Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently detained at GPE . He is represented before the Court by ORG , a firm of solicitors based in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG .

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

On DATE the applicant was convicted of murder at ORG . He appealed against conviction before ORG , claiming that the evidence of CARDINAL of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials . The appeal was dismissed on DATE . ORG relied on case - law to the effect that the fact that a prosecution witness has been shown to have lied may not be fatal to conviction .

NORP The applicant sought to challenge the way in which ORG had dealt with the issue of adducing fresh evidence by way of an appeal to ORG . It was the applicant ’s case that , in determining this issue , ORG had wrongly followed the approach of a majority of ORG in the case of ORG v. ORG GPE and GPE ) [ DATE ] UKPC CARDINAL , rather than the approach of ORG in the case of GPE , NORP v. [ DATE ] ORG CARDINAL . In order for an appeal to be lodged with ORG ( now ORG ) in criminal matters , ORG must certify that a point of law of general public importance arises in the case ( section ORG ) of LAW DATE ) . ORG indicated that it would not certify that a point of law of general public importance arose in the case .

The applicant then applied to ORG for a declaration that section ORG ) of LAW was incompatible with Articles CARDINAL and CARDINAL of the LAW . The applicant argued that the certification requirement constituted a violation of his right to an impartial tribunal and his right of access to ORG .

On DATE ORG dismissed this application , finding that the certification requirement did not violate the applicant ’s rights under LAW . As regards the challenge to ORG impartiality , ORG distinguished between the substantive appeal and the certification process :

“ Although [ counsel for the applicant ] does not suggest actual bias , what he is in truth submitting is that in deciding whether to certify ORG may be influenced by an oblique motive ; the wish to avoid ORG considering the case and possibly overruling ORG decision . We entirely reject that . We reject too the suggestion that the fair minded and informed observer would conclude that in reaching its decision ORG would be so influenced . As [ counsel for the prosecution ] submits , in deciding whether or not to certify the court is not sitting on an appeal against its own decision . It is not determining any criminal charge . It is merely assessing whether its decision contains an important point of law . ”

ORG also emphasised that the same court was best placed to determine the existence of a point of law of general public importance , since it had already examined all the issues in the case .

ORG found that the certification requirement amounted to an interference with the applicant ’s right of access to ORG , which was , however , justified in pursuit of the legitimate aim of providing a filtering mechanism to control ORG caseload .

The essence of the applicant ’s right of access to ORG had not been denied since he had no right to have an uncertified point of law considered by ORG :

“ Moreover , we do not accept that a refusal to certify amounts to a denial of the essence of the appellant ’s right of access to ORG . The appellant has the right to have his access to the second - tier appeal court decided by an independent and impartial tribunal properly applying legal principles . If such a decision goes against the appellant that has not denied him the essence of his right to access to ORG . It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by ORG in circumstances where it is legitimate for there to be a filtering of the cases before that court . That is precisely what happened here . ”

As regards LAW , the ORG dismissed the applicant ’s claim on the ground that , in criminal cases , ORG jurisdiction was limited to resolving important matters of legal principle , whereas it had a broader remit in civil cases , sometimes encompassing factual issues . Appellants in criminal and civil cases were not , therefore , in comparable situations .

Section CARDINAL of LAW DATE , which replaced ORG DATE , provides as regards appeals in criminal proceedings :

“ CARDINAL . - Right of appeal to [ ORG ]

( CARDINAL ) An appeal lies to ORG at the instance of the defendant or prosecutor from any decision of ORG on an appeal to that court ...

( CARDINAL ) The appeal lies only with the leave of ORG or the [ ORG ] ; and leave shall not be granted unless it is certified by ORG that a point of law of general public importance is involved in the decision and it appears to ORG or the [ ORG ] ( as the case may be ) that the point is one which ought to be considered by [ ORG ] .

( CARDINAL ) Except as provided for by this part of this LAW ... no appeal shall lie from any decision of ORG . ”

Following several high profile miscarriages of justice , ORG , PERSON ( ORG , DATE ) , chaired by PERSON , was tasked to consider , inter alia , whether changes were needed in the criminal appeals process . In its DATE report , ORG recommended the abolition of the certification requirement ( at § MONEY ) :

“ [ I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from ORG or ORG itself . We think therefore that the requirement that ORG certify that the case involves a matter of law of general public importance should be dropped . The need to obtain the leave of either ORG or ORG before proceeding further is by itself a sufficient filter . ”

A review of the criminal courts carried out in DATE by Sir PERSON did not address this issue , since the composition and workings of ORG did not fall within its terms of reference .

NORP In GPE the High Court of Judiciary is the highest criminal court . There is no route of criminal appeal from ORG to ORG . However , there is an exception under LAW DATE for devolution issues . Devolution issues include questions as to the compatibility with LAW acts and functions of the Lord Advocate and legislation passed by the NORP parliament . In such cases , leave to appeal is required from either ORG or ORG . There is no certification requirement for criminal cases referred to ORG from ORG .

NORP In civil cases there is no certification requirement in respect of appeals to ORG from any order or judgment of ORG in GPE and GPE or in GPE . An application for permission to appeal must be made first to ORG . If that ORG refuses permission , an application may be made to ORG . For a " leapfrog " appeal directly from ORG to ORG , however , ORG judge must certify that the relevant conditions are satisfied , namely that a sufficient case has been made out to justify an application for permission to appeal to ORG and that all parties consent ( section CARDINAL(CARDINAL ) of ORG DATE ) . The “ relevant conditions ” ( which are set out in section CARDINAL(CARDINAL ) of ORG DATE ) are that a point of general public importance is involved and that it either :

“ ( a ) relates wholly or mainly to the construction of an enactment or of a statutory instrument , and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings , or

( b ) is one in respect of which the judge is bound by a decision of ORG or of the [ ORG ] in previous proceedings , and was fully considered in the judgments given by ORG or the [ ORG ] ( as the case may be ) in those previous proceedings . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( PERSON sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant filed CARDINAL preliminary written submissions and/or adduced evidence .

From DATE and CARDINAL DATE he made CARDINAL requests that a date be set for a hearing .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from CARDINAL of the appointed experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim , was served on the applicant on DATE .

On DATE ZT appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court dismissed the appeal .

The judgment was served on the applicant on DATE .

On DATE ZT lodged an appeal on points of law with ORG sodišče ) .


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

The applicant was born in DATE and lives in the city of GPE , GPE .

In DATE the applicant lodged a claim with ORG against the local social welfare department , challenging the refusal of the latter to award her a higher pension . In her claim , the applicant maintained that , under LAW and LAW , her pension should not be lower than the minimum living standard . Therefore , given that her pension was fixed at ORG CARDINAL per month and the minimum living standard was established at ORG MONEY per month , the applicant claimed a corresponding increase in her pension .

On DATE the court decided against the applicant . The court established in particular that , although LAW provided the possibility for a higher pension , it also limited the amount to a maximum sum which the applicant in fact received . The court did not consider the applicant ’s argument about the inconsistency of the amount of her pension with the minimum living standard guaranteed by LAW .

The applicant appealed against the judgment of ORG to ORG of GPE . In her cassation appeal the applicant repeatedly claimed that her pension should not be lower than the minimum living standard , as defined in LAW , and that the constitutional provisions have supremacy over the provisions of normal laws .

NORP On DATE ORG of GPE upheld the decision of the first instance court . The court did not consider the applicant ’s appeal from the viewpoint of LAW .

The relevant provisions read as follows :

“ ... The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . ”

“ ... Pensions and other types of social payments and assistance that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard ( прожитковий мінімум ) established by law . ”

“ ORG of GPE is the sole body of constitutional jurisdiction in GPE .

ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . ”

“ The jurisdiction of ORG encompasses :

CARDINAL ) NORP deciding on issues of conformity with LAW ( the constitutionality ) of the following :

- laws and other legal acts of the Verkhovna Rada of GPE ;

- acts of the President of GPE ;

- acts of ORG of GPE ;

- legal acts of the Verkhovna Rada of GPE .

These issues are considered on the appeals of : the President of GPE ; CARDINAL ORG of GPE ; ORG of GPE ; LAW the Verkhovna Rada of GPE ; the Verkhovna Rada of GPE ;

CARDINAL ) NORP the official interpretation of LAW and the laws of GPE ;

On issues envisaged by this LAW , ORG of GPE adopts decisions that are mandatory for execution throughout the territory of GPE , that are final and shall not be appealed . ”

DATE Code provided that courts should decide a case on the basis of the LAW , other legislative acts or the international treaties of GPE , under the procedure provided for in the Code .

Article CARDINAL of the PERSON foresaw that a court decision should mention the facts of the case established by the court , evidence on which the court ’s conclusion was based , and reasons for admitting or rejecting this or that argument , as well as the laws applied by the court .

“ When , in the proceedings before the courts of general jurisdiction , a dispute arises over the constitutionality of norms applied by a court , the examination of the case shall be suspended .

In such circumstances , constitutional proceedings shall be initiated and the case shall be considered by ORG immediately . ”

“ The ground for a constitutional appeal in order to obtain an official interpretation of LAW and laws of GPE is a lack of uniform application of provisions of the LAW or laws by the courts of GPE , or other organs of ORG authorities , if the subject of the right to a constitutional appeal considers that it may lead or has led to a violation of his or her constitutional rights and freedoms . ”

Article CARDINAL of this PERSON provides as relevant :

“ Old age pensions shall be established in the amount of PERCENT of the salary , but not less then the minimum amount of pensions ( мінімальний розмір пенсії ) ...

The minimum amount of an old age pension shall be established in relation to the minimum consumer budget ( мінімальний споживчий бюджет ) . In case of economic crisis and a fall in production , the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income ( межа малозабезпеченості ) . ...

The maximum amount of an old age pension shall not exceed ... CARDINAL times the minimum amount of pensions ... ”

The PERSON set the basic DATE standard of income ( межа малозабезпеченості ) at UAH CARDINAL.CARDINAL for DATE , and ORG CARDINAL for DATE .

This PERSON set the minimum amount of pensions ( мінімальний розмір пенсії ) at UAH CARDINAL.CARDINAL .

The relevant parts of the ORG read as follows :

“ CARDINAL . NORP Since the Constitution of Ukraine , as stipulated in its LAW , has the highest legal force , and its norms are norms of direct effect , the courts , in consideration of concrete cases , shall assess the content of any law or any other legal act for its compliance with LAW and , where necessary , shall apply the LAW as an act of direct effect . The court decisions shall be based on LAW and the current legislation which does not contradict it .

In case of doubt as to the compliance with LAW of a particular law , as applied or applicable in a case , the court , upon the motion of the parties to the proceedings or of its own motion , shall suspend consideration of the case and apply , by way of a reasoned decision ( ruling ) , to ORG of GPE which , under LAW , may raise before ORG the issue of compliance of laws and other legal acts with LAW . Such decisions can be taken by the first instance court , court of cassation or the court which considers a supervisory review ... ”


Violation of Article 6 - Right to a fair trial;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial)

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

On DATE the local authorities of GPE decided to split the ORG - owned ORG ( “ the Association ” ) into CARDINAL companies , CARDINAL of which was the applicant company . On DATE the applicant company was officially registered with the authorities as a private company and was subsequently assigned certain assets belonging to the ORG .

NORP The applicant company operated until DATE , when the local authorities sealed its premises in order to recover ORG property allegedly held by it . On DATE the local authorities decided to create a ORG - owned company ( “ the ORG company ” ) with a similar name to that of the applicant company and to transfer to it the ORG 's assets which had been assigned to the applicant company in DATE .

The applicant company claimed that its own property had been seized on DATE together with the property that had formerly belonged to the ORG and had been assigned to it in DATE . It also claimed that it had paid for the property assigned to it in DATE and that therefore the seizure of DATE had been unlawful . When the ORG company refused to return the seized assets , the applicant company initiated court proceedings .

On DATE ORG allowed the applicant company 's claims . On DATE ORG quashed that judgment and ordered a full rehearing of the case .

On DATE the ORG discontinued the proceedings on the ground that the arbitration courts were competent to examine such cases . On DATE ORG upheld that decision .

On an unknown date in DATE the applicant company initiated proceedings before ORG . On DATE ORG partly allowed the applicant company 's claims . On DATE the court issued an enforcement order , which was amended on DATE .

On DATE the enforcement of the decision of CARDINAL DATE was suspended pending an appeal before ORG .

On DATE the decision of CARDINAL DATE was amended by ORG , reducing the amount awarded to the applicant company .

On DATE ORG annulled all the previous judgments and ordered a full rehearing of the case .

On DATE the applicant company complained to various authorities , including ORG , of unnecessary delays in the proceedings . The complaints were forwarded to the court examining the case .

On DATE ORG quashed the judgment of DATE and ordered a full rehearing of the case .

On DATE ORG partly allowed the applicant company 's claims . On DATE the court issued an enforcement order . No appeal was lodged and the judgment became DATE .

On CARDINAL DATE ORG lodged an application for annulment of the final judgment and asked ORG to reopen the proceedings . On DATE ORG allowed the request and quashed the final judgment of DATE , ordering a full rehearing of the case .

The Chişinău Arbitration Court scheduled CARDINAL court hearings in DATE that followed , almost all of which resulted in decisions to adjourn the proceedings and summon the parties for another date , because more evidence was necessary , or CARDINAL of the parties was absent , or because a connected set of proceedings to determine who should represent the ORG company was in progress . This period lasted from DATE until DATE .

During CARDINAL of the hearings , on DATE , the court noted that there was a disagreement between the parties as to the correct valuation of the disputed property and concluded that an expert valuation was necessary . It therefore suspended the proceedings and ordered an expert report on the companies ' accounts , to be paid for by the applicant company . The report , dated DATE , confirmed that the ORG company owed the applicant company CARDINAL NORP lei ( ORG ) . According to ORG , the report was submitted to the court on DATE .

On DATE the applicant company sought leave to pay the court fees by instalments , referring to its poor financial state . The ORG accepted the request , noting , inter alia , that the proceedings had started in DATE , that the case had been sent for a fresh examination and that the examination of the case had already lasted for a long time .

On DATE ORG decided to assign the case to ORG in view of the fact that all the judges of ORG had already examined the case earlier .

On DATE ORG upheld the judgment of DATE .

On DATE ORG quashed the lower courts ' judgments and adopted a new one , rejecting all the applicant company 's claims as unfounded . It found , in particular , that it had not been proved with sufficient certainty that the applicant company had acquired any property of its own in addition to the property which had been assigned to it in DATE and which it had had to return to the ORG company . Several items which the applicant company had proved to be its own property had been returned by the ORG company or compensation had been paid . The creation of the applicant company , with ORG property but in private ownership , had been contrary to the law , and a number of its claims concerning its financial dealings with the ORG company could not be verified because the original documents had been destroyed after the expiry of the relevant time - limits for keeping them . The judgment of ORG was final .

On DATE ORG of GPE decided to put the applicant company into liquidation for non - payment of debts .


No violation of Art. 3;No violation of Art. 6-1

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant made the following allegations concerning the events underlying the dispute he submitted to the NORP courts . The Government stated that they were not in a position to comment on the accuracy of these claims .

The applicant , who is a trained pilot , went to GPE in DATE to assist in its defence against GPE . During the Gulf War he served as a member of ORG and , after the NORP invasion , he remained behind as a member of the resistance movement . During that period he came into possession of sex videotapes involving Sheikh PERSON ( “ the PERSON ” ) , who is related to the PERSON of GPE and is said to have an influential position in GPE . By some means these tapes entered general circulation , for which the applicant was held responsible by the PERSON .

After the NORP armed forces were expelled from GPE , on or about CARDINAL DATE , the PERSON and CARDINAL others gained entry to the applicant ’s house , beat him and took him at gunpoint in a government jeep to ORG . The applicant was falsely imprisoned there for DATE during which he was repeatedly beaten by security guards . He was released on CARDINAL DATE , having been forced to sign a false confession .

NORP On or about CARDINAL May CARDINAL the PERSON took the applicant at gunpoint in a government car to the palace of the PERSON of GPE ’s brother . At first the applicant ’s head was repeatedly held underwater in a swimming - pool containing corpses , and he was then dragged into a small room where the PERSON set fire to mattresses soaked in petrol , as a result of which the applicant was seriously burnt .

Initially the applicant was treated in a NORP hospital , and on CARDINAL DATE he returned to GPE where he spent DATE in hospital being treated for burns covering PERCENT of his total body surface area . He also suffered psychological damage and has been diagnosed as suffering from a severe form of post - traumatic stress disorder , aggravated by the fact that , once in GPE , he received threats warning him not to take action or give publicity to his plight .

On DATE the applicant instituted civil proceedings in GPE for compensation against the PERSON and ORG in respect of injury to his physical and mental health caused by torture in GPE in DATE and threats against his life and well - being made after his return to GPE on DATE . On DATE he obtained a default judgment against the PERSON .

The proceedings were re - issued after an amendment to include CARDINAL named individuals as defendants . On DATE a deputy ORG judge ex parte gave the applicant leave to serve the proceedings on the individual defendants . This decision was confirmed in chambers on DATE . He was not , however , granted leave to serve the writ on ORG .

The applicant submitted a renewed application to ORG , which was heard ex parte on DATE . Judgment was delivered the same day .

The court held , on the basis of the applicant ’s allegations , that there were CARDINAL elements pointing towards ORG responsibility for the events in GPE : firstly , the applicant had been taken to a State prison ; secondly , government transport had been used on CARDINAL and CARDINAL DATE ; and , thirdly , in the prison he had been mistreated by public officials . It found that the applicant had established a good arguable case , based on principles of international law , that GPE should not be afforded immunity under section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW : see paragraph MONEY below ) in respect of acts of torture . In addition , there was medical evidence indicating that the applicant had suffered damage ( post - traumatic stress ) while in GPE . It followed that the conditions in LAW rule ORG ) of the Rules of ORG had been satisfied ( see paragraph CARDINAL below ) and that leave should be granted to serve the writ on ORG .

The NORP government , after receiving the writ , sought an order striking out the proceedings . The application was examined inter partes by ORG on DATE . In a judgment delivered the same day the court held that it was for the applicant to show on the balance of probabilities that ORG was not entitled to immunity under LAW . It was prepared provisionally to accept that the Government were vicariously responsible for conduct that would qualify as torture under international law . However , international law could be used only to assist in interpreting lacunae or ambiguities in a statute , and when the terms of a statute were clear , the statute had to prevail over international law . The clear language of LAW bestowed immunity upon sovereign GPE for acts committed outside the jurisdiction and , by making express provision for exceptions , it excluded as a matter of construction implied exceptions . As a result , there was no room for an implied exception for acts of torture in section CARDINAL(CARDINAL ) of LAW . Moreover , the court was not satisfied on the balance of probabilities that GPE was responsible for the threats made to the applicant after CARDINAL DATE . As a result , the exception provided for by LAW could not apply . It followed that the action against the ORG should be struck out .

The applicant appealed and ORG examined the case on DATE . The court held that the applicant had not established on the balance of probabilities that ORG was responsible for the threats made in GPE . The important question was , therefore , whether ORG immunity applied in respect of the alleged events in GPE . Lord Justice PERSON finding against the applicant , observed :

“ Jurisdiction of the NORP court in respect of foreign GPE is governed by LAW DATE . LAW ) provides :

‘ A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this LAW . ... ’

... The only relevant exception is section CARDINAL , which provides :

‘ A ORG is not immune as respects proceedings in respect of

( a ) death or personal injury ... caused by an act or omission in GPE

It is plain that the events in GPE do not fall within the exception in section CARDINAL , and the express words of CARDINAL provide immunity to LAW . Despite this , in what [ counsel ] for the Plaintiff acknowledges is a bold submission , he contends that that section must be read subject to the implication that the ORG is only granted immunity if it is acting within ORG . So that the section reads : ‘ A ORG acting within ORG is immune from jurisdiction except as provided ... ’

... The argument is ... that international law against torture is so fundamental that it is a jus cogens , or compelling law , which overrides all other principles of international law , including the well - established principles of sovereign immunity . No authority is cited for this proposition . ... At common law , a sovereign ORG could not be sued at all against its will in the courts of this country . LAW , by the exceptions therein set out , marks substantial inroads into this principle . It is inconceivable , it seems to me , that the draughtsman , who must have been well aware of the various international agreements about torture , intended section CARDINAL to be subject to an overriding qualification .

Moreover , authority in GPE at the highest level is completely contrary to [ counsel for the applicant ’s ] submission . [ Lord ORG referred to the judgments of GPE courts , GPE v. ORG and PERSON v. ORG , cited in paragraph CARDINAL below , in both of which the court rejected the argument that there was an implied exception to the rule of ORG immunity where the ORG acted contrary to ORG . ] ... [ Counsel ] submits that we should not follow the highly persuasive judgments of the NORP courts . I can not agree .

... A moment ’s reflection is enough to show that the practical consequences of the Plaintiff ’s submission would be dire . The courts in GPE are open to all who seek their help , whether they are NORP citizens or not . A vast number of people come to this country DATE seeking refuge and asylum , and many of these allege that they have been tortured in the country whence they came . Some of these claims are no doubt justified , others are more doubtful . Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task , but at least they know much of the background and surrounding circumstances against which the claim is made . The court would be in no such position . GPE would be unlikely to submit to the jurisdiction of the GPE court , and in its absence the court would have no means of testing the claim or making a just determination . ... ”

The other CARDINAL members of ORG , Lord Justice Ward and Mr Justice PERSON , also rejected the applicant ’s claim . Lord Justice PERSON commented that “ there may be no international forum ( other than the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn ) where this terrible , if established , wrong can receive civil redress ” .

On DATE the applicant was refused leave to appeal by ORG . His attempts to obtain compensation from the NORP authorities via diplomatic channels have proved unsuccessful .

There is no rule under LANGUAGE law requiring a plaintiff to be resident in GPE or to be a NORP national before the NORP courts can assert jurisdiction over civil wrongs committed abroad . Under the rules in force at the time the applicant issued proceedings , the writ could be served outside the territorial jurisdiction with the leave of the court when the claim fell within CARDINAL or more of the categories set out in order CARDINAL , Rule CARDINAL of the Rules of ORG . For present purposes only Rule CARDINAL(f ) is relevant :

“ ... service of a writ out of the jurisdiction is permissible with the leave of the court if , in the action begun by the writ ,

( f ) the claim is founded on a tort and the damage was sustained , or resulted from an act committed , within the jurisdiction ... ”

NORP The relevant parts of LAW DATE provide :

“ CARDINAL . ( CARDINAL ) A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this Act .

A ORG is not immune as regards proceedings in respect of-

( a ) death or personal injury ;

caused by an act or omission in GPE ... ”

The above provision ( section CARDINAL of LAW ) was enacted to implement the DATE LAW ( “ the Basle Convention ” ) , a ORG instrument , which entered into force on DATE after its ratification by CARDINAL States . It has now been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL other ORG ( GPE ) . LAW provides :

“ A ORG can not claim immunity from the jurisdiction of a court of ORG in proceedings which relate to redress for injury to the person or damage to tangible property , if the facts which occasioned the injury or damage occurred in the territory of the ORG of forum , and if the author of the injury or damage was present in that territory at the time when those facts occurred . ”

LAW provides that a Contracting State shall be entitled to immunity if the proceedings do not fall within the stated exceptions .

In its Report on Jurisdictional Immunities of States and their Property ( DATE ) , the working group of ORG ( ILC ) found that over DATE a number of civil claims had been brought in municipal courts , particularly in GPE and GPE , against foreign governments , arising out of acts of torture committed not in the territory of the forum ORG but in the territory of the defendant and other GPE . The working group of the ORG found that national courts had in some cases shown sympathy for the argument that GPE are not entitled to plead immunity where there has been a violation of human rights norms with the character of jus cogens , although in most cases the plea of sovereign immunity had succeeded . The working group cited the following cases in this connection : ( GPE ) PERSON v. State of GPE CARDINAL International Law Reports CARDINAL at CARDINAL ; ( GPE ) ORG and Auditor General v. Sir PERSON [ DATE ] CARDINAL ORG CARDINAL , particularly at CARDINAL ( per PERSON ) ; Dissenting Opinion of Justice Wald in GPE ) Princz v. GPE CARDINAL F DATE ( DC Cir . DATE ) at CARDINAL ; PERSON v. ORG ( CARDINALth Cir . DATE ) ; GPE v. PERSON Shipping Corporation CARDINAL US CARDINAL ( DATE ) ; GPE v. PERSON CARDINAL International Law Reports CARDINAL .

The working group of the ORG did , however , note CARDINAL recent developments which it considered gave support to the argument that a ORG could not plead immunity in respect of gross human rights violations . CARDINAL of these was the ORG of Lords’ judgment in ex parte PERSON ( No . CARDINAL ) ( see paragraph CARDINAL below ) . The other was the amendment by GPE of its LAW ( FSIA ) to include a new exception to immunity . This exception , introduced by section CARDINAL of the Anti - Terrorism and Effective Death Penalty Act of DATE , applies in respect of a claim for damages for personal injury or death caused by an act of torture , extra - judicial killing , aircraft sabotage or hostage - taking , against a ORG designated by the Secretary of ORG as a sponsor of terrorism , where the claimant or victim was a national of GPE at the time the act occurred .

In its judgment in PERSON v. ORG ( CARDINAL PERSON . DATE ( D.D.C. CARDINAL ) ) , ORG for GPE confirmed that the property of a foreign ORG was immune from attachment or execution , unless the case fell within CARDINAL of the statutory exceptions , for example that the property was used for commercial activity .

LAW provides in DATE that “ No person shall be put to torture ” .

DATE Rights CARDINAL states :

“ No one shall be subjected to torture or cruel , inhuman or degrading treatment or punishment . ”

Article CARDINAL of LAW DATE states as relevant :

“ No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . ”

The United Nations CARDINAL Declaration on ORG from Being Subjected to Torture and other Cruel , Inhuman or Degrading Treatment or Punishment provides in Article CARDINAL that :

“ No State may permit or tolerate torture and other cruel inhuman or degrading treatment or punishment . ”

In the United Nations Convention against Torture and Other Cruel , Inhuman and Degrading Treatment or Punishment , adopted on DATE ( “ the ORG Convention ” ) , torture is defined as :

“ For the purposes of this Convention , the term ‘ torture’ means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions . ”

The UN Convention requires by LAW that ORG is to take effective legislative , administrative , judicial or other measures to prevent torture in any territory under its jurisdiction , and by DATE that all acts of torture be made offences under each ORG ’s criminal law .

In its judgment in Prosecutor v. PERSON ( DATE , case no . IT-CARDINAL - CARDINAL/I - T , ( DATE ) CARDINAL ORG CARDINAL ) , ORG for the Former GPE observed as follows :

“ CARDINAL . It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right , which can never be derogated from , not even in time of emergency ... This is linked to the fact , discussed below , that the prohibition on torture is a peremptory norm or jus cogens . ... This prohibition is so extensive that GPE are even barred by international law from expelling , returning or extraditing a person to another ORG where there are substantial grounds for believing that the person would be in danger of being subjected to torture .

These treaty provisions impose upon GPE the obligation to prohibit and punish torture , as well as to refrain from engaging in torture through their officials . In international human rights law , which deals with ORG responsibility rather than individual criminal responsibility , torture is prohibited as a criminal offence to be punished under national law ; in addition , all GPE parties to the relevant treaties have been granted , and are obliged to exercise , jurisdiction to investigate , prosecute and punish offenders . ...

The existence of this corpus of general and treaty rules proscribing torture shows that the international community , aware of the importance of outlawing this heinous phenomenon , has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals . No legal loopholes have been left .

There exists DATE universal revulsion against torture ... . This revulsion , as well as the importance GPE attach to the eradication of torture , has led to a cluster of treaty and customary rules on torture acquiring a particularly high status in the international , normative system .

... the prohibition of torture imposes on GPE obligations erga omnes , that is , obligations owed towards all the other members of the international community .

... the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order . Because of the importance of the values it protects , this principle has evolved into a peremptory norm or jus cogens , that is , a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ ORG customary rules . The most conspicuous consequence of this higher rank is that the principle at issue can not be derogated from by GPE through international treaties or local or special or even general customary rules not endowed with the same normative force .

Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become CARDINAL of the most fundamental standards of the international community . ... ”

Similar statements were made in Prosecutor v. Delacic and Others ( DATE , case no . IT-CARDINAL - CARDINAL-T , § CARDINAL ) and in Prosecutor v. PERSON ( DATE , case nos . IT-CARDINAL - CARDINAL-T and IT-CARDINAL - CARDINAL , § CARDINAL ) .

GPE ratified LAW with effect from DATE .

Section CARDINAL of LAW DATE , which entered into force on DATE , made torture , wherever committed , a criminal offence under GPE law triable in GPE .

In its GPE v. FAC Stipendiary Magistrate and Others , ex parte PERSON ( No . CARDINAL ) , judgment of DATE [ DATE ] Appeal Cases CARDINAL , ORG held that the former President of GPE , Senator PERSON , could be extradited to GPE in respect of charges which concerned conduct that was criminal in GPE at the time when it was allegedly committed . The majority of ORG considered that extraterritorial torture did not become a crime in GPE until section CARDINAL of LAW DATE came into effect . The majority considered that although under Part II of LAW DATE a former head of ORG enjoyed immunity from the criminal jurisdiction of GPE for acts done in his official capacity , torture was an international crime and prohibited by jus cogens ( peremptory norms of international law ) . The coming into force of LAW ( see paragraph CARDINAL above ) had created a universal criminal jurisdiction in all GPE in respect of acts of torture by public officials , and GPE Parties could not have intended that an immunity for ex - heads of ORG for official acts of torture would survive their ratification of LAW . ORG ( and , in particular , Lord PERSON , at p. CARDINAL ) made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign GPE from civil jurisdiction in respect of acts of torture .


FAIRFIELD AND OTHERS v. THE UNITED KINGDOM

The applicants , PERSON , daughter of Mr PERSON , Mr PERSON and Mr PERSON , executors of Mr PERSON 's estate , are GPE nationals , who were born in DATE , DATE and DATE and live in GPE , GPE and GPE respectively . They were represented before the ORG by PERSON , a solicitor practising in GPE .

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

Mr PERSON , born in DATE , was an evangelical NORP who had been preaching for DATE . His religious beliefs were deeply held and he had a desire to convert others to his way of thinking .

During DATE , PERSON had a large double - sided sign made , bearing the words “ Stop Immorality ” , “ Stop Homosexuality ” and “ Stop Lesbianism ” . The sign , attached to a pole , also bore in each corner the words “ PERSON is Lord ” .

Prior to CARDINAL DATE PERSON had on CARDINAL occasion preached in public while displaying the sign and had received a hostile reaction from members of the public , some of whom attempted to deface or destroy the sign .

On TIME , DATE , PERSON travelled by bus into GPE . He covered the sign with a plastic bin liner for the trip as he believed , in light of previous reactions , that it might provoke a disturbance if displayed inside the bus . He then took up position in FAC , a pedestrian area of the town centre , and began preaching , holding up the sign .

A group of CARDINAL people gathered around him , arguing and shouting . Some were angry , others aggressive or distressed ; some threw soil at him . At CARDINAL point , someone tried to snatch the sign away from him and it struck someone on the head . A struggle ensued during which PERSON fell to the ground . He got up and continued preaching , holding up the sign . At this point , someone poured water over his head .

CARDINAL police constables , PERSON and PERSON , arrived at the scene . PC PERSON found the crowd to be angry , agitated and insulted . She asked PERSON to put away the sign and leave . He refused . He declared that he was aware that people found the sign insulting as he had had a similar reaction previously . PC PERSON was of the opinion that it was not necessary for the police to take any action . PC PERSON took the view that he was provoking violence and arrested him for breach of the peace .

On DATE PERSON was charged with an offence under LAW DATE , in that he had displayed a sign which was threatening , abusive or insulting within the hearing or sight of a person likely to be caused harassment , alarm or distress , contrary to section CARDINAL ) of the LAW .

The case was heard before magistrates on CARDINAL and DATE . On DATE the magistrates convicted PERSON , finding that he had known that insult , distress and disturbance were likely to be caused but had refused to put away the sign or leave when requested . He was fined MONEY , with prosecution costs . The sign was confiscated .

PERSON appealed to ORG by way of case stated . In their statement of case dated DATE , amended on DATE , the magistrates declared that they had considered his Convention rights but found that there had been a pressing social need to restrict his freedom of expression to prevent disorder . They gave the following reasons .

( a ) The words displayed on the sign were in fact insulting and caused distress to persons who were present .

( b ) The appellant was aware that the words on the sign were insulting ; he admitted this to PC PERSON . His awareness was also demonstrated by his covering the sign with a black plastic bin liner while travelling on the bus and acknowledging that he had received a similar reaction in the past .

( c ) The restriction on the appellant 's right to freedom of expression had the legitimate aim of preventing disorder in view of the reaction of people in the crowd to the sign .

( d ) There was a pressing social need for the restriction and the restriction corresponded to that need . The words on the appellant 's sign were directed specifically towards the homosexual and lesbian communities , implying that they were immoral and there was a need to show tolerance towards all sections of society . The sign was displayed in the town centre on a DATE TIME , provoking hostility from members of the public .

( e ) The interference with the appellant 's right to freedom of expression by prosecuting him was a proportionate response in view of the fact that his behaviour went beyond legitimate protest , was provoking violence and interfered with the rights of others .

( f ) Although the appellant knew that insult , distress and disturbance were likely to be caused by using the placard , having received a similar reaction in the past , he refused to put away the sign or leave at PC PERSON 's request .

On DATE PERSON died . The executors of his estate were granted permission on DATE to continue the appeal .

After a hearing on DATE , ORG dismissed the appeal .

Lord Justice May held , inter alia :

“ ... The essential grounds of appeal ... are firstly that the justices were wrong and misdirected themselves in finding that the words on the sign were insulting and secondly , that a proper reading of Articles CARDINAL and CARDINAL of the ORG should have led to the conclusion that the appellant should have been acquitted of this offence . The precise intellectual route by means of which that , it is submitted , should be achieved can , in my judgment , be addressed by reference to the question of reasonableness . ...

... It is submitted that no reasonable tribunal of fact could conclude that the words on the sign went beyond legitimate expression and that they were something more than an affront or disrespectful is not sustained . There is no element of stereotyping , no element of gratuitous or gross abuse . ...

... I have not found this question easy because it is certainly correct that the words on the sign are short and , so far as they go , are not expressed in intemperate language . ... but I come to the clear conclusion that it was open to the magistrates to reach the conclusion they did , not least because the words appear to relate homosexuality and lesbianism with immorality . The justices themselves take this into consideration when they say that the words on the appellant 's sign were directed specifically towards the homosexual and lesbian community , implying that they were immoral . Accordingly , not without hesitation , I have reached the conclusion that it was open to the justices to reach the conclusion ... that these words on the sign were , in fact , insulting .

I have also considered whether in light of LAW , in particular but also taking account of LAW , the justices should have concluded that Mr Hammond had established that his conduct was reasonable . He was , after all , according to his understanding , exercising his right of freedom of expression of views which may or may not have been acceptable to those who were passing by but , nevertheless , one had to bear in mind the cardinal importance of freedom of expression in a society such as ours . Nevertheless , I have concluded that the justices in their reasons have not only considered the questions which they were obliged to consider ... and have reached a conclusion that it was open to them to reach , for the reasons they gave , that the appellant 's conduct was not reasonable . ”

ORG refused to certify that a point of law of public importance arose to be considered by ORG . Its decision was therefore final .

The relevant parts of LAW provide :

“ ( CARDINAL ) A person is guilty of an offence if he –

( b ) displays any writing or sign or other visible representation which is threatening , abusive or insulting ,

within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby .

( CARDINAL ) It is a defence for the accused to prove –

( c ) that his conduct was reasonable . ”

Section CARDINAL is relevant as regards the mental element . Section CARDINAL ) provides :

“ A person is guilty of an offence under section CARDINAL only if he intends his words or behaviour , or the writing , sign or other visible representation , to be threatening , abusive or insulting , or is aware that it may be threatening , abusive or insulting or ( as the case may ) he intends his behaviour to be or is aware that it may be disorderly . ”


COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE KOKKELVISSERIJ U.A. v. THE NETHERLANDS

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant , PERSON , is an association based in GPE , the GPE . The applicant association was represented before the ORG by PERSON , a lawyer practising in GPE ( GPE ) and GPE ( the GPE ) .

The applicant association is comprised of individuals and enterprises engaged in mechanical cockle fishing in waters including , prior to the events complained of , LOC .

LOC is a tidal wetlands area linked directly to LOC . The western part belongs to the internal waters of the GPE . It provides feeding and breeding grounds for a variety of wildlife including a number of species of molluscs and seabirds . With the exception of passages left open for shipping and military training grounds , it is subject to an environmental protection regime under domestic law .

In the part of LOC under the sovereignty of the GPE , the regime was defined at the relevant time by decrees issued under the CARDINAL LAW ( Natuurbeschermingswet ) . LAW of that LAW made activities , including the catching and killing of animals in protected areas , subject to the granting of a licence by ORG ( Minister PERSON , PERSON ) .

The cockle ( cerastoderma edule or cardium edule ) is an edible bivalve mollusc found in tidal flats and on the seabed in shallow coastal waters . Its natural predators in LOC include several bird species , particularly eider ducks ( somateria mollissima ) and oystercatchers ( haematopus ostralegus ) .

Cockles are fished commercially , using both manual and mechanical methods : the mechanical techniques used are dredging and suction .

On DATE the Deputy Minister ( Staatssecretaris ) of Agriculture , Nature Conservation and Fisheries ( “ the Deputy Minister ” ) granted a licence to the applicant association entitling its members collectively to a total catch of CARDINAL tonnes of cockle meat from LOC over a period of CARDINAL in the following autumn .

On DATE LOC , also known as PERSON ) , a nongovernmental organisation whose stated aim was to protect the LOC environment , lodged an objection ( bezwaar ) on its own behalf and on behalf of another non - governmental organisation , ORG ( PERSON , also called PERSON ) . The ORG stated , in so far as relevant to the case before the ORG , that mechanical cockle fishing caused long - term and possibly irreversible damage to ecologically vulnerable areas and that the quota set was too high in relation to the feeding needs of seabirds , including oystercatchers .

On DATE the Deputy Minister gave a decision dismissing the objection as unfounded , on the grounds that much of LOC was closed to mechanical cockle fishing ; at all events , in the absence of empirical evidence , it was not established that the effects of such fishing were irreversible . The estimated quantities of cockles in DATE were such that there was no need to reserve them all for DATE , particularly since the birds could also feed on protected mussel banks .

ORG appealed against that decision to ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) .

On DATE the Deputy Minister granted a licence to the applicant association entitling its members collectively to a total catch of up to QUANTITY of cockle meat from LOC over a period of CARDINAL in DATE .

On DATE LOC lodged an objection , again acting on its own behalf and on behalf of ORG . It mainly restated the grounds of its objection of CARDINAL DATE . A serious reduction in the numbers of eider ducks and oystercatchers had been noted in DATE , presumably as a result of the partial destruction of their feeding grounds . In addition , the Deputy Minister ’s decision was incompatible with LAW DATE on the conservation of natural habitats and of wild fauna and flora ( “ the Habitats Directive ” – see below ) , which required a stricter assessment of the likely environmental effects than the applicable domestic legislation .

On DATE the Deputy Minister dismissed the objection as unfounded . He dismissed the argument that the environmental impact assessment was incompatible with the Habitats Directive , since in his view the assessment under the applicable domestic legislation was equivalent in scope and was based on the latest available scientific information . No grounds for serious concern as to possible irreversible environmental damage had been made out , nor had the reality of the supposed threat to the feeding grounds of eider ducks and oystercatchers been established .

LOC lodged an appeal against that decision also .

ORG joined the cases and held a hearing on DATE . The applicant association appeared as an interested party .

On DATE ORG gave its decision .

It rejected the arguments of the appellant non - governmental organisations in so far as they called into question the Deputy Minister ’s assessment of the likelihood of harm to the LOC environment and wildlife . It accepted , however , that questions arose with regard to the interpretation and application of LAW in the light of the binding substantive standards of ORG law , in particular the LOC Directive . It was therefore necessary to seek a preliminary ruling of ORG of ORG ( “ the ECJ ” ) under LAW establishing ORG ( “ the LAW ” – see below ) .

The questions submitted to the ECJ were the following :

“ PERSON ) Are the words ‘ plan or project’ in LAW CARDINAL of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora to be interpreted as also covering an activity which has already been carried on for DATE but for which an authorisation is in principle granted DATE for a limited period , with a fresh assessment being carried out on each occasion as to whether , and if so in which sections of the area , the activity may be carried on ?

( b ) If the answer to Question CARDINAL ) is in the negative , must the relevant activity be regarded as a ‘ plan or project’ if the intensity of this activity has increased over DATE or an increase in it is made possible by the authorisations ?

CARDINAL ) NORP If it follows from the answer to Question CARDINAL that there is a ‘ plan or project’ within the meaning of Article CARDINAL of the LOC Directive , is LAW to be regarded as a special application of the rules in LAW or as a provision with a separate , independent purpose in the sense that , for example :

( i ) Article CARDINAL § CARDINAL relates to existing use and LAW to new plans or projects ; or

( ii ) Article CARDINAL § CARDINAL relates to management measures and LAW to other decisions ; or

( iii ) Article CARDINAL relates to plans or projects and LAW to other activities ?

( b ) If LAW is to be regarded as a special application of the rules in LAW , can the CARDINAL sub - paragraphs be applicable cumulatively ?

CARDINAL ) Is LAW of the Habitats Directive to be interpreted as meaning that there is a ‘ plan or project’ once a particular activity is likely to have an effect on the site concerned ( and an ‘ appropriate assessment’ must then be carried out to ascertain whether or not the effect is ‘ significant’ ) or does this provision mean that an ‘ appropriate assessment’ has to be carried out only where there is a ( sufficient ) likelihood that a ‘ plan or project’ will have a significant effect ?

( b ) DATE On the basis of which criteria must it be determined whether or not a plan or project within the meaning of LAW of the Habitats Directive not directly connected with or necessary to the management of the site is likely to have a significant effect thereon , either individually or in combination with other plans or projects ?

CARDINAL ) When LAW of the Habitats Directive is applied , on the basis of which criteria must it be determined whether or not there are ‘ appropriate steps’ within the meaning of LAW or an ‘ appropriate assessment’ , within the meaning of LAW , in connection with the certainty required before agreeing to a plan or project ?

( b ) Do the terms ‘ appropriate ORG or ‘ appropriate assessment’ have independent meaning or , in assessing these terms , is account also to be taken of LAW ORG [ LAW ] and in particular the precautionary principle referred to therein ?

( c ) If account must be taken of the precautionary principle referred to in Article CARDINAL § CARDINAL ORG , does that mean that a particular activity , such as the cockle fishing in question , can be authorised where there is no obvious doubt as to the absence of a possible significant effect or is that permissible only where there is no doubt as to the absence of such an effect or where the absence can be ascertained ?

Do LAW or LAW CARDINAL of the LOC Directive have direct effect in the sense that individuals may rely on them in national courts and those courts must provide the protection afforded to individuals by the direct effect of Community law , as was held , inter alia , in Case C-CARDINAL/CARDINAL Peterbroeck [ DATE ] ECR I-CARDINAL ? ”

LOC , ORG , the applicant association , the respondent Government and ORG all submitted observations to the ECJ . Following proceedings in writing , the ECJ held an oral hearing on DATE .

On DATE the Advocate General ’s advisory opinion was read out in public . Its conclusions were as follows :

“ CARDINAL . I propose that the ORG [ i.e. the ECJ ] answer the questions referred for a preliminary ruling by the Raad van State as follows :

( CARDINAL ) The words ‘ plan and project’ in LAW CARDINAL/CARDINAL/EEC of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora also cover an activity which has already been carried on for DATE but for which an authorisation is in principle granted DATE for a limited period .

( CARDINAL ) Article CARDINAL § CARDINAL of Directive CARDINAL lays down the procedure for authorising plans and projects which do not affect the integrity of protection sites , whereas Article CARDINAL § CARDINAL thereof lays down permanent obligations irrespective of the authorisation of plans and projects , namely to avoid deterioration and disturbance which could be significant in relation to the objectives of the directive .

( CARDINAL ) An appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects . Any effect on the conservation objectives has a significant effect on the site concerned .

( CARDINAL ) An appropriate assessment must :

– precede agreement to a plan or project ;

– take account of cumulative effects ; and

– document all adverse effects on conservation objectives .

The competent authorities may agree to a plan or project only where , having considered all the relevant information , in particular the appropriate assessment , they are certain that the integrity of the site concerned will not be adversely affected . This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects .

Where LAW CARDINAL applies to the authorisation of a scheme such authorisation must , in substantive terms , provide the same standard of protection as authorisation granted pursuant to LAW .

( CARDINAL ) Individuals may rely on LAW CARDINAL in so far as avenues of legal redress against measures infringing the above - mentioned provisions are available to them under national law . They may , under the same conditions , rely on Article CARDINAL § CARDINAL of Directive CARDINAL in so far as error of assessment is claimed . An indirect burden on citizens which does not encroach on legal positions protected by Community law does not preclude the recognised ( vertical ) binding of ORG authorities to directly applicable directives . ”

This concluded the oral procedure .

In a letter of CARDINAL DATE the applicant association sought permission to submit a written response to ORG opinion ; it sought , in the alternative , an order for the reopening of the oral procedure , and in the further alternative , some other opportunity to revisit the opinion .

On DATE the ECJ gave an order containing the following reasoning :

“ CARDINAL . To begin with , PO PERSON [ the applicant association ] contends that the positions taken in that opinion are incorrect as to both the facts and the law . In support of its primary and further alternative requests PERSON invokes the right to adversarial proceedings under LAW , signed in GPE on CARDINAL DATE ( hereafter ‘ the Convention’ ) , as construed by ORG . The alternative request is based on LAW . PO PERSON states that it would run counter to the proper conduct of the proceedings to set out the merits of its objections against the Advocate General ’s opinion in its letter of CARDINAL DATE .

It should be pointed out that the Statute of the Court of Justice and ORG make no provision for parties to submit observations in reply to the opinion of ORG ( see the decision of DATE in Case CCARDINAL/CARDINAL Emesa Sugar [ DATE ] ECR ( ORG Reports ) ORG , point CARDINAL ) . This circumstance , however , does not violate a party ’s right to adversarial proceedings flowing from LAW as construed by ORG ( see the above - mentioned ORG decision , points CARDINAL - CARDINAL ) .

PO PERSON ’s request to submit written observations in reply to the opinion of the Advocate General , or to be granted the opportunity otherwise to revisit the opinion , must therefore be rejected .

In view of the purpose of adversarial proceedings , which is to prevent the ORG from being influenced by arguments to which parties have not been able to respond , the ORG may , of its own motion , on a proposal from the Advocate General or at the request of the parties , as applicable , reopen the oral procedure in accordance with LAW if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties ( see the above - mentioned ORG decision , point CARDINAL ) .

In the instant case ORG request contains no precise information indicating that it would be either useful or necessary to reopen the procedure .

PO PERSON ’s request for the reopening of the oral procedure must therefore be dismissed . ”

On DATE the ECJ delivered its judgment . The preliminary ruling which it contained was worded as follows :

“ CARDINAL . Mechanical cockle fishing which has been carried on for DATE but for which a licence is granted DATE for a limited period , with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on , falls within the concept of ‘ GPE or ‘ project’ within the meaning of LAW PERSON of CARDINAL DATE on the conservation of natural habitats and of wild fauna and flora .

Article CARDINAL § CARDINAL of Directive CARDINAL establishes a procedure intended to ensure , by means of a preliminary examination , that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site , while Article CARDINAL § CARDINAL of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive ’s objectives , and can not be applicable concomitantly with LAW .

CARDINAL ) The first sentence of LAW of Directive CARDINAL/CARDINAL must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site ’s conservation objectives if it can not be excluded , on the basis of objective information , that it will have a significant effect on that site , either individually or in combination with other plans or projects .

( b ) Pursuant to the first sentence of LAW of Directive CARDINAL , where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site ’s conservation objectives , it must be considered likely to have a significant effect on that site . The assessment of that risk must be made in the light , inter alia , of the characteristics and specific environmental conditions of the site concerned by such a plan or project .

Under LAW of Directive CARDINAL , an appropriate assessment of the implications for the site concerned of the plan or project implies that , prior to its approval , all the aspects of the plan or project which can , by themselves or in combination with other plans or projects , affect the site ’s conservation objectives must be identified in the light of the best scientific knowledge in the field . The competent national authorities , taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site ’s conservation objectives , are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site . That is the case where no reasonable scientific doubt remains as to the absence of such effects .

Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of LAW CARDINAL/CARDINAL , it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with , even though it has not been transposed into the legal order of the member ORG concerned despite the expiry of the time - limit laid down for that purpose . ”

ORG allowed the participants in the proceedings before it to respond in writing to the judgment of the ECJ . It held a further hearing on DATE at which LOC , ORG , the Deputy Minister and the applicant association were represented .

The applicant association argued that the ECJ had acted ultra vires by finding , as a matter of fact , that mechanical cockle fishing in LOC was to be considered a “ plan ” or a “ project ” within the meaning of LAW of the Habitats Directive ; moreover , that finding had been based on an incorrect assessment of the facts . The applicant association further argued that the judgment of the ECJ should be disapplied , having been delivered following proceedings that violated LAW .

On DATE ORG delivered its judgment . It rejected the argument that the ECJ had acted ultra vires and found that the applicant association had not established that the ECJ had based its judgment on facts other than those set out in ORG own judgment of DATE . Finding it established , in the absence of scientific evidence to the contrary , that the impact of mechanical cockle fishing on natural habitats appeared likely to be “ significant ” , it revoked the cockle - fishing licences issued to the applicant association on the ground that they contravened LAW of the Habitats Directive .

As far as the ORG is aware , mechanical cockle fishing in the GPE waters of LOC has ceased entirely since then .

The provisions of the LAW relevant to the present case provide as follows :

“ ORG and ORG , each within its jurisdiction , shall ensure that in the interpretation and application of LAW the law is observed .

In addition , judicial panels may be attached to ORG under the conditions laid down in Article CARDINALa in order to exercise , in certain specific areas , the judicial competence laid down in this LAW . ”

“ ORG shall consist of CARDINAL judge per member ORG .

ORG shall sit in chambers or in a Grand Chamber , in accordance with the rules laid down for that purpose in the Statute of the Court of Justice .

When provided for in the Statute , ORG may also sit as a full ORG . ”

“ ORG shall be assisted by CARDINAL Advocates General . Should ORG so request , the ORG , acting unanimously , may increase the number of Advocates General .

It shall be the duty of ORG , acting with complete impartiality and independence , to make , in open court , reasoned submissions on cases which , in accordance with LAW , require his involvement . ”

“ The Judges and Advocates General of ORG shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence ; they shall be appointed by common accord of the governments of the member GPE for a term of DATE .

DATE there shall be a partial replacement of the Judges and Advocates General , in accordance with the conditions laid down in the Statute of ORG .

The Judges shall elect the President of ORG from among their number for a term of DATE . He may be re - elected .

Retiring Judges and Advocates General may be reappointed . ... ”

“ 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 ORG and of the ORG [ ORG ] ;

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 Community shall have legal personality . ”

The Statute of the ECJ is in the form of a LAW to LAW . In so far as relevant to the case before ORG , it provides as follows :

“ Before taking up his duties each Judge shall , in open court , take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the ORG . ”

“ The Judges shall be immune from legal proceedings . After they have ceased to hold office , they shall continue to enjoy immunity in respect of acts performed by them in their official capacity , including words spoken or written .

The ORG , sitting as a full ORG , may waive the immunity .

Where immunity has been waived and criminal proceedings are instituted against a Judge , he shall be tried , in any of the member GPE , only by the court competent to judge the members of the highest national judiciary .

Articles CARDINAL to CARDINAL and LAW on the privileges and immunities of ORG shall apply to ORG , without prejudice to the provisions relating to immunity from legal proceedings of ORG which are set out in the preceding paragraphs . ”

“ The ORG may not hold any political or administrative office .

They may not engage in any occupation , whether gainful or not , unless exemption is exceptionally granted by ORG .

When taking up their duties , they shall give a solemn undertaking that , both during and after their term of office , they will respect the obligations arising therefrom , in particular the duty to behave with integrity and discretion as regards the acceptance , after they have ceased to hold office , of certain appointments or benefits .

Any doubt on this point shall be settled by decision of the ORG . ”

“ Apart from normal replacement , or death , the duties of a Judge shall end when he resigns .

Where a Judge resigns , his letter of resignation shall be addressed to the President of the ORG for transmission to the President of the ORG . Upon this notification a vacancy shall arise on the bench .

Save where Article CARDINAL applies , a Judge shall continue to hold office until his successor takes up his duties . ”

“ A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if , in the unanimous opinion of ORG , he no longer fulfils the requisite conditions or meets the obligations arising from his office . The Judge concerned shall not take part in any such deliberations .

The Registrar of the ORG shall communicate the decision of the ORG to the President of ORG and to the President of the Commission and shall notify it to the President of the ORG .

In the case of a decision depriving a Judge of his office , a vacancy shall arise on the bench upon this latter notification . ”

“ A Judge who is to replace a member of the ORG whose term of office has not expired shall be appointed for the remainder of his predecessor ’s term . ”

“ The provisions of ORG CARDINAL to CARDINAL shall apply to the Advocates General . ”

“ No Judge or Advocate General may take part in the disposal of any case in which he has previously taken part as agent or adviser or has acted for CARDINAL of the parties , or in which he has been called upon to pronounce as a member of a court or tribunal , of a commission of inquiry or in any other capacity .

If , for some special reason , any Judge or Advocate General considers that he should not take part in the judgment or examination of a particular case , he shall so inform the President . If , for some special reason , the President considers that any Judge or Advocate General should not sit or make submissions in a particular case , he shall notify him accordingly .

Any difficulty arising as to the application of this Article shall be settled by decision of the ORG .

“ The procedure before the ORG shall consist of CARDINAL parts : written and oral .

The written procedure shall consist of the communication to the parties ... of applications , statements of case , defences and observations , and of replies , if any , as well as of all papers and documents in support or of certified copies of them .

The oral procedure shall consist of the reading of the report presented by a Judge acting as Rapporteur , the hearing by the ORG of agents , advisers and lawyers and of the submissions of ORG , as well as the hearing , if any , of witnesses and experts .

Where it considers that the case raises no new point of law , the ORG may decide , after hearing ORG , that the case shall be determined without a submission from ORG . ”

“ In the cases governed ... by LAW ... the decision of the court or tribunal of a member ORG which suspends its proceedings and refers a case to the ORG shall be notified to the ORG by the court or tribunal concerned . The decision shall then be notified by the Registrar of the ORG to the parties , to the member GPE and to the Commission , and also to the ORG or to ORG if the act the validity or interpretation of which is in dispute originates from CARDINAL of them , ...

Within DATE of this notification , the parties , the member GPE , the ORG and , where appropriate , ... the ORG ... shall be entitled to submit statements of case or written observations to the ORG .

In so far as relevant to the present case , the provisions of the ECJ ’s Rules of Procedure ( Official Journal of ORG L CARDINAL of CARDINAL July DATE , p. CARDINAL , as amended and corrected ) read as follows :

“ CARDINAL . The Advocate General shall deliver his opinion orally at the end of the oral procedure .

After the Advocate General has delivered his opinion , the President shall declare the oral procedure closed . ”

“ The ORG may , after hearing ORG , order the reopening of the oral procedure . ”

In its order of CARDINAL DATE in Case C-CARDINAL/CARDINAL Emesa Sugar [ DATE ] ECR I-CARDINAL , the ECJ held as follows :

“ CARDINAL . In its judgment in GPE v. GPE , cited above , ORG found that the procureur général ’s department at ORG had as ‘ its main duty , at the hearing as at the deliberations , ... to assist ORG and to help ensure that its case - law is consistent’ ( paragraph CARDINAL ) ‘ with the strictest GPE ( paragraph CARDINAL ) ; it also considered that ‘ great importance must be attached to the part actually played in the proceedings by the member of the procureur général ’s department , and more particularly to the content and effects of his submissions . These contain an opinion which derives its authority from that of the procureur général ’s department itself [ in the NORP version , ‘ ministère public’ ] . Although it is objective and reasoned in law , the opinion is nevertheless intended to advise and accordingly influence ORG ( paragraph CARDINAL ) .

The [ NORP ] Court of Human Rights went on to consider that ‘ the fact that it was impossible for Mr PERSON to reply to them [ the submissions ] before the end of the hearing infringed his right to adversarial proceedings . That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed , even by an independent member of the national legal service [ in the NORP version , ‘ magistrat indépendant’ ] , with a view to influencing the court ’s GPE . Accordingly , the [ NORP ] Court of Human Rights found that this fact in itself amounted to a breach of LAW [ of LAW ] ( paragraph CARDINAL ) ( see also , to the same effect , the judgments of : CARDINAL DATE in PERSON v. GPE , Reports of Judgments and Decisions PERSON , p. CARDINAL , paragraphs CARDINAL to CARDINAL ; DATE in GPE v. GPE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL , paragraphs CARDINAL to CARDINAL ; DATE in PERSON the GPE , Reports of Judgments and Decisions CARDINAL , p. CARDINAL , CARDINAL and CARDINAL ; and DATE in K.D.B. v. the GPE , Reports of Judgments and Decisions DATE , p. CARDINAL , paragraphs CARDINAL and CARDINAL ) .

Emesa takes the view that this case - law applies to the opinion delivered before the ORG by the Advocate General and accordingly seeks leave to reply to it .

As the ORG has consistently held , fundamental rights form an integral part of the general principles of law , the observance of which it ensures ( see , in particular , opinion CARDINAL of DATE [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) . For that purpose , the ORG draws inspiration from the constitutional traditions common to the member ORG and from the guidelines supplied by international treaties for the protection of human rights on which the member GPE have cooperated or of which they are signatories . The LAW has special significance in that respect ( see , in particular , Case C-CARDINAL/CARDINAL ORG [ DATE ] ORG , paragraph CARDINAL ) .

NORP Moreover , those principles have been incorporated in LAW , according to which ‘ 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 the member GPE , as general principles of Community law’ . According to LAW , the ORG is to ensure that this provision is applied ‘ with regard to action of the institutions , in so far as [ it ] has jurisdiction under the Treaties establishing ORG and under [ the ] LAW [ on NORP Union]’ .

It is also appropriate to recall the status and role of the Advocate General within the judicial system established by LAW and by LAW of ORG , as set out in detail in ORG .

In accordance with Articles CARDINAL and CARDINAL of LAW , ORG consists of ORG and is assisted by Advocates General . LAW lays down identical conditions and the same procedure for appointing both Judges and Advocates General . In addition , it is clear from Title I of LAW of ORG , which , in law , is equal in rank to the LAW itself , that the Advocates General have the same status as the ORG , particularly so far as concerns immunity and the grounds on which they may be deprived of their office , which guarantees their full impartiality and total independence .

NORP Moreover , the Advocates General , none of whom is subordinate to any other , are not public prosecutors nor are they subject to any authority , in contrast to the manner in which the administration of justice is organised in certain member GPE . They are not entrusted with the defence of any particular interest in the exercise of their duties .

The role of the Advocate General must be viewed in that context . In accordance with LAW , his duty is to make , in open court , acting with complete impartiality and independence , reasoned submissions on cases brought before ORG , in order to assist ORG in the performance of the task assigned to it , which is to ensure that in the interpretation and application of the LAW , the law is observed .

Under LAW of LAW of ORG and LAW , the opinion of the Advocate General brings the oral procedure to an end . It does not form part of the proceedings between the parties , but rather opens the stage of deliberation by ORG . It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the ORG or which ‘ derives its authority from that of the procureur général ’s department [ in the NORP version , ‘ ministère PERSON ( judgment in PERSON v. GPE , cited above , paragraph CARDINAL ) . Rather , it constitutes the individual reasoned opinion , expressed in open court , of a member of ORG itself .

The Advocate General thus takes part , publicly and individually , in the process by which the ORG reaches its judgment , and therefore in carrying out the judicial function entrusted to it . Furthermore , the opinion is published together with the ORG ’s judgment .

Having regard to both the organic and the functional link between the Advocate General and the ORG , referred to in DATE of this order , the aforesaid case - law of ORG does not appear to be transposable to the opinion of ORG .

NORP Moreover , given the special constraints inherent in Community judicial procedure , connected in particular with its language regime , to confer on the parties the right to submit observations in response to the opinion of ORG , with a corresponding right for the other parties ( and , in preliminary ruling proceedings , which constitute the majority of cases brought before the ORG , all the member GPE , the ORG and the other institutions concerned ) to reply to those observations , would cause serious difficulties and considerably extend the length of the procedure .

Admittedly , constraints inherent in the manner in which the administration of justice is organised within the ORG can not justify infringing a fundamental right to adversarial procedure . However , no such situation arises in that , with a view to the very purpose of adversarial procedure , which is to prevent the ORG from being influenced by arguments which the parties have been unable to discuss , the ORG may of its own motion , on a proposal from the Advocate General or at the request of the parties , reopen the oral procedure , in accordance with LAW , if it considers that it lacks sufficient information , or that the case must be dealt with on the basis of an argument which has not been debated between the parties ( see , in particular , with regard to the reopening of the oral procedure , the order of DATE in LOC and Others , not published in the ECR , and the judgment of DATE in Case C-CARDINAL/CARDINAL PERSON and Others [ DATE ] ECR GPE ; the order of DATE in Case C-CARDINAL/CARDINAL Meng , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL/CARDINAL Meng [ DATE ] ECR ICARDINAL ; the order of DATE in Case C-CARDINAL/CARDINAL Peterbroeck , not published in the ECR , and the judgment of DATE in Case C-CARDINAL/CARDINAL Peterbroeck [ DATE ] ECR I-CARDINAL ; the order of DATE in Case PERSON , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL/CARDINAL PERSON [ DATE ] ORG ; and the order of CARDINAL DATE in Case C-CARDINAL/CARDINAL Verkooijen , not published in the ECR ) .

In the instant case , however , ORG ’s application does not relate to the reopening of the oral procedure , nor does it rely on any specific factor indicating that it would be either useful or necessary to do so . ”

On DATE Advocate General PERSON delivered an opinion in Case C-CARDINAL/CARDINAL Government of ORG and Walloon Government v. ORG . It included the following passage ( footnote reference omitted , emphasis added ) :

“ CARDINAL . ... I am fully conscious of the fact that , in the present case , CARDINAL member ORG ... has intervened . It would seem desirable for a proper exploration of the elements that I have canvassed above to take place against the background of fuller participation from the member GPE and ( as a corollary ) a more developed presentation by the Commission . It might be that , on more detailed examination , the prima facie case that I have outlined above is refuted .

The ORG would not , I suspect , wish to decide such a fundamental point in the present case ( unless , of course , it decides to reopen the oral procedure and invite member PERSON to make their views on this issue known ) ; and I do not see an overriding need for it to do so . ... ”

Article CARDINAL of the Habitats Directive provides :

“ CARDINAL . For special areas of conservation , member GPE shall establish the necessary conservation measures involving , if need be , appropriate management plans specifically designed for the sites or integrated into other development plans , and appropriate statutory , administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in GPE I and the species in GPE present on the sites .

Member GPE shall take appropriate steps to avoid , in the special areas of conservation , the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated , in so far as such disturbance could be significant in relation to the objectives of this Directive .

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon , either individually or in combination with other plans or projects , shall be subject to appropriate assessment of its implications for the site in view of the site ’s conservation objectives . In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph CARDINAL , the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and , if appropriate , after having obtained the opinion of the general public .

PERSON If , in spite of a negative assessment of the implications for the site and in the absence of alternative solutions , a plan or project must nevertheless be carried out for imperative reasons of overriding public interest , including those of a social or economic nature , the member ORG shall take all compensatory measures necessary to ensure that the overall coherence of DATE is protected . It shall inform the Commission of the compensatory measures adopted .

Where the site concerned hosts a priority natural habitat type and/or a priority species , the only considerations which may be raised are those relating to human health or public safety , to beneficial consequences of primary importance for the environment or , further to an opinion from the ORG , to other imperative reasons of overriding public interest . ”