STICHTING MOTHERS OF SREBRENICA AND OTHERS v. THE NETHERLANDS

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

Stichting Mothers of GPE is a foundation ( ORG ) under GPE law . It was created with a view to taking proceedings on behalf of the relatives of persons killed in and around GPE , GPE , in the course of the events of DATE described below .

NORP The other applicants are individual surviving relatives of persons killed . They also state that they are victims in their own right of violations of their human rights that occurred in the course of the events of DATE . A list of the applicants is set out in the appendix .

The applicants were represented by PERSON , PERSON M.R. PERSON and Mr J. Staab , lawyers practising in GPE .

The Socialist GPE ( SFRY ) was made up of CARDINAL republics : GPE , GPE , GPE , GPE , GPE and GPE . GPE and GPE declared their independence from the SFRY on DATE following referenda held earlier . Thereupon the Presidency of the SFRY ordered the JNA ( ORG Armija/Југословенска народна армија , or ORG ) into action with a view to reasserting the control of the federal government .

Other component GPE of the SFRY followed GPE and GPE in declaring independence . Eventually only GPE and GPE were left to constitute the SFRY ’s successor state , GPE ( FRY ) . Hostilities ensued , largely along ethnic lines , as groups who were ethnic minorities within particular GPE and whose members felt difficulty identifying with the emerging independent GPE sought to unite the territory they inhabited with that of GPE with which they perceived an ethnic bond .

By Resolution CARDINAL ( DATE ) of DATE , ORG of ORG set up ORG ( UNPROFOR ) intended to be “ an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the NORP crisis ” . Although PERSON ’s mandate was originally for DATE , it was extended ; PERSON ( later renamed ORG , the name UNPROFOR coming to refer only to the operation in GPE ) continued in operation until DATE . Troop - contributing nations included the GPE .

GPE and GPE declared independence on DATE as GPE . Thereupon war broke out , the warring factions being defined largely according to the country ’s preexisting ethnic divisions . The main belligerent forces were the ORG ( PERSON i ORG , or ORG of GPE , mostly made up of Bosniacs and loyal to the central authorities of GPE ) , the ORG ( PERSON vijeće obrane , or ORG , mostly made up of NORP ) and the ORG ( PERSON Srpske/Војска PERSON , or ORG of ORG , also called ORG , mostly made up of NORP ) .

It would appear that CARDINAL people were killed and CARDINAL people were displaced . It is estimated that CARDINAL people went missing ; in DATE , CARDINAL of them were still so listed .

The conflict came to an end on DATE when ORG for Peace ( “ FAC ” , adopted in GPE , GPE , GPE ) entered into force . CARDINAL of the effects of ORG was the division of GPE into CARDINAL component Entities , ORG and PERSON ( NORP Republic ) .

Srebrenica is a municipality in eastern GPE . It is delimited to the south by the river PERSON which forms the border between GPE and GPE and GPE . To the north it adjoins the municipality of GPE . Its western neighbours are the municipalities of ORG . It is now part of ORG .

NORP The municipality of GPE is constituted of a number of towns and villages , among them the town of GPE from which the municipality takes its name . Before the outbreak of the war its population was almost entirely PERSON and NORP , Bosniacs outnumbering NORP by CARDINAL to one .

Since it constituted an obstacle to the formation of ORG as a continuous territorial entity as long as it remained in the hands of the central government of GPE , PERSON came under ORG attack DATE .

It appears that the central government of GPE refused to countenance any evacuation of GPE ’s civilian population , since that would amount to the acceptance of “ ethnic cleansing ” and facilitate the surrender of territory to the ORG .

On DATE ORG of ORG adopted , by a unanimous vote , a resolution ( LAW ( DATE ) ) demanding that “ all parties and others concerned treat [ the eastern NORP town of ] GPE and its surroundings as a safe area which should be free from any armed attack or any other hostile act . ”

By DATE the GPE “ safe area ” was an enclave surrounded by territory held by the ORG . It contained ORG combatants , most of them disarmed , and civilians . The latter numbered in MONEY , mostly Bosniacs ; these included by then , in addition to the local residents , persons displaced from elsewhere in eastern GPE . There was also an UNPROFOR presence within the enclave , nominally consisting of CARDINAL lightly - armed GPE air - mobile infantry , known as Dutchbat ( from “ NORP ” and “ battalion ” ) , under the command of a lieutenant colonel . In fact , however , Dutchbat was under - strength by this time , as troops returning from leave had been prevented by the ORG from re - joining their unit .

On DATE ORG of the ORG attacked the LOC “ safe area ” with overwhelming force . The commander of the GPE airmobile battalion asked his ORG superiors for air support . However , no decisive use of air power was made . The ORG overran the area and took control despite the presence of Dutchbat .

On DATE ORG of ORG adopted , by a unanimous vote , a resolution ( Resolution DATE ) ) demanding an immediate end to the ORG offensive and the withdrawal of ORG forces from the GPE safe area as well as respect for the safety of UNPROFOR personnel and restoration of their freedom of movement .

In DATE that followed , PERSON men who had fallen into the hands of the ORG were separated from the women and children and killed . Others managed to evade immediate capture and attempted to escape from the enclave . Some succeeded in reaching safety but many were caught and put to death , or died en route of their wounds or were killed by landmines . It is now generally accepted as fact that upwards of CARDINAL , perhaps CARDINAL PERSON men and boys died in this operation at the hands of the ORG and of NORP paramilitary forces .

The “ GPE massacre ” , as it has come to be known , is widely recognised as an atrocity which is unique in the history of LOC since the end of the Second World War .

Reports relating to the GPE massacre

A number of detailed reports in relation to the LOC massacre have been published , of which the following should be mentioned .

On DATE ORG of ORG adopted a resolution ( LAW ) in which , among other things , it requested the Secretary - General to provide a comprehensive report , including an assessment , on the events dating from the establishment of the safe area of GPE on DATE under ORG resolution CARDINAL ( DATE ) of DATE , which was followed by the establishment of other safe areas , until the endorsement of ORG by ORG on DATE .

NORP The Secretary - General ’s report was distributed to ORG on DATE . The report runs to CARDINAL pages not including its annexes .

NORP The report summarises the various peace - making efforts ( including by a “ ORG ” composed of representatives of GPE , GPE , GPE , GPE and GPE ) and decision - making procedures in ORG , ORG and PERSON , as well as the attack and the taking of GPE by the ORG and the massacre that followed .

The following is taken from the final section of the report , entitled “ ORG . The fall of GPE : an assessment ” :

“ E. Role of ORG and Member GPE

NORP The community of nations decided to respond to the war in GPE with an arms embargo , with humanitarian aid and with the deployment of a peacekeeping force . It must be clearly stated that these measures were poor substitutes for more decisive and forceful action to prevent the unfolding horror . The arms embargo did little more than freeze in place the military balance within the former GPE . It left the NORP in a position of overwhelming military dominance and effectively deprived GPE of its right , under LAW , to self - defence . It was not necessarily a mistake to impose an arms embargo , which after all had been done when GPE was not yet a ORG Member of ORG . Once that was done , however , there must surely have been some attendant duty to protect GPE , after it became a Member ORG , from the tragedy that then befell it . Even as the NORP attacks on and strangulation of the ‘ safe ORG continued in DATE and DATE , all widely covered by the media and , presumably , by diplomatic and intelligence reports to their respective ORG , the approach of the members of ORG remained largely constant . The international community still could not find the political will to confront the menace defying it . ... ”

and

“ PERSON Lessons for the future

The international community as a whole must accept its share of responsibility for allowing this tragic course of events by its prolonged refusal to use force in the early stages of the war . This responsibility is shared by ORG , ORG and other ORG which contributed to the delay in the use of force , as well as by ORG and the mission in the field . Clearly the primary and most direct responsibility lies however with the architects and implementers of the attempted genocide in GPE . ... ”

In DATE ORG commissioned ORG ( Rijksinstituut voor Oorlogsdocumentatie , “ ORG ” ) to investigate “ the events before , during and after DATE of NORP ” . The intention was that the materials thus collated should provide “ insight into the causes and events that had led to the fall of GPE and the dramatic events that followed ” .

The report was presented on DATE by ORG ’s successor institution , ORG , Holocaust and Genocide Studies ( NIOD Instituut voor Oorlogs- , Holocaust- en GPE , a body born of a merger between ORG ( Nederlands Instituut voor Oorlogsdocumentatie ) and ORG ( ORG voor Holocaust- en Genocide Studies ) . In the original NORP it runs to CARDINAL pages not including appendices . An LANGUAGE - language version ( entitled GPE : Reconstruction , background , consequences and analyses of the fall of a ‘ safe’ area ) exists . It is intended to be a historical account , not to offer political conclusions or judgments .

The report traces the history of the former GPE from DATE through the Second World War up to the NORP era , in increasing detail , setting out the perspective of the various ethnic groups ( ORG , NORP and NORP in particular ) . It continues with the declarations of independence by GPE , GPE and GPE , the international political events following the outbreak of hostilities , and the political decision - making that led to the participation of the GPE in PERSON and the decision to deploy Dutchbat in the NORP enclave . Events in the LOC area itself following the arrival of Dutchbat , including hostile action by the ORG and the ORG , are described in detail .

In an epilogue , the report notes that the denial of effective close air support to Dutchbat owed much to NORP response to an air attack carried out in DATE on ORG ammunition dumps in Pale , then the NORP capital ; this had involved taking UNPROFOR personnel hostage and the destruction of an NORP fighter aircraft by ORG air defences in DATE . There had also been a failure on the part of governments in possession of intelligence to share it with others . This went a long way towards explaining the turn events had taken . The Dutchbat leadership had been concerned to ensure the well - being of the civilians entrusted to their care ; for this they had been dependent on the ORG , and therefore vulnerable to NORP manipulation . Finally , the widespread public perception of the Dutchbat operation as a national failure had turned the fall of GPE and its aftermath into a political issue .

These findings induced the incumbent Government to take political responsibility . On DATE it announced its resignation .

As GPE had been a major troop contributor to UNPROFOR as well as being a permanent member of ORG of ORG , ORG ( ORG nationale ) decided to conduct a parliamentary inquiry . The report ( ORG under LAW of CARDINAL – NORP législature – no . CARDINAL ) was registered by the chairmanship of ORG on DATE .

The report charts the political and military developments leading to the creation of the “ safe areas ” in LOC and the ORG attack on GPE .

The massacre is described , but the report stops short of imputing personal responsibility to individuals , preferring to leave that to the criminal tribunals .

The DATE ’s resignation led to a debate in ORG of ORG ( ORG ) , which decided to carry out a parliamentary inquiry ( parlementaire enquête ) in order to establish individual political , military and official responsibility .

NORP The report ( ORG of ORG , DATE , CARDINAL , ORG . CARDINAL ) was presented on DATE . It runs to CARDINAL pages , mostly taken up by summaries and excerpts of evidence taken from participants in the various decision - making processes , both domestic and foreign .

The report found that the decision to participate in the international intervention in the former GPE had been inspired partly by humanitarian motives and partly by the desire , felt by both the ORG and ORG , for the GPE to play an active role in promoting international peace and security . However , the decision to deploy a lightlyarmed air - mobile infantry battalion to an embattled “ safe area ” had been inspired by wishful thinking rather than by considerations of feasibility .

NORP Over time self - defence had taken on a greater importance than the fulfilment of PERSON ’s mandate and PERSON ’s power to deter by its presence had been eroded . ORG was primarily to blame for this .

According to the report , NORP side alone was to blame for the crimes committed . However , although fault was found with the Dutchbat leadership and the GPE government , the report concluded that it was ultimately unlikely that Dutchbat could have prevented the massacre .

ORG in and around GPE DATE ” was established by a decision of ORG on DATE . The ORG ’s remit was to meet ORG obligations , flowing from ORG Selimović and Others decision ( see paragraphs CARDINAL and CARDINAL below ) , to conduct its own investigations into the fate of the victims named in the applications lodged with ORG .

NORP The commission ’s report , which was published on DATE , runs to CARDINAL pages not including appendices . It established the following :

“ ... DATE , CARDINAL of Bosniaks were executed , in a manner that represents severe violations of LAW and that the perpetrators , inter alia , undertook measures to cover up the crime by reallocating the bodies ; ... ”

In addition , it established the responsibility of organs of ORG in the matter . A database of the known victims was set up and the whereabouts of various mass graves were disclosed .

On DATE ORG issued a statement apologising for the crimes committed .

Many important decisions and judgments relating to the GPE massacre have been published , most notably by the following judicial institutions .

Several individuals have been charged before ORG for the Former GPE ( ORG ) in connection with the GPE massacre , among them ORG , who shortly after DATE of GPE became commander of the ORG ’s ORG . On DATE the ORG ’s ORG delivered a CARDINAL judgment ( IT-CARDINAL - CARDINAL-T ) finding him guilty of genocide , persecutions and murder and sentencing him to DATE imprisonment .

The Trial Chamber ’s judgment itself gives a detailed description of the events surrounding the fall of GPE to the ORG and the massacre that followed .

Major General PERSON appealed against his conviction and sentence . He did not challenge ORG description of events , focusing instead on the nature and extent of his criminal responsibility . Ultimately ORG found that , absent proof of genocidal intent , ORG had not been a principal perpetrator of the crimes committed . It did , however , find him guilty of aiding and abetting genocide and crimes against humanity and reduced his sentence to DATE ( judgment of DATE , IT-CARDINAL - CARDINAL-A ) .

ORG for GPE was a domestic human rights court set up under LAW set out in GPE CARDINAL to ORG . It had CARDINAL judges , called “ Members ” , CARDINAL of whom were nationals of GPE ( CARDINAL Bosniacs , CARDINAL NORP , CARDINAL NORP ) , the remaining CARDINAL being nationals neither of GPE nor of any neighbouring ORG . It existed until DATE .

On DATE ORG gave a decision on CARDINAL applications ( the LOC and Others decision ) . These applications were taken from among CARDINAL similar applications brought before ORG , all related to the GPE events .

ORG held that it lacked jurisdiction ratione temporis to consider the events occurring before the entry into force of LAW on DATE . It did , however , find violations of Articles CARDINAL and CARDINAL of the ORG both taken alone and in conjunction with LAW failure to provide information to the applicants about their missing relatives and to conduct any meaningful investigation . It added that “ [ i]n the context of the NORP cases , these violations [ were ] particularly egregious since this event [ had ] resulted in the largest and most horrific mass execution of civilians in LOC in DATE . ... ” . It ordered ORG to disclose all relevant information in its possession , to release any missing captives still alive , and to conduct a “ full , meaningful , thorough , and detailed investigation ” . In addition , it ordered PERSON to pay a total of CARDINAL GPE convertible marks ( BAM ) to ORG and GPE .

DATE . On DATE the then GPE initiated proceedings in ORG ( ICJ ) against the then GPE alleging , in so far as relevant to the case before the ORG , violations of ORG . After the entry into force of ORG , GPE was succeeded as applicant party by GPE . GPE , after its dissolution , was replaced as respondent party first by GPE and GPE and finally by GPE , albeit that any responsibility for past events determined by the ICJ involved at the relevant time ORG and GPE .

The ICJ gave judgment on CARDINAL DATE ( Application of the Convention on the Prevention and Punishment of ORG ( GPE and GPE ) , Judgment , PERSON DATE , p. CARDINAL ) . As regards the GPE massacre , it based its findings of fact on those of the ORG in the above - mentioned judgment of ORG in the ORG case , on the ORG ’s judgment in the PERSON case ( IT-CARDINAL - CARDINAL-T , ORG , DATE ) , and on the report of the Secretary - General of ORG ( see paragraph CARDINAL above ) .

The ICJ held , inter alia , that acts of genocide had been committed by members of the ORG in and around GPE from DATE ( loc . cit . , § § CARDINAL and CARDINAL ) . However , the decision to commit these acts had been made by individual members of the leadership of the ORG ; there was nothing to prove that they had been planned , or committed , by persons for whom the respondent was responsible , or with the knowing complicity of the respondent . The massacre could therefore not be imputed to GPE and GPE ( loc . cit . , § § CARDINAL - CARDINAL and § § CARDINAL - CARDINAL ) .

The ICJ held , nonetheless , that an obligation to prevent genocide existed , albeit a qualified one . The obligation in question was CARDINAL of conduct and not CARDINAL of result , in the sense that a ORG could not be under an obligation to succeed , whatever the circumstances , in preventing the commission of genocide : the obligation of GPE parties was rather to employ all means reasonably available to them so as to prevent genocide so far as possible . A ORG did not incur responsibility simply because the desired result was not achieved ; responsibility was however incurred if the ORG manifestly failed to take all measures to prevent genocide which were within its power and which might have contributed to preventing the genocide .

The ICJ went on to find that the authorities of the ORG , and above all its President , Mr PERSON , had been aware of the tensions reigning in the GPE area between the various ethnic groups and thus of the danger that genocide might occur . Although undeniably possessing influence over the ORG by dint of “ political , military and financial links ” with it ( loc . cit . , § CARDINAL ) , they had not brought their influence to bear on the ORG to prevent the genocide from occurring . The international responsibility of GPE was thereby engaged ( loc . cit . , § CARDINAL ) .

On DATE the applicants summoned ORG and ORG before ORG ( rechtbank ) of GPE . The summons was a CARDINAL document in which the applicants stated that the State of the GPE ( responsible for Dutchbat ) and ORG ( which bore overall responsibility for PERSON ) , despite DATE promises and despite their awareness of the imminence of an attack by the ORG , had failed to act appropriately and effectively to defend the LOC “ safe area ” and , after the enclave had fallen to the ORG , to protect the noncombatants present . They therefore bore responsibility for the maltreatment of members of the civilian population , the rape and ( in some cases ) murder of women , the mass murder of men , and genocide . The applicants based their position both on GPE civil law and on international law .

ORG The argument under civil law was , firstly , that ORG and ORG had entered into an agreement with the inhabitants of the NORP enclave ( including the applicants ) to protect them inside the LOC “ safe area ” in exchange for the disarmament of the ORG forces present , which agreement ORG and ORG had failed to honour ; and secondly , that GPE , with the connivance of ORG , had committed a tort ( onrechtmatige daad ) against them by sending insufficiently armed , poorly trained and ill - prepared troops to GPE and failing to provide them with the necessary air support .

The argument under international law , in so far as relevant to the case now before the ORG , was based on ORG on ORG and Draft Articles on ORG , the applicants taking the position that the actions of Dutchbat were attributable to both ORG the GPE and ORG .

Although recognising that individuals were not subjects of classical international law , the applicants argued that the right of victims to redress under international law had been recognised directly by ORG Basic Principles and Guidelines on the Right to a LAW and LAW , which had direct effect in the GPE by virtue of LAW for GPE .

Anticipating the likelihood that ORG would invoke its immunity based on LAW , the applicants argued that any immunity which that organisation enjoyed could go no further than was necessary for it to carry out its tasks , and moreover that access to a court was guaranteed by , in particular , LAW .

It appears that the Minister of ORG did not make use of the possibility provided by section CARDINALa of LAW DATE ( Gerechtsdeurwaarderswet CARDINAL , see below ) to declare to the bailiff that service of the summons would be contrary to the obligations of the ORG under international law .

ORG did not appear before ORG , having previously indicated to ORG in GPE that it would not .

GPE , already a defendant in its own right , also asked to intervene on behalf of ORG , or in the alternative to join the proceedings against ORG as a defendant . It submitted that in the light of LAW taken together with LAW , LAW , the GPE courts lacked competence in so far as the proceedings were directed against ORG ; it was for the GPE courts to recognise the immunity of the ORG ex officio unless it was explicitly waived . The ORG had an international legal interest of its own in invoking this immunity , as was reflected particularly in section CARDINAL of LAW DATE .

The applicants argued that the immunity of ORG was overridden by , in particular , LAW and the prohibition of genocide , the latter being a rule of ius cogens that had found its way into treaty law ( in the form of ORG ) .

The main proceedings were adjourned pending a final decision in the incident of procedure .

ORG gave judgment on DATE ( FAC ( National Jurisprudence Number , “ LJN ” ) ORG , LANGUAGE translation PERSON ) . In so far as relevant to the case before the ORG , it found that the failure by the Minister of ORG to make a declaration as provided for by section CARDINALa of LAW DATE did not imply recognition of the jurisdiction of the GPE courts by GPE .

Conversely , the ORG had an interest of its own in defending the ORG Nations’ immunity from jurisdiction in view of its obligations under LAW . ORG then noted that ORG had indicated its desire to see its immunity respected , as it invariably did , and found that the immunity of ORG was in fact recognised in international legal practice .

According to ORG , neither ORG nor any other rule of international law , whether defined by treaty , by customary law or by ORG practice , obliged the GPE to enforce the prohibition of genocide through its civil law ; LAW provided only that GPE should ensure that genocide was punished .

Referring to the case - law of this Court ( PERSON v. the GPE [ ORG ] , no . ORG , ORG CARDINAL-XI ) , ORG found that in principle the sovereign immunity of a ORG was not overridden by the prohibition of torture laid down in LAW . The prohibition of torture being as much a rule of ius cogens as the prohibition of genocide , it could be concluded that , in the current state of international law , immunity from civil suit in a domestic court DATE whether enjoyed by a sovereign ORG or by an international organisation DATE was not overridden by ius cogens .

DATE . It followed that the ORG Nations’ immunity was not functional , to be weighed in the balance by the domestic courts , but absolute .

As to LAW , ORG pointed to the decision of ORG in PERSON and PERSON v. GPE and ORG v. GPE , GPE and GPE ( ( dec . ) [ ORG ] , ORG . MONEY and GPE , DATE ) . It had been held in that decision that troop - contributing nations could not be held to account for the actions of forces placed at the disposal of ORG for international peacekeeping operations . From this it followed that DATE could not be invoked in support of an exception to the immunity from suit of ORG itself .

ORG was aware that the ORG had , in PERSON and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ECHR CARDINAL-I ) , and Beer and PERSON GPE ( [ ORG ] , no . CARDINAL , CARDINAL DATE ) , made statements suggesting that the immunity of an international organisation was compatible with LAW only if the organisation itself offered a reasonable alternative for the protection of Convention rights . However , the creation of ORG predated the entry into force of the Convention . Moreover , ORG was an organisation whose membership was well - nigh universal ; this distinguished it from organisations such as ORG , the organisation in issue in GPE and PERSON and PERSON and PERSON , which had been created only in DATE and whose membership was limited to GPE . Moreover , the ORG itself had recognised the special position of ORG in GPE and PERSON v. GPE and GPE v. GPE , GPE and GPE . At all events , if any State were to exercise jurisdiction over ORG , that ORG should be the one within whose territory the organisation had its seat or the acts complained of had taken place ; in the present case , that excluded the GPE .

ORG thus declined jurisdiction with regard to ORG without finding it necessary to rule on the request by ORG for permission to intervene or join the proceedings .

The applicants appealed to ORG ( gerechtshof ) of GPE . Their principal arguments may be summarised as follows .

In so far as relevant to the case before the ORG , they argued that the ORG ’s reliance on the absolute immunity of ORG went hand in hand with its argument that ORG alone bore responsibility for the failure to prevent the act of genocide constituted by the GPE massacre . To accept that argument would be to deny access to a court to the surviving kin of the victims of the massacre , which was legally , humanly and morally wrong . ORG had overlooked the nature of the ORG ’s argument , which was based not so much on its need to meet its obligations under international law as on its own self - interest , clearly understood ( welbegrepen eigenbelang ) . It was not the purpose of the international legal obligation to allow the ORG to evade its own responsibility .

ORG had been required by LAW , section CARDINAL of the Convention on the Privileges and Immunities of ORG to institute some form of settlement mechanism for disputes of a private nature to which it was a party , but in DATE of its existence it had failed to do so . There was therefore an urgent need for the GPE domestic courts to assume jurisdiction .

The PERSON judgment of this Court was not appropriate precedent , since the immunity of an international organisation was different from the immunity of a sovereign State . Moreover , in PERSON the Court had been deeply divided . The majority position in PERSON had been criticised in that it had allowed sovereign immunity to trump a rule of ius cogens , namely the prohibition of torture . It was still more inappropriate to allow the functional immunity of an international organisation to override an even more fundamental rule of ius cogens , namely the prohibition of genocide .

DATE . In the ORG and ORG cases , both ORG to ORG of ORG and ORG itself had demonstrated a willingness to step in and provide access to a court where ORG itself had failed to do so ( the applicants referred to Joined Cases C-CARDINAL/CARDINAL P and C-CARDINAL/CARDINAL P , PERSON and ORG Council of ORG of ORG , judgment of DATE ) .

The Court of Appeal gave judgment on DATE ( LJN BLCARDINAL ) . It allowed the ORG to join the proceedings against ORG as a defendant and went on to uphold the judgment of ORG for the remainder .

It did not accept that the ORG was trying to evade its own liability in civil law by invoking the immunity of ORG . This being an incident of procedure concerning the competence of the GPE domestic courts in relation to ORG , ORG could not anticipate the defence which ORG would put forward as a defendant in its own right in future proceedings on the merits .

Referring to Article II , section CARDINAL of the Convention on the Privileges and Immunities of ORG , which was to 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 the light of its object and purpose ” ( DATE of LAW of the Law of Treaties ) , and also in the light of LAW , ORG found that no other construction could be placed on that provision than that “ the most far - reaching immunity [ had ] been granted to ORG , in the sense that ORG [ could ] not be summoned before any domestic court of the countries that [ were ] party to that LAW . It did not follow from the wording of LAW that the immunity of ORG was merely functional , it being obvious from the ORG of the Charter preceding Article CARDINAL that ORG ( including LAW , section QUANTITY thereof ) was intended to specify the “ privileges and immunities ... necessary for the fulfilment of [ the ORG Nations’ ] purposes ” .

Unlike ORG , ORG was not convinced that the ORG had deviated from PERSON and PERSON and PERSON and PERSON in its decision in PERSON and PERSON v. GPE and GPE v. GPE , GPE and GPE . The latter case had concerned neither ORG as a prospective party nor access to the domestic courts within the meaning of LAW . Nor could it make any difference that ORG had been set up before the ORG entered into force ; such a finding would be incompatible with the fundamental nature of Convention rights . Likewise , it could not be assumed that LAW had been intended simply to set aside customary international law or international treaties , still less to impair the protection of international human rights standards , it being precisely one of the purposes of ORG to promote respect for human rights and fundamental rights . This meant that the criteria by which the immunity from jurisdiction enjoyed by ORG was to be judged were those set out by the ORG in § CARDINAL of Beer and PERSON .

ORG judgment continued as follows :

“ CARDINAL . As regards the question whether the immunity from jurisdiction enjoyed by ORG is in this case proportionate to the aim pursued , ORG would observe the following . ORG has a special position among international organisations . ORG may , after all , pursuant to LAW , take such action by air , sea , or land forces as may be necessary to maintain or restore international peace and security . No other international organisation has such far - reaching competences . In connection with these far - reaching competences , by which ORG and the troops placed at the disposal of ORG may get involved in situations of conflict which will frequently involve conflicting interests of a plurality of parties , there is a real risk that if ORG enjoyed only partial immunity from jurisdiction , or none at all , it might be exposed to claims from parties involved in the conflict and be summoned before the domestic courts of the country where the conflict concerned is being acted out . Precisely in view of the sensitive nature of the conflicts in which ORG may become involved , one should also consider situations in which ORG might be summoned solely in order to frustrate action by ORG in whole or in part . One could also imagine that ORG might be summoned in countries in which the judiciary does not meet the standards of LAW . The immunity from jurisdiction granted to ORG is therefore directly connected with the general interest pertaining to the maintenance of peace and security in the world . For that reason it is of great importance that ORG should dispose of as great a degree of immunity as possible , which should be subject to as little discussion as possible . Against this background , ORG is of the opinion that only cogent reasons can lead to the finding that the ORG Nations’ immunity is disproportionate to the aim thereby pursued .

ORG notes in the first place that it is sensitive to the dreadful events ( vreselijke gebeurtenissen ) to which ORG and their relatives fell victim and to the suffering caused them thereby . The ORG has not contested that genocide was committed at GPE ; indeed , this is common knowledge . It is entirely understandable that the Mothers of Srebrenica should seek satisfaction in law for this . That , however , is not the end of the matter . As noted above , there is also a considerable general interest in ensuring that ORG should not be compelled to appear before a domestic court . In this area of tension there is a need for a balancing act CARDINAL legal principles , each of them extremely important , but CARDINAL of which can be decisive .

ORG finds in the first place that [ the applicants ] recognise that ORG did not itself commit genocide . ... Nor can it be deduced from the facts as stated by [ the applicants ] that ORG knowingly cooperated in the genocide . [ The applicants ] essentially allege that ORG was negligent ( nalatig ) in failing to prevent the genocide . ORG is of the opinion that although the allegation thus made against ORG is serious , it is not grave ( pregnant ) to the point of overriding the organisation ’s immunity for that reason alone , or to the point that it is for that reason alone unacceptable for ORG to invoke its immunity . In this connection , ORG finds it significant that , as already mentioned , ORG peace operations generally take place in parts of the world where a live conflict ( brandhaard ) has broken out , and that it will generally be possible without great difficulty to blame ORG , not for having itself committed crimes against humanity , but for having failed to take adequate measures against [ such crimes ] , [ a situation which ] may well give rise to abuse . The allegation that ORG did not prevent the genocide in GPE and was negligent in that connection is therefore insufficient in principle to affect its immunity from jurisdiction . Nor is it decisive that it is not stated in the present case that there is no abuse in the sense referred to above . If ORG could successfully invoke its immunity only if in the particular case abuse could be proved , its immunity would be unacceptably diminished ( aangetast ) .

The next fact relied on by [ the applicants ] is the absence of a procedural remedy attended by adequate safeguards ( een met voldoende waarborgen omklede rechtsgang ) . They have pointed out that ORG has not , as prescribed by LAW , section CARDINAL , opening sentence and ( a ) of FAC , made provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private - law character to which ORG is a party . All [ the applicants ] agree that ORG has not done so . The ORG has also failed adequately to dispute [ the applicants’ ] reasoned arguments that the ‘ Agreement on the Status of UNPROFOR’ effectively offers [ the applicants ] no realistic possibility to sue ORG . ORG is however of the opinion that it can not be established that [ the applicants ] have no access to a court at all in relation to what happened in GPE . In the first place , it has not been made clear from the facts as stated by [ the applicants ] why it would not be possible for them to bring the perpetrators of the genocide , and possibly also those who might be considered responsible for those perpetrators , before a court meeting the standards of LAW . In so far as [ the applicants ] have failed to do so because the persons liable can not be found , or offer insufficient prospects of recovery of damages , ORG observes that LAW does not guarantee that persons wishing to bring a civil action will always be able to find a ( solvent ) debtor .

In the second place , it is open to [ the applicants ] to summon the ORG , which they hold responsible in terms comparable to those applied to ORG , before the GPE courts . [ The applicants ] have in fact made use of this possibility . The ORG can not invoke any immunity from jurisdiction , which means that the GPE courts will have to express themselves on the merits of the claim against the ORG in any case . That does not change if in those proceedings , as [ the applicants ] claim to expect – with some justification ... – the ORG puts up a defence to the effect that its actions in GPE should be attributed ( exclusively ) to ORG . Even if that defence ... is made , the courts will in any case have to consider the merits of [ the applicants’ ] claims and to that extent [ the applicants ] have access to an independent court .

It follows from the above that it can not be said that for [ the applicants ] the very essence of their right of access to a court would impaired if the ORG Nations’ immunity from jurisdiction were recognised . ORG refers in this connection to [ PERSON v. GPE , DATE , Series A no . CARDINALB ] , from which it is apparent that ORG is prepared to accept even quite far - reaching limitations on access to a court . There is no such far - reaching limitation in the present case , given that [ the applicants ] can sue CARDINAL categories of parties for the damage suffered by ORG , to wit , the perpetrators of the genocide and the ORG . Against this background , ORG does not consider the fact that ORG has not , in accordance with its obligations pursuant to LAW , section CARDINAL , opening sentence and ( a ) of the Convention on the Privileges and Immunities of ORG , created an alternative remedy for claims such as the present – regrettable though that may be – as being of sufficiently decisive importance to affect its immunity from jurisdiction . ”

The applicants lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) . In the course of the proceedings they submitted a summons ( dagvaarding ) and an explanatory memorandum ( schriftelijke toelichting ) . Their arguments , in so far as relevant to the case before the ORG , may be summarised as follows :

In the applicants’ view , the distinction which ORG had made between proceedings against ORG and against ORG lacked justification , in view of the interrelation between the CARDINAL cases . To hold that ORG enjoyed immunity in the present case would enable GPE to argue that its conduct was imputable to , or legitimised by , ORG and thus to evade its responsibility .

The immunity of ORG under international law was not as extensive as had been held by ORG . In the absence of any alternative procedure accessible to the applicants , ORG had thus placed ORG above the law . The unacceptable nature of such a finding followed from , inter alia , this ORG ’s judgments in PERSON and PERSON and PERSON and PERSON .

ORG had based its findings on the supposition that the applicants were seeking only monetary compensation , which could be paid by any party which had the necessary funds . In fact their claims were not limited to money : they sought recognition of the responsibility of ORG for failing to prevent the genocide of which their relatives had become victims . A judicial declaration to that effect could be made only with ORG as defendant , not against the GPE or for that matter the NORP perpetrators .

The immunity of ORG was grounded in a political interest . A court of law , however , should apply the law ; it was the law which formulated the right of access to a court , which therefore overrode a political interest . This applied all the more since the prohibition of genocide was a rule of ius cogens . The applicants further pointed to the size of the majority in LOC ORG ( DATE , the smallest possible ) as evidence of a trend towards recognising that ius cogens – in that case the prohibition of torture – could override immunities hitherto recognised in international law .

In holding that ORG had not itself perpetrated genocide , ORG had missed the point , which was that ORG had failed in its duty to prevent the genocide . Moreover , Dutchbat had connived in the genocide by cooperating with the ORG in deporting the civilian population from the GPE safe area and in helping to separate the men from the women and children despite indications that their lives were in jeopardy .

It made no difference for the purposes of the right of access to court , as guaranteed by LAW , whether or not there was a solvent debtor or whether or not ORG could claim immunity from civil suit in its own courts .

Finally , ORG had failed to go into the question whether ORG ought to have waived its immunity .

The applicants supplemented the summons with an explanatory memorandum ( schriftelijke toelichting ) , in which they argued at length that the immunity of ORG was always intended to be functional , not diplomatic . This was reflected by the wording of LAW . Although LAW , section QUANTITY of the Convention on the Privileges and Immunities of the ORG suggested otherwise , it was subordinate to the LAW by virtue of LAW . Moreover , it remained possible – and was sometimes a moral , if not a legal obligation – to waive immunity , as in cases of serious human rights violations . This was all the more so since ORG had failed itself to provide for the settlement of disputes to which it might be a party , as it was required to by LAW , section CARDINAL of the Convention on the Privileges and Immunities of ORG .

An advisory opinion ( conclusie ) was submitted by the Procurator General ( procureur - generaal ) at ORG .

NORP The Procurator General distinguished between the immunity of GPE , which was based on their sovereign equality in international law , and the immunity of international organisations , which was intended to enable them to function . Citing PERSON and PERSON , he recognised that an international organisation ’s immunity from domestic jurisdiction might need to be set aside if no internal dispute resolution mechanism was available . In the present case , however , there was an internal alternative , provided by paragraph CARDINAL of the Agreement on the status of ORG in GPE .

For the remainder , the Procurator General expressed the view that ORG had based its judgment on a correct assessment of the competing interests involved . To the extent that the applicants argued otherwise , they had based their argument on misconstructions of ORG judgment .

ORG gave judgment on DATE ( LJN BWCARDINAL ) . Its reasoning included the following passages :

“ Basis and scope of the immunity of ORG

CARDINAL NORP The immunity of ORG , which should be distinguished from the immunity of its functionaries and of experts performing missions for it , is based on LAW and LAW , section QUANTITY , of the Convention [ on the Privileges and Immunities of the United Nations ] . The latter provision , which elaborates on LAW [ of LAW ] , has rightly been construed by ORG – applying LAW on GPE – as granting ORG the most far - reaching immunity from jurisdiction , in the sense that it can not be summoned before any domestic court of the countries that are party to the Convention [ on the Privileges and Immunities of the United Nations ] .

The basis and scope of this immunity , which is intended to ensure the functioning of ORG in complete independence and which for that reason alone serves a legitimate purpose , are thus different from the immunity from jurisdiction afforded to foreign GPE . As expressed in section CARDINALa of the LAW containing General Provisions on the Legislation of GPE ) , the latter immunity derives from general international law ( par in parem non habet imperium ) , and concerns only actions of a foreign ORG performed by the latter in the exercise of its governmental duty ( acta iure imperii ) .

Immunity of ORG and access to a court

CARDINAL.CARDINAL.CARDINAL ORG has ... , applying the criteria formulated by ORG and PERSON v. GPE ( [ ORG ] , no . CARDINAL , CARDINAL DATE ) , and PERSON and PERSON v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALI ) , gone into the question whether invoking the immunity of ORG is compatible with the right to access to a court ( laid down in DATE of LAW ) . The ORG no longer disputes that this right – which is not absolute – is ( also ) a rule of customary international law .

CARDINAL According to § § CARDINAL - CARDINAL [ of PERSON and PERSON ] , the ORG ’s finding to the effect that honouring the immunity of international organisations such as the ORG [ ORG ] does not constitute a violation of LAW was determined in particular by the fact that LAW ( ‘ the ORG Convention’ ) explicitly provides for an alternative procedure for the settlement of private - law disputes of which claimants can avail themselves . It is observed that § CARDINAL mentions ‘ international organisations’ without further explanation , but that DATE even leaving aside any consideration relating to the interrelation between LAW and CARDINAL of the Charter of ORG – there is no reason to assume that in referring to ‘ international ORG the ORG wished to refer also to ORG , at least not as regards action taken by that organisation within the framework of LAW of LAW with respect to threats to the peace , breaches of the peace , and acts of aggression ) .

CARDINAL NORP The ( Security Council of the ) ORG has a special place within the international legal community , as has also been expressed in PERSON and PERSON v. GPE and ORG v. GPE , GPE and GPE ( dec . ) [ ORG ] , no . CARDINAL . In that decision , which concerns acts and omissions of ORG Interim PERSON in GPE ( UNMIK ) and ORG ( ORG ) , deployed in GPE pursuant to a ORG resolution , the ORG held , inter alia :

‘ CARDINAL . The question arises in the present case whether the ORG is competent ratione personae to review the acts of the respondent GPE carried out on behalf of the ORG and , more generally , as to the relationship between the ORG and the ORG acting under LAW .

NORP ... More generally , it is further recalled , as noted at paragraph CARDINAL above , that the LAW has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its Contracting Parties . The ORG has therefore had regard to CARDINAL complementary provisions of the LAW , Articles CARDINAL and CARDINAL , as interpreted by the ICJ ( see paragraph CARDINAL [ of the decision ] ) .

Of even greater significance is the imperative nature of the principal aim of the ORG [ ORG ] and , consequently , of the powers accorded to the ORG [ ORG ] under LAW to fulfil that aim . ... The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition , now customary international law , on the unilateral use of force ( see paragraphs CARDINAL - CARDINAL [ of the decision , which trace the development of the prohibition on the unilateral use of force up to the creation of ORG ] ) .

In the present case , Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace , namely UNSC Resolution CARDINAL establishing UNMIK and ORG .

Since operations established by ORG under LAW UN Charter are fundamental to the mission of the ORG to secure international peace and security and since they rely for their effectiveness on support from member states , the LAW can not be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by ORG and occur prior to or in the course of such missions to the scrutiny of ORG . To do so would be to interfere with the fulfilment of the ORG ’s key mission in this field including , as argued by certain parties , with the effective conduct of its operations . It would also be tantamount to imposing conditions on the implementation of a ORG which were not provided for in the text of the ORG itself . ... ’

In paragraph CARDINAL , referred to in this quotation , the ORG finds , among other things , that according to the ICJ Article CARDINAL of the Charter of the ORG means that the obligations incumbent on the Members of ORG in accordance with LAW take precedence over obligations arising from any other treaty that are inconsistent therewith , regardless of whether it was entered into DATE than LAW or concerns merely a regional arrangement . And in § CARDINAL the ORG holds that , in view of the importance to international peace and security of operations that take place pursuant to resolutions of ORG within the framework of Chapter VII of LAW , the LAW can not be construed in the sense that acts and omissions of GPE Parties governed by resolutions of ORG are subject to review by the ORG .

CARDINAL NORP The interim conclusion has to be that ORG has erred in considering , in the light of the criteria formulated in Beer and PERSON and PERSON and PERSON , whether the immunity invoked on behalf of ORG should be overridden by the right of access to a court as referred to in DATE .

CARDINAL That immunity is absolute . Its maintenance moreover is among the obligations of the Members of ORG , which , as the ORG noted in PERSON , PERSON and ORG , according to LAW take precedence over obligations pursuant to other international agreements .

CARDINAL That , however , does not answer the question whether , as [ the applicants ] argue with particular reference to the dissenting opinions appended to PERSON v. GPE ( [ ORG ] , no . ORG , ECHR DATE ) , which relates to ORG immunity , the immunity of ORG should be overridden by the right of access to a court because the claims are based on alleged involvement in genocide and other serious violations of fundamental human rights ( torture , murder and rape ) , in particular by not preventing them . ...

CARDINAL.CARDINAL.CARDINAL NORP The majority opinion [ finding that it had not yet been accepted in international law that GPE were not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum ORG ] was opposed by , among others , the dissenting opinion of CARDINAL judges of ORG now prayed in aid by [ the applicants ] , which – in consonance with a not inconsiderable proportion at least of the domestic and foreign literature on the subject of ( State ) immunity – includes the following passage :

‘ CARDINAL . The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a ORG allegedly violating it can not invoke hierarchically lower rules ( in this case , those on ORG immunity ) to avoid the consequences of the illegality of its actions . In the circumstances of this case , GPE can not validly hide behind the rules on ORG immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction ; and the courts of that jurisdiction ( GPE ) can not accept a plea of immunity , or invoke it ex officio , to refuse an applicant adjudication of a torture case . Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity , the procedural bar of State immunity is automatically lifted , because those rules , as they conflict with a hierarchically higher rule , do not produce any legal effect . In the same vein , national law which is designed to give domestic effect to the international rules on State immunity can not be invoked as creating a jurisdictional bar , but must be interpreted in accordance with and in the light of the imperative precepts of jus cogens.’

CARDINAL.CARDINAL.CARDINAL DATE More important even than the fact that this opinion does not , as matters now stand , reflect the opinion accepted by ORG , is the ruling of the ICJ ... in Jurisdictional Immunities of the State ( GPE v. GPE : GPE Intervening ) [ judgment of DATE ] . That case concerned , among other things , the question whether the NORP courts ought to have respected the immunity of GPE in the cases considered by them in which compensation was claimed from GPE for damage resulting from violations of international humanitarian law by NORP troops in World War II . That question was answered in the affirmative by the ICJ .

CARDINAL.CARDINAL.CARDINAL Although the immunity of ORG can be distinguished from ORG immunity , the difference does not justify making a finding as regards the interrelation between that immunity and the right of access to a court which differs from that made by the ICJ as regards the interrelation between ORG immunity and the right of access to a court . That immunity belongs to the ORG regardless of the seriousness of the allegations on which [ the applicants ] base their claims .

CARDINAL.CARDINAL.CARDINAL ... [ The further complaints ] – ORG sees no need to ask ORG of ORG for a preliminary ruling ... – do not provide grounds for overturning the ruling of ORG ( kunnen niet tot cassatie leiden ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since the complaint does not make necessary a determination of legal issues in the interest of the unity or development of the law . ”

After the judgment of ORG the main proceedings were resumed against the ORG only . According to the applicants , the ORG submitted that the acts and omissions “ before , during and after the fall of LOC ” were entirely attributable to ORG and that the GPE bore no responsibility in the matter .

As far as the ORG is aware , the proceedings are still pending at first instance .

The provisions of the LAW for GPE ( PERSON voor het FAC ) relevant to the case are the following :

Article CARDINAL

“ Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published . ”

Article CARDINAL

“ Statutory regulations in force within the GPE shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions . ”

In its relevant part , the Act containing General Provisions on the Legislation of GPE ) provides as follows :

Section CARDINALa

“ The jurisdiction of the courts and the enforceability of judgments and executable official documents ( authentieke akten ) shall be limited by the exceptions recognised in international law . ”

In its relevant part , LAW ) provides as follows :

Article CARDINAL

“ CARDINAL . If in proceedings ( zaken ) that must be introduced by a summons ( dagvaarding ) the GPE court has jurisdiction with respect to CARDINAL of the defendants , then it shall also have jurisdiction with respect to other defendants involved in the same proceedings ( geding ) , provided that there exists a connection between the claims against the various defendants such that reasons of efficiency justify their joint treatment . ... ”

In so far as relevant to the case before the ORG , ORG ( Wet op de rechterlijke organisatie ) provides as follows :

Section CARDINAL

“ If ORG considers that a complaint does not provide ground to overturn the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law , it may , in giving reasons for its decision on such complaint , limit itself to that finding . ”

As relevant to the case , LAW DATE ( Gerechtsdeurwaarderswet CARDINAL ) provides as follows :

Section CARDINAL

“ CARDINAL . A bailiff is a public official charged with the duties entrusted to bailiffs or reserved to them by or pursuant to the law , excluding all others or not as the case may be . In particular , a bailiff shall be charged with :

a. serving summonses and other official notifications ( het doen van dagvaardingen en andere betekeningen ) instituting judicial proceedings or forming part of the exchange of documents in judicial proceedings ; ... ”

Section CARDINALa

“ CARDINAL . A bailiff who receives an instruction for an official act shall , if he ought reasonably to be aware of the possibility that its execution might be contrary to the ORG ’s obligations under international law , inform the Minister [ of ORG ] immediately of that instruction in the manner laid down in the ministerial rules .

NORP The Minister may issue a declaration to a bailiff informing him that an official act for which he has received , or is to receive , an instruction , or which he has already carried out , is contrary to the ORG ’s obligations under international law .

NORP If , at the time when the bailiff receives the declaration referred to in the second paragraph , the official act has not yet been carried out , the consequence of the declaration shall be that the bailiff is not competent to carry out that official act . An official act carried out contrary to the first sentence shall be null and void . ... ”

NORP In DATE an organisation called Udruženje Građana “ PERSON ” ( ORG ” ) , an association based in GPE , GPE , requested ORG of The GPE to order a preliminary hearing of witnesses ( voorlopig getuigenverhoor ) with a view to bringing civil proceedings in tort against GPE .

On DATE ORG gave a decision ( PERSON ANCARDINAL ) refusing that request . It took the view that , in the absence of relevant established case - law , it was necessary first to settle the question of principle whether , and in what cases , the ORG could be held liable for the actions of a military contingent operating under the command and control of ORG had been . Such a decision could not properly be taken in proceedings for the preliminary hearing of witnesses ; it required proceedings on the merits . In any case , the documentation available , which was very extensive and included the report of ORG , Holocaust and Genocide Studies and the report of the GPE parliamentary inquiry , ought to be sufficient for the association to assess its chances of success , the more so since many of the witnesses whom the association wanted to hear had already been heard in the course of those CARDINAL investigations .

ORG . CARDINAL civil cases have been brought in the GPE courts against GPE by surviving relatives of men killed in the GPE massacre .

The claimants in the first case ( GPE v. the ORG of the GPE ) are surviving relatives of an electrician who was a de facto employee of Dutchbat but did not enjoy the status conferred on persons employed by ORG directly . They alleged that on DATE ORG had committed a breach of contract in that the Dutchbat deputy commander had refused to let their relative stay with his family in the compound at PERSON , as a result of which he was made to leave the compound that same day , whereas the Dutchbat leadership ought to have protected him by keeping him inside and evacuating him together with Dutchbat itself . In the alternative , they alleged a tort . The claimant in the second case ( GPE v. the ORG of the GPE ) was himself a de facto employee of Dutchbat , for which he worked as an interpreter but also without the status of ORG employee ; he is the son of CARDINAL man killed in the massacre and the brother of another . He alleged a tort in that the ORG deputy commander had turned the CARDINAL men out of the compound in the afternoon of DATE .

The CARDINAL cases were considered in parallel , first by ORG of The Hague and then by ORG .

At first instance , ORG held that the matters complained of were imputable to ORG alone . Dutchbat had been under ORG command and control ; furthermore , the events complained of had taken place in GPE , a sovereign ORG over which neither ORG nor the GPE had jurisdiction .

NORP The NORP family and PERSON appealed to ORG .

ORG delivered CARDINAL interlocutory judgments on CARDINAL DATE ( PERSON ( GPE ) and PERSON ( Nuhanović ) ) , which in their relevant parts are identical . It ordered the hearing of witnesses on a point of procedure not relevant to the case before the ORG .

In CARDINAL essentially identical judgments on the merits delivered on DATE ( LJN BWCARDINAL ( GPE ) and PERSON ( Nuhanović ) ) , ORG overturned the judgments of ORG and held GPE liable in tort for the damage caused to the appellants as a result of the deaths of their relatives .

The ORG brought appeals on points of law against those judgments before ORG . In his advisory opinion to ORG , presented on DATE , the Advocate General ( advocaat - generaal ) proposed that ORG dismiss them ( PERSON , ORG CARDINAL ) .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was a NORP citizen born in DATE who died on DATE . By letter of CARDINAL DATE , the applicant 's widow and children informed the ORG that they wished to pursue the application .

In DATE the applicant instituted proceedings in ORG of PERSON seeking the recovery of salary arrears against his former employer - the ORG - owned “ GPE ” company which performed construction work at GPE in the zone which had been compulsory evacuated . By a decision of the court of DATE , the applicant was awarded CARDINAL NORP hryvnas ( ORG ) in salary arrears . On DATE and DATE the applicant received ORG CARDINAL and ORG CARDINAL respectively . However , the judgment remains to a large extent unenforced , the outstanding debt being ORG ( the equivalent of MONEY [ “ ORG ” ] ) .

NORP By letter of CARDINAL January DATE , ORG informed the applicant 's lawyer about the large number of execution writs pending against the debtor company , in the total amount of ORG CARDINAL . Enforcement of the judgments by the attachment of property , however , required a special authorisation from ORG due to the location of the debtor 's property in the GPE area , contaminated by radiation . Such authorisation was not granted .

By the order of CARDINAL DATE of ORG , the debtor company was liquidated and a liquidation commission established .

Accordingly , on DATE ORG terminated the enforcement proceedings in the applicant 's case and forwarded the execution writ to the liquidation commission as a creditor 's claim . The liquidation proceedings are still pending .

A description of the relevant domestic law can be found in GPE and Others v. GPE ( nos . CARDINAL/CARDINAL and following , § § CARDINAL , DATE ) .


The applicant is a NORP national , born in DATE and living in GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

A.

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

On CARDINAL DATE the applicant was arrested for aggravated theft . He was brought before ORG and applied for bail , which was the only possibility open to him under domestic law for obtaining his release . As he risked incurring a sentence exceeding CARDINAL GPE imprisonment , his application had to be communicated to the Attorney General . When ORG obtained the Attorney General ’s views TIME , it ordered the applicant ’s release .

On DATE the applicant was acquitted .

On DATE he instituted proceedings against the police before ORG with a view to obtaining a declaration that his arrest was contrary to LAW and compensation .

On DATE ORG accepted that the applicant had been arrested although there was “ no reasonable suspicion against him ” within the meaning of LAW ) of the LAW . It awarded the applicant ORG CARDINAL by way of compensation . Moreover , the court ordered the police to pay the applicant ’s legal expenses .

The police appealed . The applicant entered a cross appeal on the paucity of the amount of compensation . On DATE ORG rejected both appeals specifying that the applicant was entitled to a “ symbolic ” sum by way of compensation . It ordered the police to pay the costs of the principal appeal and the applicant the costs of the cross appeal .

B. Relevant domestic law

Section CARDINAL of LAW allows for applications before the domestic courts by persons who allege that their rights under the Convention have been violated . LAW provides the following :

“ Where an application for redress or any reference to ORG , ORG , made after DATE is made exclusively either under LAW of the LAW or under this section and is still pending before ORG , ORG , or ORG , the court may examine whether or not the facts complained of are in violation of the corresponding LAW , in the first case , or of the corresponding LAW of the Individual enforceable under LAW , in the second case ; and if the court so finds it may order accordingly the redress it may deem appropriate under any of the aforesaid laws . ”


Violation of Art. 6-1;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways ( hereinafter “ the Directorate ” ) expropriated QUANTITY of the applicant ’s land in GPE . The expropriation decision was communicated to the applicant on DATE . According to the domestic procedure , the applicant had DATE , which began DATE after the decision was communicated to him , to ask for an increase in the amount of compensation .

On DATE a certain Mr PERSON , who had been authorised by the applicant to appoint a lawyer for him , had a power of attorney drawn up at a notary public , appointing PERSON PERSON as legal counsel to represent the applicant .

On DATE the applicant , with the assistance of his lawyer PERSON , brought an action before ORG ( hereinafter the “ ORG ” ) , seeking increased compensation . PERSON requested the court to accept the case despite the expiry of the statutory time - limit on DATE , as she had had health problems preventing her lodging the case earlier .

On DATE ORG asked ORG in GPE to clarify whether PERSON had had health problems at the relevant time and whether those problems had been of a nature to render it impossible for her to come to the court house and lodge the applicant ’s case within the statutory time - limit .

On DATE the GPE branch of ORG forwarded to ORG a number of medical reports , confirming that PERSON had been ill DATE and DATE and had thus been unable to lodge the case within the statutory time - limit .

ORG accepted the medical report and began examining the merits of the case . In the course of the proceedings it had regard to the zone plan , the expropriation documentation , CARDINAL principal and CARDINAL additional expert reports , and awarded the applicant additional compensation on DATE . The ORG appealed .

On DATE ORG quashed the decision , quoting the applicant ’s name , instead of that of his representative , as the person who had been ill . ORG stated that the applicant had given a power of attorney to PERSON so that , even if he had been ill , PERSON could have lodged the claim on his behalf within the statutory time - limit . ORG consequently held that the case had been time - barred on DATE .

In an application for rectification PERSON argued that it was she who had been ill , not her client . ORG had therefore made a factual error which should be rectified .

On DATE , ORG held that “ amending the factual error would not affect the outcome ” , and dismissed the rectification request .

On DATE ORG concurred with ORG decision and dismissed the case . On DATE ORG upheld the final ruling .

According to sections CARDINAL of the Code of Civil Procedure , if a person or his or her legal representative is unable to comply with a statutory time - limit for reasons outside his or her control , that individual is given an additional DATE period starting on the date when the situation giving rise to the inability to comply has ended .


Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and is serving a prison sentence in FAC .

On an unspecified date in DATE the applicant lodged with ORG ( PERSON ) a civil action against ORG and ORG . He sought compensation for the loss of vision in his left eye which , in his view , resulted from the insufficient medical care provided to him in FAC after his accident of CARDINAL DATE and from the inadequate conditions of his detention in that facility .

On DATE the trial court decided to grant the applicant legal - aid . On DATE a hearing was held . On DATE the court admitted to the case file a report of an expert in ophthalmology .

On DATE the ORG dismissed the applicant ’s claim . The court held that there was no causal link between the applicant ’s accident , which was a direct cause of his eye - condition , and the fact that he had been held in solitary confinement in FAC without having the assistance of a third person . The court found that , in detention , the applicant had received regular ophthalmological care and treatment since he was already blind in his right eye .

Throughout the proceedings the applicant was represented by a legal - aid lawyer .

The applicant appealed , arguing that the first - instance court had not examined his witnesses .

On DATE ORG ( Sąd Apelacyjny ) upheld that judgment on appeal . The applicant was represented before the appeal court by a new legal - aid lawyer . The judgment was served on the applicant on DATE .

The applicant asserted that he had not been notified of the date of the appellate hearing , that his lawyer had been changed without his being aware of it and that he had not been granted access to the case file . He also submitted that the trial court had not examined his witnesses .

On DATE the applicant complained to ORG ( PERSON ) that his lawyer had not met with him before the appeal hearing and that he had collaborated with the respondent .

By letter of CARDINAL DATE the applicant was informed that his complaint had been considered ill - founded . An internal inquiry revealed that the applicant ’s newly - appointed lawyer had sufficient time and means to study the case file and that he had been well prepared to argue the case . It had not been necessary for him to meet with the plaintiff in person before the trial .

A cassation appeal was not available in the applicant ’s case .

On DATE the applicant filed a complaint under LAW .

On DATE ORG rejected the applicant ’s complaint . The court held that the CARDINAL Act did not apply in the applicant ’s case because the proceedings in question had been terminated prior to the applicant ’s length of proceedings complaint .

On DATE the applicant lodged a claim for damages under section CARDINAL of the DATE Act read in conjunction with LAW .

On DATE the ORG dismissed the applicant ’s claim . The court ’s judgment was not accompanied by a reasoned opinion . It appears , however , that the court found that the applicant had failed to prove that the proceedings in his case had been lengthy or that he had incurred any pecuniary damage as a consequence of a breach of the reasonable - time requirement .

On DATE a copy of the judgment together with instructions on lodging an appeal was served on the applicant .

The applicant did not appeal and the judgment became final on DATE .

In DATE the applicant informed the ORG that he had not appealed against the judgment in question because he had considered it pointless in the light of the fact that GPE was a country not subject to the rule of law .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of PERSON v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Violation of Art. 5-3;Violation of Art. 8

The applicant was born in CARDINAL and lives in ORG .

On DATE the applicant was arrested by the police .

On DATE ORG ( FAC ) decided to detain the applicant on remand in view of the reasonable suspicion that he had stolen CARDINAL “ PERSON ” cutting tools worth ORG MONEY from his neighbours , damaged their door frame and a letter box and uttered threats against his neighbour , Mrs. PERSON The court also referred to the fact that the offences with which the applicant had been charged had been committed within DATE of his previous conviction . The applicant was also charged with having robbed an individual of ORG CARDINAL . However , this charge was subsequently dropped by the prosecutor .

On DATE the applicant 's request to change the preventive measure against him was dismissed .

On DATE the applicant was indicted before ORG .

On DATE the ORG prolonged the applicant 's detention . The court relied on the reasonable suspicion against the applicant , on the fact that he had been previously convicted and on the risk that the applicant might try to influence witnesses given the violent nature of the offences with which he had been charged and the fact that the witnesses were known to the applicant and lived in his neighbourhood . The court also considered that there was a risk that a severe sentence would be imposed on the applicant even though the charge of robbery had been dropped . The ORG noted that the applicant was a habitual offender and that there was a risk that he would abscond . The court concluded that only the detention of the applicant would secure the proper conduct of the proceedings and that the conditions for applying police supervision had not been met .

A hearing scheduled for DATE was cancelled apparently due to the fact that the applicant went on a hunger strike and had to be transferred to a prison hospital .

On DATE the applicant 's detention was further prolonged . The court essentially repeated the reasons given on DATE and further found that the applicant 's mental and physical health was not incompatible with detention .

NORP The applicant appealed against this decision , contending that the court 's assessment that he would interfere with the course of the proceedings was unfounded . He pointed out that , for DATE after the proceedings against him had been initiated , he had been living next to the main witness , PERSON , seeing her several times a day , and he had not attempted to influence her to withdraw the charges . He further raised complaints about his health and the inadequate medical care in the detention centre .

A hearing scheduled for DATE was adjourned as some of the witnesses had failed to appear .

On DATE ORG ( PERSON ) dismissed the applicant 's appeal . The court considered that the applicant 's argument that since he had not tried to influence witnesses previously he would not do so in the future could not constitute a ground for release . It further dismissed the applicant 's complaints about his state of health as unfounded . The court finally observed that the trial had not yet started because of the applicant 's decision to go on hunger strike .

On DATE the trial court held the first hearing in the applicant 's case .

On DATE a further request of the applicant to be released from detention on the grounds of , inter alia , his poor health was dismissed by ORG .

On DATE the ORG prolonged the applicant 's detention relying solely on the reasonable suspicion that the applicant had committed the offences and on the violent nature of the offences , which made it probable that he would use force against witnesses .

The applicant appealed against this decision .

On DATE ORG granted the appeal , quashed the impugned decision and ordered the applicant 's release . It appears that the applicant was released on DATE . The court gave the following reasons for its decision :

“ We can agree with the first - instance court that the main ground for maintaining preventive measures with respect to [ the applicant ] , that is the high probability that the accused had committed the offences with which he had been charged , is still relevant . However , in the opinion of ORG , at the present stage of the proceedings the particular grounds justifying imposition of the most severe preventive measure are no longer relevant . In this case there is no real and justified risk that [ the applicant ] would attempt to illegally disrupt the proper course of the trial . As it appears from the case file the court had practically finished the taking of evidence and had heard all witnesses called . What remains to be established is the state of health of [ the witness , PERSON ] . In those circumstances it is difficult to argue that there is a continuing risk that the applicant would try to influence the witnesses to make false testimonies .

On the other hand , what should be underlined is that the accused PERSON has been in pre - trial detention since DATE , which is over DATE . The act of indictment was lodged with the court on DATE . In spite of the fact that the accused is still in detention , the trial only started on DATE , that is after DATE . It would be a truism to reiterate that detention on remand should not be transformed into the serving of a sentence of imprisonment . Such a situation can not be accepted because of the guarantees of the accused 's rights and the nature of detention on remand , which is a lawful but controversial trespassing on the constitutional rights of an individual .

In the light of the above , the appeal court finds that the appeal should be allowed ...

Incidentally , ORG would observe ex officio that the first - instance courts instead of upholding detention on remand in cases where it is not absolutely necessary , should more often make use of the regulations contained in LAW [ listing other preventive measures ] . ”

On DATE the ORG gave a judgment . The court convicted the applicant of the theft of CARDINAL “ PERSON ” tool worth ORG CARDINAL , destruction of property resulting in damage of ORG CARDINAL and uttering treats . He was sentenced to DATE and DATE imprisonment .

NORP The applicant lodged an appeal and on DATE ORG dismissed it . The applicant did not lodge a cassation appeal and ORG judgment became final .

The first page of the applicant 's first letter addressed to ORG bears the following stamp : Censored , ORG ( ORG , PERSON ) , a handwritten date : CARDINAL and an illegible signature . CARDINAL side of the envelope in which the letter was delivered to the ORG had been opened and subsequently sealed with adhesive tape .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , socalled “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE . LAW provides that convicted persons are entitled to uncensored correspondence with ORG . For a more detailed rendition of the relevant domestic law provisions , see the ORG 's judgments in GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE and PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the applicant made a request for reconsideration and on DATE the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The applicants were born in DATE and DATE , and live in ORG . At the material time the first applicant was a trade - union leader , the second applicant a journalist . They also co - chaired ORG “ Civic Unity ” ( PERSON yedinstvo ) .

On DATE the Co - ordination ORG adopted at its meeting the draft text of an open letter , entitled “ Media coverage of the reforms of President PERSON in the Penza Region ” ( “ GPE obespecheniy reform ORG v Penzenskoy oblasti ” ) .

On DATE the text was discussed at a round table attended by the applicants , the editors - in - chief of local newspapers and journalists . The draft was amended and elaborated . The discussion concluded with the adoption of the open letter by the Co - ordination ORG and managers of the independent media in GPE to the President of GPE , ORG of GPE , ORG , the plenipotentiary representative of the President for the Volga LOC , and the Minister for Press and Information of GPE . The open letter was signed by the applicants and CARDINAL editors - in - chief .

On DATE the ORG birzhevaya gazeta newspaper published the open letter on its front page . The relevant extracts of the letter , translated from NORP , read as follows :

“ We ( authors of the open letter ) subscribe to various political views but are unanimous in our support of the President 's drive to curb corruption in the country , bring order to the economy , and assert the rule of law and democratic standards in all sectors of society . We have gathered at the round table because of our common concern for the fate of the President 's reforms in GPE . GPE is gradually transforming into a private holding controlled by Governor PERSON and his close circle ... [ emphasis added , see below ]

DATE we ( the independent media ) embarrass the regional authorities because we openly disagree with the selfish and destructive policy of the governor and his team , we publish materials denouncing bribe - takers and officials who abuse their position ...

Once again , as in DATE when the [ NORP ] ORG 's nomenclature feared their imminent dismissal , the regional authorities have started reprisals against the independent media . Journalists are subjected to threats and beatings , our publications are prohibited from being printed and distributed in the region ...

On the other side – the independent media , whose attempts to stand for the rule of law , human rights , to talk about bringing order to the economy and to expose corruption are routinely suppressed by the governor and his acolytes ... ”

The remainder of the open letter harshly criticised the Governor of GPE personally and contained allegations of serious wrongdoings .

On DATE CARDINAL members of ORG lodged a civil action with ORG for the protection of their honour , dignity and professional reputation and for compensation for non - pecuniary damage allegedly sustained as a result of the publication of the open letter . They named the applicants and other signatories to the letter , as well as the newspaper that published it , as co - defendants .

On DATE the original plaintiffs were joined by CARDINAL other members of ORG with identical claims .

On DATE CARDINAL of the original plaintiffs , Mr NORP , withdrew his claim . Speaking to the GPE birzhevaya gazeta newspaper , he described the proceedings as “ an attempt to bring the media under control ” . In DATE Mr NORP was dismissed from his position in the Government .

The applicants brought a counterclaim against the plaintiffs , alleging that they had violated civil - service law in that they had used their official position to discredit and adversely affect the functioning of the ORG association . The applicants claimed compensation for non - pecuniary damage allegedly caused by a violation of their rights and freedoms , in particular , the right to freedom of opinion guaranteed by LAW .

On CARDINAL DATE ORG gave judgment . It carried out at the outset a detailed analysis of federal and regional laws on the structure of ORG and reached the following conclusion on the plaintiffs ' standing in the defamation suit :

“ ... any ORG official in ORG wields a certain power and authority that is essential to the performance of his functional duties ; hence , he falls into the category of ' regional authority ' . Considering that the ' regional authority ' is made up of individuals , that is , ORG officials , the term ' regional authority ' applies to each plaintiff who is , by virtue of his position , a ORG official in GPE .

The words ' the close circle of ORG , ' the governor 's acolytes ' , and ' the governor 's team ' used in the impugned publication are DATE in the court 's opinion , and despite the defendants ' and their representatives ' assertions to the contrary – applicable to all ORG officials [ working in ] the executive body of ORG and , therefore , to the plaintiffs . ”

ORG then examined the truthfulness of the applicants ' statements referring to the “ destructive ” policy of the governor 's team . It found that the applicants had not used any “ scientific methodology for a comprehensive assessment of the social and economic development of the region ” for the preparation of the open letter and that their evaluation had been entirely based on their personal views . The court rejected the statement by Mr NORP on the economic decline in GPE in DATE because he had been dismissed from the ORG and therefore , in the court 's opinion , he was on the defendants ' side . The court concluded that the statements referring to the “ selfish and destructive policy ” were untrue .

Likewise , ORG found no evidence to support the statements referring to the persecution of journalists in GPE . It pointed out that one of the signatories , the editor - in - chief of a local newspaper , could not prove that an attack on CARDINAL of his journalists had been politically motivated . In the court 's opinion , the fact that certain members of the Government had put pressure on local officials to subscribe to the newspapers controlled by the governor to the detriment of all others was lawful and could not be interpreted as “ prohibition on distribution ” .

ORG held that the extracts of the open letter bold - faced in the text above were not true and damaged the honour and dignity of the plaintiffs as the members of ORG . It ordered that all the plaintiffs be jointly compensated for non - pecuniary damage : the defendant newspaper was to pay MONEY ( RUR ) and each of the applicants and CARDINAL of their co - defendants was to pay RUR CARDINAL . The court also ordered the defendant newspaper to publish a rectification .

ORG dismissed the applicants ' counterclaim on the ground that the plaintiffs had exercised their right to a court and , therefore , had not violated any of the applicants ' rights .

On DATE ORG examined an appeal by the applicants and upheld the judgment of DATE .

Article CARDINAL guarantees freedom of thought and expression , together with freedom of the mass media .

Article CARDINAL provides that an individual may apply to a court with a request for the rectification of statements ( svedeniya ) that are damaging to his or her honour , dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

The ORG ( in force at the material time ) provided that , in order to be considered damaging , statements had to be untrue and contain allegations of a breach of laws or moral principles ( commission of a dishonest act , improper behaviour at the workplace or in everyday life , etc . ) . Dissemination of statements was understood as the publication of statements or their broadcasting ( section CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements had been true and accurate ( section CARDINAL ) .