundamental rights must also , of course , be respected by Member GPE when they implement Community measures . All Member GPE are in any event parties to the [ Convention ] , even though it does not have the status of domestic law in all of them . Although the ORG itself is not a party to the ORG , and can not become a party without amendment both of the LAW and of the LAW , and although the LAW may not be formally binding upon the ORG , nevertheless for practical purposes the LAW can be regarded as part of Community law and can be invoked as such both in the [ ECJ ] and in national courts where Community law is in issue . That is so particularly where , as in this case , it is the implementation of Community law by Member PERSON which is in issue . Community law can not release Member GPE from their obligations under the LAW . ”

The Advocate General noted that the applicant company had relied on the right to peaceful enjoyment of property , protected by the ORG , and the right to pursue a commercial activity , recognised as a fundamental right by the ECJ . Having considered PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) , he defined the essential question as being whether the interference with the applicant company 's possession of the aircraft was a proportionate measure in the light of the aims of general interest Regulation ( ORG ) no . CARDINAL/CARDINAL sought to achieve . He had regard to the application of this test in ORG v. GPE ( judgment of DATE , Series A no . CARDINAL ) and ORG v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL-A ) and to a “ similar approach ” adopted by the ECJ in cases concerning the right to property or the right to pursue a commercial activity ( including PERSON v. PERSON , Case DATE ] ORG Reports ( ECR ) CARDINAL , § § DATE ) .

While there had been a severe interference with the applicant company 's interest in the lease , it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war . While some property loss was inevitable for any sanctions to be effective , if it were demonstrated that the interference in question was wholly unreasonable in the light of the aims sought to be achieved , then the ECJ would intervene . However , the Advocate General felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable .

Whether or not the financial impact of the sanctions were as outlined by the applicant company , a general measure of the kind in question could not be set aside simply because of the financial consequences the measure might have in a particular case . Given the strength of the public interest involved , the proportionality principle would not be infringed by any such losses .

The Advocate General concluded that the contested decision did not

“ ... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual 's fundamental rights . That conclusion seems consistent with the case - law of [ this ORG ] in general . Nor has [ the applicant company ] suggested that there is any case - law under [ the LAW ] supporting its own conclusion .

The position seems to be no different if CARDINAL refers to the fundamental rights as they result from ' the constitutional traditions common to the Member GPE ' referred to in the case - law of [ the ECJ ] and in Article ORG ) of the Treaty on ORG . In the [ above - cited PERSON case , the ECJ ] pointed out ... , referring specifically to ORG , LAW and LAW , that the constitutional rules and practices of the Member GPE permit the legislature to control the use of private property in accordance with the general interest . Again it has not been suggested that there is any case - law supporting the view that the contested decision infringed fundamental rights . The decision of ORG was based , as we have seen , on different grounds . ”

By a letter of DATE , TEAM informed ORG that the aircraft was free to leave provided that debts owed to ORG were discharged .

On DATE the ECJ ruled that Regulation ( ORG ) no . CARDINAL/CARDINAL applied to the type of aircraft referred to in ORG question to it . The ECJ noted that the domestic proceedings showed that the aircraft lease had been entered into “ in complete good faith ” and was not intended to circumvent the sanctions against the FRY .

It did not accept the applicant company 's first argument that Regulation ( ORG ) no . CARDINAL/CARDINAL did not apply because of the control on a DATE basis of the aircraft by an innocent non - FRY party . Having considered the wording of Regulation ( ORG ) no . CARDINAL/CARDINAL , its context and aims ( including the text and aims of ORG resolutions it implemented ) , it found nothing to support the distinction made by the applicant company . Indeed , the use of DATE operation and control as opposed to ownership as a criterion for applying the regulation would jeopardise the effectiveness of the sanctions .

The applicant company 's second argument was that the application of Regulation ( ORG ) no . CARDINAL/CARDINAL would infringe its right to peaceful enjoyment of its possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by having their bank accounts blocked . The ECJ did not find this persuasive :

“ It is settled case - law that the fundamental rights invoked by [ the applicant company ] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by ORG ( see [ the above - cited PERSON case ] ; Case DATE , ORG v. GPE fuer GPE und Forstwirtschaft [ DATE ] ECR CARDINAL ; and Case C-CARDINAL/CARDINAL , GPE v. Council [ DATE ] ECR I-CARDINAL ) .

Any measure imposing sanctions has , by definition , consequences which affect the right to property and the freedom to pursue a trade or business , thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions .

Moreover , the importance of the aims pursued by the regulation at issue is such as to justify negative consequences , even of a substantial nature , for some operators .

The provisions of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] contribute in particular to the implementation at Community level of the sanctions against the [ FRY ] adopted , and later strengthened , by several resolutions of ORG of ORG . ...

It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance , which is , in particular , in terms of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] and more especially the eighth recital in the preamble thereto , to dissuade the [ FRY ] from ' further violating the integrity and security of GPE and to induce NORP party to cooperate in the restoration of peace in this LOC ' .

As compared with an objective of general interest so fundamental for the international community , which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in GPE , the impounding of the aircraft in question , which is owned by an undertaking based in or operating from the [ FRY ] , can not be regarded as inappropriate or disproportionate . ”

The answer to ORG question was therefore :

“ LAW ( ORG ) no . CARDINAL of DATE concerning trade between ORG and the [ FRY ] applies to an aircraft which is owned by an undertaking based in or operating from the [ FRY ] , even though the owner has leased it for DATE to another undertaking , neither based in nor operating from [ the FRY ] and in which no person or undertaking based in or operating from [ the FRY ] has a majority or controlling interest . ”

On DATE the Minister reinstated the impounding of the aircraft under LAW ( ORG ) no . CARDINAL/CARDINAL .

By a notice of motion dated DATE , the applicant company applied to ORG for , inter alia , an order determining the action “ in the light of the decision of the [ ECJ ] ” and for an order providing for the costs of ORG and ECJ proceedings . The grounding affidavit of the applicant company of the same date stressed its bona fides , the benefit of having had the ECJ examine the regulation for the first time , the fact that ultimate responsibility for its predicament lay with the FRY authorities and that its operations had been destroyed by the impoundment . It referred to Regulation ( ORG ) no . CARDINAL , noting that it did not allow aircraft already impounded to fly whereas those not previously impounded could do so . Since its aircraft was the only CARDINAL impounded under the sanctions regime , no other lessee could have initiated the action it had in order to clarify the meaning of the relevant regulation .

On DATE ORG delivered its judgment allowing the appeal of ORG from the order of ORG of DATE . It noted that the sole issue in the case was whether the Minister had been bound by LAW ( ORG ) no . CARDINAL/CARDINAL to impound the aircraft . Having noted the answer of the ECJ , ORG simply stated that it was bound by that decision and the Minister 's appeal was allowed .

In DATE ORG allowed the appeal from the order of ORG of DATE . Given the intervening rulings of the ECJ and of ORG ( of DATE and DATE , respectively ) , the appeal was moot since , from DATE of the initial order of impoundment , the aircraft had been lawfully detained under LAW ( ORG ) no . CARDINAL/CARDINAL . There was no order as to costs .

NORP The applicant company 's leases on both aircraft had expired by DATE ( see paragraph CARDINAL above ) . Further to the judgment of ORG of DATE ( see paragraph DATE above ) and given the relaxation of the sanctions regime ( see paragraphs CARDINAL - CARDINAL below ) , PERSON and the Minister for Transport reached an agreement in DATE concerning the latter 's costs . ORG deposited CARDINAL,CARDINAL.CARDINAL NORP pounds into a blocked account in the joint names of the Chief State Solicitor and its solicitors to cover all parking , maintenance , insurance and legal costs of the Minister for Transport associated with the impoundment . On DATE the aircraft was returned to ORG .

In DATE ORG ( UNSC ) adopted a LAW ( DATE ) ) under LAW of its LAW by which it expressed concern about the conflict in the former GPE and implemented a weapons and military embargo . UNSC Resolution CARDINAL ( DATE ) , adopted in DATE , established a ORG to administer the relevant resolutions of ORG .

The relevant parts of ORG ( DATE ) , adopted on CARDINAL DATE , provided as follows :

“ CARDINAL . Decides further that no State shall make available to the authorities in the [ FRY ] or to any commercial , industrial or public utility undertaking in the [ FRY ] , any funds , or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to those authorities or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within the [ FRY ] , except payments exclusively for strictly medical or humanitarian purposes and foodstuffs ;

Decides that all GPE shall :

( a ) Deny permission to any aircraft to take off from , land in or overfly their territory if it is destined to land in or has taken off from the territory of the [ FRY ] , unless the particular flight has been approved , for humanitarian or other purposes consistent with the relevant resolutions of the ORG , by the [ ORG ] ;

( b ) Prohibit , by their nationals or from their territory , the provision of engineering or maintenance servicing of aircraft registered in the [ FRY ] or operated by or on behalf of entities in the [ FRY ] or components for such aircraft , the certification of airworthiness for such aircraft , and the payment of new claims against existing insurance contracts and the provision of new direct insurance for such aircraft ;

Decides further that all GPE , and the authorities in the [ FRY ] , shall take the necessary measures to ensure that no claim shall lie at the instance of the authorities in the [ FRY ] , or of any person or body in the [ FRY ] , or of any person claiming through or for the benefit of any such person or body , in connection with any contract or other transaction where its performance was affected by reason of the measures imposed by the present resolution and related resolutions ; ”

The resolution was implemented in ORG by a ORG regulation of DATE ( Regulation ( ORG ) no . CARDINAL ) , which was in turn implemented in GPE by statutory instrument : ORG with ORG and GPE ) Regulations DATE ( ORG no . CARDINAL of DATE ) made it an offence under NORP law from DATE to act in breach of Regulation ( ORG ) no . CARDINAL .

UNSC Resolution CARDINAL ( DATE ) , adopted in DATE , further tightened the economic sanctions against the FRY . This resolution was implemented by Regulation ( ORG ) no . CARDINAL , adopted in DATE .

UNSC Resolution CARDINAL ( DATE ) , adopted on DATE , provided , inter alia , as follows :

“ CARDINAL . Decides that all GPE shall impound all vessels , freight vehicles , rolling stock and aircraft in their territories in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] and that these vessels , freight vehicles , rolling stock and aircraft may be forfeit to the seizing ORG upon a determination that they have been in violation of resolutions CARDINAL ( DATE ) , CARDINAL ( DATE ) , CARDINAL ( DATE ) or the present resolution ; ”

This resolution was implemented by Regulation ( ORG ) no . CARDINAL/CARDINAL , which came into force on DATE , once published in ORG ) of DATE ( as specified in LAW ) pursuant to LAW ( now LAW establishing ORG ( “ the LAW ” ) .

Articles CARDINAL.CARDINAL(e ) and CARDINAL of that regulation provided as follows :

“ CARDINAL . As from DATE , the following shall be prohibited :

( e ) the provision of non - financial services to any person or body for purposes of any business carried out in GPE and GPE . ”

“ All vessels , freight vehicles , rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the [ FRY ] shall be impounded by the competent authorities of the Member GPE .

Expenses of impounding vessels , freight vehicles , rolling stock and aircraft may be charged to their owners . ”

“ All vessels , freight vehicles , rolling stock , aircraft and cargoes suspected of having violated , or being in violation of Regulation ( ORG ) no . CARDINAL or this Regulation shall be detained by the competent authorities of the Member GPE pending investigations . ”

“ Each Member ORG shall determine the sanctions to be imposed where the provisions of this [ Regulation ] are infringed .

Where it has been ascertained that vessels , freight vehicles , rolling stock , aircraft and cargoes have violated this Regulation , they may be forfeited to the Member ORG whose competent authorities have impounded or detained them . ”

On DATE the NORP Minister for ORG adopted ORG with GPE ( GPE and GPE ) ) Regulations DATE ( ORG no . CARDINAL of DATE ) , the relevant part of which provided as follows :

“ CARDINAL . A person shall not contravene a provision of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] .

A person who , on or after DATE , contravenes LAW of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £ MONEY or to imprisonment for a term not exceeding DATE or to both .

NORP The Minister for Transport , Energy and Communications shall be the competent authority for the purpose of LAW and CARDINAL of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] except in so far as the said LAW relates to vessels and the said LAW relates to cargoes .

( CARDINAL ) The powers conferred on the Minister for Transport , Energy and Communications by ORG CARDINAL and CARDINAL of [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] as the competent authority for the purposes of those ORG may be exercised by –

( a ) NORP members of ORG ,

( b ) officers of customs and excise ,

( c ) FAC of ORG , ...

( d ) Officers of the Minister for Transport ... duly authorised in writing by the Minister for Transport , Energy and Communications in that behalf .

( CARDINAL ) A person shall not obstruct or interfere with a person specified in sub - paragraph ( a ) , ( b ) or ( c ) of paragraph ( CARDINAL ) of this Regulation , or a person authorised as aforesaid , in the exercise by him of any power aforesaid .

( CARDINAL ) A person who , on or after DATE , contravenes sub - paragraph ( CARDINAL ) of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £ MONEY or to imprisonment for a term not exceeding DATE or to both .

Where an offence under LAW or CARDINAL of these ORG is committed by a body corporate and is proved to have been so committed with the consent , connivance or approval of or to have been attributable to any neglect on the part of any person , being a director , manager , secretary or other officer of the body corporate or a person who was purporting to act in any such capacity , that person as well as the body corporate , shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first - mentioned offence . ”

UNSC Resolution CARDINAL ( DATE ) , adopted on DATE , provided , inter alia , as follows :

“ ( i ) the restrictions imposed by paragraph CARDINAL of LAW ( DATE ) , paragraph CARDINAL of Resolution CARDINAL ( DATE ) with regard to aircraft which are not impounded at the date of adoption of this ORG , ...

shall be suspended for an initial period of DATE from DATE following the receipt ... of a report from the Secretary - General ... ”

This resolution was implemented by Regulation ( ORG ) no . CARDINAL of DATE , LAW which suspended the operation of LAW ( ORG ) no . CARDINAL/CARDINAL “ with regard to aircraft ... which had not been impounded at DATE ” .

DATE . The suspension of ORG ) was extended further by periods of DATE on numerous occasions in DATE , and these resolutions were each implemented by Community regulations .

UNSC Resolution CARDINAL ( DATE ) was suspended indefinitely in DATE by LAW ( DATE ) . It was implemented in ORG ( ORG ) no . CARDINAL of CARDINAL DATE which provided , inter alia , as follows :

“ CARDINAL . [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] is hereby suspended with regard to the [ FRY ] .

NORP As long as [ Regulation ( ORG ) no . CARDINAL/CARDINAL ] remains suspended , all assets previously impounded pursuant to that ORG may be released by Member GPE in accordance with the law , provided that any such assets that are subject to any claims , liens , judgments , or encumbrances , or which are the assets of any person , partnership , corporation or other entity found or deemed to be insolvent under the law or the accounting principles prevailing in the relevant Member ORG , shall remain impounded until released in accordance with the applicable law . ”

UNSC Resolution CARDINAL ( DATE ) was later definitively suspended . That suspension was implemented by Regulation ( ORG ) no . CARDINAL of DATE , the relevant part of which provided as follows :

“ As long as the Regulations [ inter alia , Regulation ( ORG ) no . CARDINAL/CARDINAL ] remain suspended , all funds and assets previously frozen or impounded pursuant to those ORG may be released by Member LAW in accordance with law , provided that any such funds or assets that are subject to any claims , liens , judgments or encumbrances , ... shall remain frozen or impounded until released in accordance with the applicable law . ”

On DATE Regulation ( ORG ) no . CARDINAL/CARDINAL repealed , inter alia , Regulation ( ORG ) no . CARDINAL/CARDINAL . On DATE ORG concerning GPE ( GPE and GPE ) and Certain Areas of GPE and GPE ) Regulations CARDINAL ( ORG no . DATE ) repealed ORG no . CARDINAL of DATE .

This judgment is concerned with the provisions of Community law of the “ first pillar ” of ORG .

While the founding treaties of ORG did not contain express provisions for the protection of human rights , the ECJ held as early as DATE that fundamental rights were enshrined in the general principles of Community law protected by the ECJ . By DATE the ECJ had confirmed that , in protecting such rights , it was inspired by the constitutional traditions of the member ORG and by the guidelines supplied by international human rights treaties on which the member GPE had collaborated or to which they were signatories . The ORG 's provisions were first explicitly referred to in DATE , and by DATE its special significance amongst international treaties on the protection of human rights had been recognised by the ECJ . Thereafter the ECJ began to refer extensively to LAW provisions ( sometimes where the Community legislation under its consideration had referred to the LAW ) and latterly to this ORG 's jurisprudence , the more recent ECJ judgments not prefacing such Convention references with an explanation of their relevance to Community law .

In a judgment of DATE , the ECJ was able to describe the role of ORG law in the following terms :

“ CARDINAL . ... as the ORG has consistently held , fundamental rights form an integral part of the general principles of law , the observance of which it ensures . For that purpose the ORG draws inspiration from the constitutional traditions common to the Member GPE and from the guidelines supplied by international treaties for the protection of human rights on which the Member GPE have collaborated or of which they are signatories ... LAW ] has special significance in that respect ... It follows that ... the ORG can not accept measures which are incompatible with observance of the human rights thus recognised and guaranteed .

As the ORG has held ... it has no power to examine the compatibility with the [ Convention ] of national rules which do not fall within the scope of Community law . On the other hand , where such rules do fall within the scope of Community law , and reference is made to ORG for a preliminary ruling , it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the ORG ensures and which derive in particular from the [ Convention ] . ”

NORP This statement has often been repeated by the ECJ , as , notably , in its opinion on accession by ORG , in which it opined , in particular , that respect for human rights was “ a condition of the lawfulness of ORG acts ” .

DATE . In Kondova , relied on by the applicant company , the ECJ ruled on the refusal by GPE of an establishment request of a NORP national on the basis of a provision in an association agreement between ORG and GPE :

“ ... Moreover , such measures [ of the NORP immigration authorities ] must be adopted without prejudice to the obligation to respect that national 's fundamental rights , such as the right to respect for his family life and the right to respect for his property , which follow , for the Member ORG concerned , from LAW DATE or from other international instruments to which that ORG may have acceded . ”

The case - law developments noted above were reflected in certain treaty amendments . In the preamble to LAW of DATE , the Contracting Parties expressed their determination

“ to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member GPE , in the Convention for the Protection of Human Rights and Fundamental Freedoms ... ” .

DATE ( formerly LAW of DATE reads as follows :

“ CARDINAL . The Union is founded on the principles of liberty , democracy , respect for human rights and fundamental freedoms , and the rule of law , principles which are common to the Member GPE .

NORP The Union shall respect fundamental rights , as guaranteed by LAW signed in GPE on CARDINAL DATE and as they result from the constitutional traditions common to ORG , as general principles of Community law .

The Union shall respect the national identities of its Member GPE .

The Union shall provide itself with the means necessary to attain its objectives and carry through its policies . ”

The Treaty of GPE of DATE required the ECJ , in so far as it had jurisdiction , to apply human rights standards to acts of Community institutions and gave ORG the power to act against a member ORG that had seriously and persistently violated the principles of Article CARDINAL(CARDINAL ) of the LAW , cited above .

The Charter of Fundamental Rights of ORG , proclaimed in GPE on DATE ( not fully binding ) , states in its preamble that it

“ reaffirms , with due regard for the powers and tasks of the Community and the ORG and the principle of subsidiarity , the rights as they result , in particular , from the constitutional traditions and international obligations common to GPE , LAW , ORG , LAW , ORG adopted by the ORG and by ORG and the case - law of ORG of ORG and of ORG .

LAW provides :

“ In so far as this LAW contains rights which correspond to rights guaranteed by ORG , the meaning and scope of those rights shall be the same as those laid down by LAW . This provision shall not prevent Union law providing more extensive protection . ”

The LAW establishing a LAW for LOC , signed on DATE ( not in force ) , provides in its Article I-CARDINAL entitled “ LAW ” :

“ CARDINAL . The Union shall recognise the rights , freedoms and principles set out in FAC which constitutes Part II .

NORP The Union shall accede to LAW . Such accession shall not affect the ORG 's competences as defined in the LAW .

Fundamental rights , as guaranteed by LAW and as they result from the constitutional traditions common to LAW , shall constitute general principles of the ORG 's law . ”

The Charter of Fundamental Rights cited above has been incorporated as Part II of this constitutional treaty .

DATE LAW ) provides :

“ Member GPE shall take all appropriate measures , whether general or particular , to ensure fulfilment of the obligations arising out of this LAW or resulting from action taken by the institutions of the Community . They shall facilitate the achievement of the ORG 's tasks .

They shall abstain from any measure which could jeopardise the attainment of the objectives of LAW . ”

The relevant part of LAW now LAW as follows :

“ A regulation shall have general application . It shall be binding in its entirety and directly applicable in all Member GPE . ... ”

The description of a regulation as being “ binding in its entirety ” and “ directly applicable ” in all member GPE means that it takes effect in the internal legal orders of member GPE without the need for domestic implementation .

Article CARDINAL ( now Article CARDINAL ) reads as follows :

“ The rights and obligations arising from agreements concluded before DATE or , for acceding GPE , before the date of their accession , CARDINAL hand , and CARDINAL countries on the other , shall not be affected by the provisions of this Treaty .

To the extent that such agreements are not compatible with LAW , the Member ORG or GPE concerned shall take all appropriate steps to eliminate the incompatibilities established . Member GPE shall , where necessary , assist each other to this end and shall , where appropriate , adopt a common attitude .

In applying the agreements referred to in the first paragraph , Member GPE shall take into account the fact that the advantages accorded under LAW by each Member ORG form an integral part of the establishment of the ORG and are thereby inseparably linked with the creation of common institutions , the conferring of powers upon them and the granting of the same advantages by all the other Member GPE . ”

As regards the control exercised by the ECJ and national courts , the ECJ has stated as follows :

“ DATE . Individuals are ... entitled to effective judicial protection of the rights they derive from the ORG legal order , and the right to such protection is CARDINAL of the general principles of law stemming from the constitutional traditions common to GPE . That right has also been enshrined in LAW and CARDINAL of LAW ...

By LAW and LAW now LAW , on the one hand , and by LAW , on the other , LAW has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions , and has entrusted such review to ORG ... Under that system , where natural or legal persons can not , by reason of the conditions for admissibility laid down in the fourth paragraph of LAW , directly challenge Community measures of general application , they are able , depending on the case , either indirectly to plead the invalidity of such acts before ORG under LAW or to do so before the national courts and ask them , since they have no jurisdiction themselves to declare those measures invalid ... , to make a reference to ORG for a preliminary ruling on validity .

Thus it is for the Member GPE to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection .

In that context , in accordance with the principle of sincere cooperation laid down in LAW , national courts are required , so far as possible , to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application , by pleading the invalidity of such an act . ”

Article CARDINAL ( now LAW , ORG , ORG with a right to apply to the ECJ for judicial review of a Community act ( “ annulment action ” ) . Applications from ORG and ORG are more restricted and , while subject to even greater restrictions , an individual ( a natural or legal person ) can also challenge “ a decision addressed to that person or ... a decision which , although in the form of a regulation or a decision addressed to another person , is of direct and individual concern to the former ” ( Article CARDINAL(CARDINAL ) , now Article CARDINAL(CARDINAL ) ) .

According to LAW now LAW member PERSON and the Community institutions can also call , among others , ORG and ORG to account before the ECJ for a failure to perform their LAW obligations . LAW now LAW allows a plea of illegality of a regulation ( adopted jointly by ORG and the ORG , by the ORG , by the ORG or by ORG ) to be made during proceedings already pending before the ECJ on the basis of another Article : a successful challenge will result in the ECJ declaring its inapplicability inter partes , but not the annulment of the relevant provision .

Having legal personality of its own , ORG can be sued for damages in tort , described as its non - contractual liability . Its institutions will be considered liable for wrongful ( illegal or invalid ) acts or omissions by the institution ( fautes de service ) or its servants ( fautes personnelles ) which have caused damage to the claimant ( Articles CARDINAL and CARDINAL , now Articles CARDINAL and FAC ) . Unlike actions under Articles CARDINAL , CARDINAL and CARDINAL ( now ORG , CARDINAL and CARDINAL ) , and subject to the various inherent limitations imposed by the elements of the action to be established , there are no personal or locus standi limitations on the right to bring such an action . It can therefore provide an independent cause of action before the ECJ to review the legality of an act or failure to act to those ( including individuals ) who do not have locus standi under ORG CARDINAL or CARDINAL but who have suffered damage .

Under LAW ( now LAW now LAW ) , both the Commission ( in fulfilment of its role as “ guardian of the Treaties ” ) and a member ORG are accorded , notably , the right to take proceedings against a member ORG considered to have failed to fulfil its LAW obligations . If the ECJ finds that a member ORG has so failed , the ORG shall be required to take the necessary measures to comply with the judgment of the ECJ ( Article CARDINAL , now Article CARDINAL ) . The ORG can also take proceedings against a member ORG in other specific areas of ORG regulation ( such as ORG aids – Article CARDINAL , now LAW ) .

There is no provision in LAW for a direct action before the ECJ against individuals . Individuals may , however , be fined under certain provisions of Community law ; such fines may , in turn , be challenged before the ECJ .

Where individuals seek to assert their Community rights before national courts or tribunals , they may do so in the context of any proceedings of national law , public or private , in which Community rights are relevant , in pursuit of any remedy , final or interim , under national law .

The “ direct effect ” of a provision of Community law means that it confers upon individuals rights and obligations they can rely on before the national courts . A provision with direct effect must not only be applied by the domestic courts , but it will take precedence over conflicting domestic law pursuant to the principle of supremacy of Community law . The conditions for acquiring direct effect are that the provision

“ contains a clear and unconditional prohibition which is not a positive but a negative obligation . This obligation , moreover , is not qualified by any reservation on the part of the GPE which would make its implementation conditional upon a positive legislative measure enacted under national law . The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between ORG and their subjects ” .

Certain EC Treaty provisions are considered to have direct effect , whether they impose a negative or positive obligation and certain have been found to have , as well as “ vertical ” effect ( between the ORG and the individual ) , a horizontal effect ( between individuals ) . Given the text of LAW ( now LAW , the provisions of regulations are normally considered to have direct effect , both vertically and horizontally . Directives and decisions can , in certain circumstances , have vertical direct effect , though recommendations and opinions , having no binding force , can not generally be relied on by individuals before national courts .

The rights an individual may claim under Community law are no longer confined to those under directly effective Community provisions : they now include rights based on the principles of indirect effect and ORG liability developed by the ECJ . According to the principle of “ indirect effect ” ( “ interprétation conforme ” ) , a member ORG 's obligations under LAW now LAW ) require its authorities ( including the judiciary ) to interpret as far as possible national legislation in the light of the wording and purpose of the relevant directive .

The principle of ORG liability was first developed in PERSON . The ECJ found that , where a ORG had failed to implement a directive ( whether or not directly effective ) , it would be obliged to compensate individuals for resulting damage if CARDINAL conditions were met : the directive conferred a right on individuals ; the content of the right was clear from the provisions of the directive itself ; and there was a causal link between the ORG 's failure to fulfil its obligation and the damage suffered by the person affected . In DATE the ECJ extended the notion of ORG liability to all domestic acts and omissions ( legislative , executive and judicial ) in breach of Community law provided the conditions for liability were fulfilled .

In order to assist national courts in correctly implementing Community law and maintaining its uniform application , LAW now LAW ) provides national courts with the opportunity to consult the ECJ . In particular , Article CARDINAL reads as follows :

“ ORG shall have jurisdiction to give preliminary rulings concerning :

( a ) the interpretation of this LAW ;

( b ) the validity and interpretation of acts of the institutions of the Community ... ;

Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .

Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”

The ECJ described the nature of this preliminary reference procedure as follows :

“ CARDINAL . ... the procedure provided for by LAW ORG is an instrument of cooperation between ORG and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate ...

In the context of that cooperation , it is for the national court seisple , bound to give a ruling ... ”

Article CARDINAL distinguishes between domestic courts which have a discretion to refer and those courts of last instance for which referral is mandatory . However , according to the ORG judgment , both categories of court must first determine whether an ECJ ruling on the Community law matter is “ necessary to enable it to give judgment ” , even if the literal meaning of Article CARDINAL would suggest otherwise :

“ It follows from the relationship between the second and the third paragraphs of Article CARDINAL that the courts ... referred to in the third paragraph have the same discretion as any other national court ... to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment . ”

In ORG the ECJ indicated that a court of final instance would not be obliged to make a reference to the ECJ if : the question of Community law was not relevant ( namely , if the answer to the question of Community law , regardless of what it may be , could in no way affect the outcome of the case ) ; the provision had already been interpreted by the ECJ , even though the questions in issue were not strictly identical ; and the correct application of Community law was so obvious as to leave no scope for reasonable doubt , not only to the national court but also to the courts of the other member PERSON and to the ECJ . This matter was to be assessed in the light of the specific characteristics of Community law , the particular difficulties to which its interpretation gave rise and the risk of divergences in judicial decisions within the Community .

Once the reference is made , the ECJ will rule on the question put to it and that ruling is binding on the national court . The ECJ has no power to decide the issue before the national court and can not therefore apply the provision of Community law to the facts of the particular case in question . The domestic court will decide on the appropriate remedy .

DATE , entitled “ General rule of interpretation ” , provides that a treaty shall be interpreted “ in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose ” . LAW further provides that , as well as the context , any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation together with any relevant rules of international law applicable in the relations between the parties shall be taken into account .

The relevant part of LAW reads as follows :

“ CARDINAL . Ireland affirms its devotion to the ideal of peace and friendly co - operation amongst nations founded on international justice and morality .

Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other GPE .

CARDINAL ...

CARDINAL No provision of this LAW invalidates laws enacted , acts done or measures adopted by the ORG which are necessitated by the obligations of membership of ORG or of the Communities , or prevents laws enacted , acts done or measures adopted by ORG or by the ORG or by institutions thereof , or by bodies competent under the Treaties establishing the ORG , from having the force of law in the ORG . ”