Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising 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 was tried by a criminal court , apparently having been charged with theft . On DATE , before the judgment in the criminal case had been delivered , a newspaper , NORP Postimees , published an article entitled ‘ Gang of Thieves on Trial’ ( Vargajõuk kohtu all ) . According to the applicant the article gave the impression that the accused were guilty although they had not yet been convicted .

The applicant brought a civil suit against NORP ORG , the public limited company that published the newspaper . He claimed CARDINAL kroons ( EEK ) ( MONEY ( ORG ) ) . On DATE ORG dismissed his claim . An appeal was dismissed by ORG by a judgment of DATE . The applicant received the judgment on DATE . An appeal to ORG could be filed within DATE of the receipt of the judgment , that is , by DATE at the latest .

On DATE ORG received a request from the applicant for an extension of the time - limit for appeal , together with a request for legal aid .

On DATE ORG granted the applicant legal aid for lodging an appeal with ORG . ORG decision was sent to the applicant and to ORG ( ORG ) so that the latter could appoint a lawyer for him . The applicant ’s address was given in the decision . It was explained in the decision that it was not possible to extend the time - limit for filing the appeal but it was possible to request the restoration of the time - limit after its expiry if good reason existed for the failure to comply with it .

By a letter of DATE ORG juhatus ) sent ORG decision to the law office of the advocate who had been appointed , NORP , who received the letter on DATE . The applicant was not informed that the advocate had been appointed for him . R. neither contacted the applicant nor filed an appeal with ORG .

According to different documents in the case file , the applicant became aware of the name and contact details of the appointed lawyer , NORP , either at DATE when he telephoned ORG , or on DATE when he telephoned ORG .

On DATE the applicant also telephoned NORP

According to the applicant , NORP said that the time - limit for an appeal to ORG had already passed and she was no longer dealing with the case . The applicant himself should have sought to contact her . She had no time to meet the applicant on DATE .

According to NORP she had been unable to take any steps to lodge an appeal against ORG judgment without having met the applicant . She proposed a meeting for DATE but this was not suitable for the applicant , who said that he had to leave for GPE to start a new job on that date .

On DATE the applicant made a complaint to ORG ( aukohus ) of ORG against NORP

NORP was contacted by ORG on DATE and was advised to file a request with ORG for the restoration of the time - limit for appeal . She filed the request , sent a copy to the applicant and requested the latter to contact her and pay the security for appeal .

On DATE the applicant requested that ORG suspend the proceedings as NORP had filed a request for restoration of the time - limit with ORG .

On DATE ORG sent a letter to NORP noting that according to LAW GPE seadustik ) the appeal itself had to be lodged together with the request for restoration of the time - limit . Moreover , security had to be paid . On that basis ORG returned the application to NORP The applicant was not informed thereof .

It appears that in DATE the applicant , having telephoned the offices of different courts , learned of ORG letter and the fact that the case file had been sent back to the first - instance court as no appeal had been lodged and no security had been paid . On DATE the applicant asked ORG to resume the examination of his complaint against NORP He also requested that a new lawyer be appointed for him .

ORG examined the matter on DATE . It considered that a decision to grant legal aid had to be communicated to the applicant as well as to the lawyer who had been appointed . However , such an obligation could not be placed on the lawyer ; nor was a lawyer responsible for paying the security for appeal . ORG found that NORP had not committed a disciplinary offence and decided not to initiate proceedings in respect of her . It informed the applicant that it was not within its powers to appoint a new lawyer for him and that he could still turn to NORP for legal assistance . It also informed ORG of the circumstances relating to the informing of an applicant about the appointment of a legal - aid lawyer .

According to the applicant he attempted to contact NORP by telephone and by letter ; this having proved unsuccessful , on DATE he requested ORG to appoint another lawyer and to extend the time - limit for lodging an appeal .

On DATE ORG refused the applicant ’s requests . It noted that a request for legal aid had already been granted by ORG on DATE , that a lawyer to provide him with legal assistance had already been appointed and that there were no grounds for replacing that lawyer as provided for in subsections CARDINAL and CARDINAL of section CARDINAL of LAW . ORG further noted that the applicant ’s lawyer had requested that the time - limit for lodging an appeal be restored but her application had been dismissed and returned to her because she had failed to lodge the corresponding appeal and to pay the security . Finally , ORG pointed out that the appeal had not been attached to the applicant ’s application and that he had also failed to comply with the requirement under LAW of LAW according to which submissions to ORG could only be made through a lawyer . Accordingly , it returned the application to the applicant .

Section CARDINAL(CARDINAL ) of LAW ( PERSON õigusabi seadus ) , as in force at the material time , stipulated that if a legal - aid lawyer was not appointed on the basis of a mutual agreement between him or herself and the claimant the court had to appoint a lawyer who consented thereto , or a lawyer named by ORG , as the provider of ORG legal assistance . It was not specified how the claimant was to be informed thereof .

Section CARDINAL of LAW provided that a lawyer was not allowed to refuse to provide State legal assistance to a person or terminate the provision of legal services to a person before the final adjudication of the matter unless there was a conflict of interests ( section CARDINAL ) of LAW ( Advokatuuriseadus ) ) or if the client ’s claims were unlawful or contrary to the lawyer ’s professional ethics , or the lawyer became aware that a criminal offence was being planned ( sections CARDINAL ) and CARDINAL ) of FAC ) .

According to section CARDINAL of LAW the legal - aid lawyer could be replaced by another lawyer upon the latter ’s consent and the mutual agreement of the original lawyer and the beneficiary of legal aid ( subsection CARDINAL ) . If , arising from law , a lawyer was unable to continue to provide legal services to a beneficiary of ORG legal aid , he or she had to submit to a court an application for the appointment of a new legal - aid lawyer ( subsection CARDINAL ) . Upon the exclusion of such a lawyer from ORG or his or her disbarment , or upon the suspension of the professional activities or the death of the lawyer , a court had to appoint a new lawyer ( subsection CARDINAL ) . Where a lawyer was replaced , the new lawyer had to continue providing legal services to the recipient from the point where the former lawyer had finished ( subsection CARDINAL ) .

Article CARDINAL § CARDINAL of the Code of Civil Procedure ( GPE seadustik ) , as in force until DATE , provided that an appeal against a judgment of an appeal court could be filed within DATE of the judgment being made public , or within DATE of receipt of a copy of the judgment if the judgment was given in written proceedings .

On DATE a new Code of Civil Procedure ( CARDINAL Code ) entered into force . Article CARDINAL § CARDINAL of the CARDINAL Code provided that an appeal in cassation was to be submitted within DATE of the date on which the judgment was served on the appellant in cassation .

LAW provided that a party to litigation could perform procedural acts and submit requests and applications to ORG only through a lawyer ( advokaat ) .

Article CARDINAL § CARDINAL of the CARDINAL Code provided that when a request was made for the restoration of a time - limit , the procedural act for which the restoration was requested had to be performed at the same time .

LAW provided that a request for restoration of a time - limit could be filed within DATE of the date on which the impediment which had hindered the participant to the proceedings in the performance of the procedural act ceased to exist , but not DATE after the expiry of the time - limit .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a sentence of imprisonment ( gevangenisstraf ) in FAC , the GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

CARDINAL

NORP The applicant was a businessman . DATE and DATE he purchased quantities in excess of QUANTITY of the chemical thiodiglycol in GPE and GPE , and , acting through companies based in a variety of countries , he supplied it to ORG . After DATE he was ORG sole supplier of this substance .

Thiodiglycol is a precursor in a chemical reaction at the final stage of formation of CARDINAL . CARDINAL of a group of compounds known as sulphur mustards and better known as mustard gas , ORG has severe vesicant properties . In contact with the skin , it causes severe and potentially lethal chemical burns ; in contact with the eyes , it causes inflammation possibly resulting in blindness ; if inhaled , it blisters mucous membrane and lung tissue and can cause pulmonary oedema . Its known long - term effects on survivors include an increased risk of cancer in later life . Mustard gas , so called because of its smell , was first used as a battlefield weapon during the First World War , at the Third Battle of Ypres ( DATE ) .

Mustard gas is known to have been used by the NORP military , along with other chemical weapons , against NORP armed forces and civilians during the Iran - Iraq War ( DATE ) and in attacks against the NORP population of northern GPE ( DATE ) . CARDINAL such attack , carried out on the town of GPE in DATE , killed CARDINAL of non - combatant civilians and injured CARDINAL more . Among those later considered primarily responsible were PERSON ( known as PERSON ) , President of GPE from DATE until DATE , and PERSON , Secretary General of ORG in northern GPE DATE , nicknamed “ Chemical Ali ” .

PERSON was charged before the Special Iraqi Tribunal ( later re - named ORG ) with the use of poison gas against NORP civilians in GPE . However , he never stood trial on this charge ; he was hanged on DATE for another crime .

PERSON was tried by ORG on a plurality of charges ; these included the DATE GPE gas attack , in respect of which he was found guilty . He was hanged on DATE .

Charges were brought against the applicant in the GPE which may be summarised as follows :

( CARDINAL ) NORP aiding and abetting genocide committed by named individuals including PERSON and PERSON against the NORP population of northern GPE in a number of places including GPE ;

in the alternative , aiding and abetting violations of the laws and customs of war committed by named individuals including PERSON and PERSON , as regards gas attacks on the NORP population of northern GPE in GPE and elsewhere ; and

( CARDINAL ) NORP aiding and abetting violations of the laws and customs of war committed by named individuals including PERSON and PERSON , as regards gas attacks on the territory of GPE .

The acts constitutive of these crimes were stated to be the supply of various named chemicals , including thiodiglycol , to GPE as well as materials and advice for the manufacture of chemical weapons in violation of international law . The charges referred to several provisions of domestic legislation , including , as relevant to the case before the ORG , section CARDINAL of LAW ( PERSON ) , taken together with LAW ( PERSON ) .

The trial opened before ORG ( rechtbank ) of GPE on DATE . On DATE ORG delivered its judgment . It acquitted the applicant of the first primary charge , aiding and abetting genocide , finding that genocidal intent on his part could not be proved ; but it convicted him on the first alternative charge and the second charge . It sentenced him to DATE in prison and ordered him to pay sums of money in compensation to a number of named individuals who had joined the proceedings as civil parties .

Both the prosecution and the applicant appealed against ORG judgment to ORG ( gerechtshof ) .

NORP In its judgment of CARDINAL DATE , ORG The Hague acquitted the applicant of aiding and abetting genocide as ORG had done . It convicted him , however , of aiding and abetting violations of the laws and customs of war committed by PERSON , PERSON and another person or other persons in a non - international or international conflict as the case might be , as regards gas attacks on the NORP population of northern GPE in GPE and elsewhere ( the first alternative charge ) , and of aiding and abetting violations of the laws and customs of war committed by PERSON , PERSON and another person or other persons in an international conflict , as regards gas attacks on the territory of GPE .

ORG judgment concluded as follows ( translation published by ORG itself ) :

“ CARDINAL Conclusion

Based on the above , the following conclusions can be made :

a ) The defendant played an important part by supplying the precursor Thiodiglycol [ or ORG ] to the NORP regime for the production of mustard gas : PERCENT of this substance had been supplied by him in DATE up to and including DATE . If any ORG would also have been supplied from GPE to GPE in DATE , this fact does not impair the qualification of ' important ' regarding defendant 's part in this matter .

b ) When the supplies by others eventually stopped no later than in the course of DATE , the defendant supplied at least QUANTITY of this precursor until DATE .

c ) The first shipment of ORG supplied by the defendant arrived in GPE towards DATE ; in DATE he supplied a total of QUANTITY . Based on the considerations written under item CARDINAL above , the ORG deems it very likely that in the course of DATE ORG supplied by the defendant was also used for the production and finally ended up in ammunition that was used for the attacks as mentioned in the charges .

Conclusive evidence for his co - responsibility regarding the attacks mentioned in the charges ( in so far as mustard gas was deployed in those attacks ) is the following :

d ) As of DATE , the supplementation of the essential precursor ORG to the NORP regime depended completely on the supplies made by the defendant .

e ) For that reason , the unwholesome policy that was continuously carried out by the regime that from DATE onwards seemed to find it necessary to deploy QUANTITY of this poison gas during combat , depended to a decisive extent if not totally on those supplies .

Taking into consideration the crucial significance that the shipments of ORG supplied by the defendant since DATE had for the chemical weapon program of the regime , the ORG finds the defendant ( together with his co - perpetrators ) guilty of being an accessory to providing the opportunity and the means for the proven attacks with mustard gas in DATE .

Liability to punishment on account of the proven charges

The proven charges constitute a punishable offence :

Regarding the proven charges under count CARDINAL . alternatively :

The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war , while that offence resulted in the death or grievous bodily harm of another person or that offence was an expression of a policy of systematic terror or wrongful actions against the whole population or a specific group thereof , committed several times .

Regarding the proven charges under count CARDINAL :

The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war , while that offence resulted in the death or grievous bodily harm of another person , committed several times .

Liability to punishment of the defendant

No circumstance has become plausible that would rule out the punishability of the defendant . Therefore the defendant is liable to punishment .

Considerations regarding the applicable legislation

The [ War Crimes Act ] which was applicable at the time of the period referred to in the charges , was amended several times afterwards ; following the entry into force of LAW ( ... ) on DATE , the war crimes were devolved from the [ War Crimes Act ] to the [ LAW ] . Only the amendments to the law dated DATE ( ... ) and dated DATE ( ... ) are important when determining whether the later legal provisions are more favourable for the defendant than the law that was applicable during the period referred to in the charges .

Pursuant to ORG dated DATE , a new [ section ] DATE was inserted into the [ War Crimes Act ] , which makes it possible to impose an additional sentence provided by LAW , first paragraph , DATE , of LAW ( deprive a person of his / her active and passive right to vote ) on account of DATE inter alia DATE a conviction for being found guilty of war crimes , while by ORG dated DATE , the death penalty as possible punishment was removed from the [ War Crimes Act ] .

The [ War Crimes Act ] as it reads as of DATE , after the amendment by ORG of DATE , is more favourable to the defendant in terms of an eventual penalty . From the devolvement of the penal provisions that refer to war crimes from the [ War Crimes Act ] to LAW , as from DATE , it can not be said that they result in more favourable provisions for the defendant . Based on the provisions in DATE , paragraph CARDINAL , of LAW , the [ War Crimes Act ] will have to be the starting point as it read on DATE . Furthermore with regards to complicity , the ORG has taken into consideration article DATE , paragraph CARDINAL , of LAW , as it read until DATE ( the date of entry into force of the LAW regarding reassessment of maximum penalties ) . Pursuant to article DATE ) , DATE , paragraph CARDINAL ( old ) , CARDINAL and CARDINAL of LAW and [ section ] CARDINAL of the [ War Crimes Act ] , as it read on DATE , viewed together and in relation to each other , the ORG can not draw any other conclusion than that in this case the defendant is liable to a maximum term of DATE imprisonment .

FAC for the punishment

During the appeal trial , the advocate general moved that the sentence of the court of first instance be set aside and on account of the principal charge under counts CARDINAL . and CARDINAL . he demanded that the defendant be sentenced to a term of imprisonment of DATE , less the period spent in pre - trial detention .

In making its assessment as to what penalty should be imposed , the ORG has taken into account the following considerations .

During DATE the defendant supplied raw material to the NORP regime for the production of chemical weapons . From DATE until DATE , in a total of CARDINAL shipments he supplied at least QUANTITY of LOC ( ORG ) on the basis of CARDINAL Letters of Credit . That substance was used for the production of mustard gas that was deployed during the war in GPE as well as in GPE . By doing so during DATE , the defendant has consciously made a substantial contribution to the continuing violation of the laws and customs of war committed by the NORP regime . Based on NORP criminal law that was applicable at that time , a person who is found guilty of complicity in a criminal offence which carries a life sentence can be sentenced to a term of imprisonment of a maximum of DATE . Seen the fact that the defendant committed the offence of complicity several times , in his case the penalty to be imposed will be a maximum term of DATE imprisonment , which is based on the regulation set out in article CARDINAL , paragraph CARDINAL , of LAW , concerning various offences for which CARDINAL sentence is pronounced .

In determining the punishment in this case , the ORG has taken into account the following circumstances , that on the one hand relate to the seriousness of the offences , the circumstances in which they were committed , as well as the intended purposes of the punishment to be considered when fixing the punishment , and on the other hand the personal circumstances of the defendant .

As results from the case file ( in the period referred to in the charges ) , the NORP regime carried out multiple attacks with ( among others ) mustard gas during the war with GPE on places in that country , as well as on the border region between GPE and GPE , where NORP population groups lived that were suspected of collaboration with the NORP enemy . Those attacks caused the death of CARDINAL of civilians ( that did not participate in the conflict ) and caused permanent and severe health problems to very many persons . It is beyond doubt that the regime in GPE by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by LAW of DATE .

The defendant has made an essential contribution to these violations – at a time that many , if not all other suppliers ' pulled out ' with regard to the increasing international pressure – by supplying many times in the course of DATE ( among other matters ) very large quantities of a precursor for mustard gas ; in doing so the defendant made significant profits . Those supplies enabled the NORP regime to ( almost ) continue their deadly ( air ) attacks in full force during DATE . Apparently the defendant did not give his deliberate support to the afore mentioned gross violations out of sympathy for the targets of the regime , but DATE as it should be assumed – the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions . Even DATE the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks .

The ORG recognizes that the proven offences were committed over DATE and that the defendant is a man of advanced age , who is to be expected to spend a large part of DATE of his life in prison . ORG will only be able to attach limited weight to this slightly mitigating circumstance . In this case the most important aspect concerning the determination of the appropriate sanction – considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant DATE is to point out to the victims and survivors , as well as to the international legal community , how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions .

Finally in fixing the appropriate punishment , the ORG has taken into account the general prevention aspect . People or companies that conduct ( international ) trade , for example in weapons or raw materials used for their production , should be warned DATE if they do not exercise increased vigilance – they can become involved in most serious criminal offences .

It should be made clear to them that they will have to face prosecution and long - term prison sentences , in accordance with the seriousness of the crimes they committed .

Considering all of the above , the ORG concludes that the only suitable and necessary reaction in these circumstances is a non - suspended prison sentence of a very long term as set out below . ”

ORG sentenced the applicant to DATE imprisonment ; however , it rejected the claims of the civil parties as unsuitable for summary decision .

The applicant lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) , submitting a statement of points of appeal on DATE . He argued , referring to section CARDINAL(CARDINAL ) of LAW , that the GPE courts lacked jurisdiction since ORG had not convicted him of aiding and abetting crimes committed in “ time of war ” ( as distinct from non - international or international “ conflict ” ) ; section CARDINAL ) of that Act could not apply , since the conflict , whether international or not , did not in any way involve the GPE . He also alleged a violation of LAW in that the concept of “ laws and customs of war ” as used in LAW CARDINAL of LAW was so vague and uncertain in scope that he could not reasonably have been found to have had the criminal intent to be an accessory to their violation . He further claimed that the DATE LAW and the DATE LAW , as considered relevant by ORG , had become a dead letter in the light of the use of weapons of mass destruction , nuclear in particular , and the widespread use of other indiscriminate weapons such as incendiary bombs and napalm ( which he described as “ chemical weapons ” ) during the Second World War ( DATE ) , the Korean War ( DATE ) and the Vietnam War ( DATE ) . The DATE LAW , moreover , had lost its force , or at the very least could no longer be seen as proof of the existence of customary law given widespread ORG practice to contrary effect .

The Procurator General ( Procureur - Generaal ) at ORG submitted an advisory opinion on DATE . He considered ORG reference to general international law an error which ORG could itself correct ex officio : it was sufficient to refer to the DATE LAW , to the common LAW DATE LAW , and ( in relation to the second charge ) to LAW , all of which had been relied on by ORG as setting out the applicable substantive standards .

The applicant submitted a response to the Procurator General 's opinion on DATE , as permitted by LAW ) . He argued , among other things , that PERSON and PERSON , whose crimes he had supposedly aided and abetted , had at the time been members of the government of a sovereign ORG ( CARDINAL of them its Head of ORG ) and for that reason protected by that ORG 's sovereign immunity . Since the NORP courts had no jurisdiction over them , it followed that they were not entitled to try him as their accessory either .

On DATE the ORG gave judgment dismissing the appeal on points of law . It found that section CARDINAL of LAW conferred universal jurisdiction on NORP courts in respect of the crimes set out in section CARDINAL of that LAW . In response to the applicant 's complaint going to the supposed vagueness of the concept of “ laws and customs of war ” as used in section CARDINAL of LAW , it held as follows :

“ Contrary to the argument made in the point of appeal ( middel ) , section CARDINAL of LAW is not contrary to the ' requirement of specificity ' ( bepaaldheidsgebod ) contained in the statutory and LAW provisions relied upon . In the light , among other things , of the nature of its subject - matter , consisting of the setting of penal sanctions on the severest indictable offences which originate in a common legal consciousness – whether it be set out in laws and treaties or not – , the norm formulated in section CARDINAL of LAW makes it clear enough what behaviour will carry a penal sanction and sufficiently enables the suspect to adjust his behaviour accordingly , even though the nature and content of this provision inevitably entail a certain vagueness in the description of the crime ( een zekere vaagheid in de delictsomschrijving ) . ”

The relevant provisions of domestic law , in the versions applicable and applied in the applicant 's case , read as follows :

Within DATE from the transmission of the copy of the advisory opinion ( of the Procurator General ) the accused 's counsel ... may submit his written comments thereon to ORG . ”

“ The following persons are liable as accessories ( medeplichtigen ) to an indictable offence ( misdrijf ) :

NORP those who intentionally assist in the commission of the indictable offence ;

NORP those who intentionally provide the opportunity , means or information necessary to commit the indictable offence . ”

“ CARDINAL . In the case of complicity as an accessory , the maximum of the principal penalties ( hoofdstraffen ) prescribed for the indictable offence shall be reduced by CARDINAL .

NORP In the case of an indictable offence carrying a sentence of life imprisonment , a term of imprisonment not exceeding fifteen years shall be imposed .

The additional penalties ( bijkomende straffen ) for complicity as an accessory shall be the same as for the indictable offence itself .

NORP Only those acts that were intentionally facilitated or promoted by the accessory ( die de medeplichtige opzettelijk heeft gemakkelijk gemaakt of bevorderd ) , and the consequences of such acts , shall be taken into consideration in sentencing . ”

“ CARDINAL . In the case of a concurrence of criminal acts which must be considered as separate and which constitute CARDINAL indictable offence carrying equivalent principal penalties ( gelijksoortige hoofdstraffen ) , a single sentence shall be imposed .

NORP The maximum sentence shall be the total of the maximum penalties prescribed for the acts ; however , in the case of imprisonment and penal detention ( hechtenis ) , the sentence may not exceed the maximum of the most severe penalty by CARDINAL . ”

“ CARDINAL . The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war , as set out in :

CARDINAL NORP sections CARDINAL - CARDINAL of the present Act ; ...

NORP In the case of an armed conflict that can not be described as war and in which the GPE is involved either for the purpose of individual or collective self - defence or to restore international order and security , sections CARDINAL shall apply by analogy and We [ i.e. the ORG ; that is the Monarch together with the responsible Minister ] may determine by order in council ( algemene maatregel van bestuur ) that the other provisions of the present Act shall apply in whole or in part .

The expression ' war ' shall be understood to include civil war . ”

“ Without prejudice to the relevant provisions of LAW and LAW ( Wetboek van Militair Strafrecht ) , NORP criminal law shall apply to :

CARDINAL anyone who commits the indictable offence set out in [ section ] CARDINAL outside the Realm in LOC ; ...

CARDINAL NORP any GPE national who commits an indictable offence as referred to in CARDINAL outside LOC . ”

“ CARDINAL . Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding DATE ...

A term of imprisonment not exceeding DATE ... shall be imposed :

CARDINAL if the criminal act is liable to result in someone else 's death or cause them severe bodily injury ;

CARDINAL if the criminal act involves inhuman treatment ;

CARDINAL NORP if the criminal act involves forcing someone else to do something , not to do something or suffer something to happen ;

CARDINAL NORP if the criminal act involves looting .

Life imprisonment or a temporary term of imprisonment not exceeding DATE ... shall be imposed :

CARDINAL if the criminal act results in someone else 's death or causes them severe bodily injury or involves rape ;

CARDINAL if the criminal act involves violence by a plurality of persons acting in concert ( geweldpleging met verenigde krachten ) against CARDINAL or more persons or violence against a dead , sick or injured person ;

CARDINAL NORP if the criminal act involves the destruction , damaging , putting beyond use or hiding , by a plurality of persons acting in concert , of any property belonging to someone else in whole or in part ;

CARDINAL NORP if the criminal act set out CARDINAL of the preceding paragraph is committed by a plurality of persons acting in concert ;

CARDINAL NORP if the criminal act is an expression of a policy of systematic terror or unlawful action ( wederrechtelijk optreden ) against the entire population or a particular group thereof ;

CARDINAL if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party ;

CARDINAL if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party . ”

LAW ( Wet internationale misdrijven ) entered into force on DATE , replacing LAW and LAW ( PERSON ) . In relevant part , it provides as follows :

“ CARDINAL . Anyone who commits CARDINAL of the following acts , if committed as a part of a widespread or systematic attack directed against a civilian population , in the knowledge that it is part of such attack , shall be found guilty of a crime against humanity and be liable to life imprisonment or to a term not exceeding DATE ... :

a. wilful killing ;

b. extermination ;

c. enslavement ;

d. deportation or forcible transfer of population ;

e. imprisonment or other serious deprivation of physical liberty contrary to fundamental rules of international law ;

PERSON torture ;

g. rape , sexual slavery , enforced prostitution , forced pregnancy , enforced sterilisation , or any other form of sexual violence of comparable seriousness ;

h. persecution of an identifiable group or collectivity on political grounds , because they belong to a particular race or a particular nationality , on ethnic , cultural or religious grounds , on grounds of gender or on other grounds which are universally recognised as impermissible under international law , in connection with an act referred to in this paragraph or any other crime set out in the present Act ;

i. enforced disappearance of persons ;

PERSON apartheid ;

k. other inhumane acts of a comparable nature deliberately causing serious suffering or serious bodily injury or harm to mental or physical health . ... ”

“ CARDINAL . Anyone who , in an international armed conflict , commits CARDINAL of the serious violations of LAW , namely the following acts if committed against persons protected by the said Conventions :

a. wilful killing ;

b. torture or inhuman treatment , including biological experiments ;

c. wilfully causing great suffering or serious bodily injury or harm to health ;

d. large - scale deliberate and unlawful destruction and appropriation of property in the absence of military necessity ;

e. compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power ;

PERSON deliberately denying a prisoner or war or other protected person the right to a fair trial in accordance with the law ;

g. unlawful deportation and transfer or unlawful confinement ; or

h. taking hostages

shall be liable to life imprisonment or to a term not DATE ...

Anyone who , in an international armed conflict , commits CARDINAL of the following acts :

a. deliberately directing attacks against civilian objects , that is to say objects which are not military objectives ;

b. deliberately initiating an attack knowing that such an attack will cause incidental death or injury to civilians or damage to civilian objects or widespread , long - term and serious damage to the natural environment , and that it will clearly be excessive in relation to the concrete and direct overall military advantage anticipated ;

c. attacks or bombing , by whatever means , of towns , villages , dwellings or buildings which are not being defended and are not military targets ;

d. the transfer , directly or indirectly , by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory ;

e. declaring rights and actions of nationals of a hostile party to be abolished , suspended , or inadmissible in a court of law ;

f. compelling of nationals of a hostile party to take part in hostile acts directed against their own country , even if before the beginning of the war they were in the service of the belligerent party ;

g. the use of poisoned weapons ;

h. the use of asphyxiating , poisonous or other gases and other similar liquids , materials or devices ;

i. the use of bullets which easily expand or flatten or widen in the human body , such as bullets with a hard jacket which leaves the core partially exposed or is incised ;

PERSON outrages ( wandaden ) upon personal dignity , in particular humiliating and degrading treatment ;

k. taking advantage of the location of a civilian or other protected person to secure particular points , areas or forces against military operations ;

l. deliberately making use of the starvation of civilians as a method of waging war by denying them objects which are indispensable to their survival , including deliberately impeding the supply of aid goods as provided for in LAW ;

m. deliberately directing attacks against the civilian population as such or individual civilians who are not directly participating in hostilities ;

n. NORP deliberately directing attacks against buildings , materiel , medical units and transport as well as personnel making use in accordance with international law of the emblems of LAW ;

o. NORP deliberately directing attacks against personnel , installations , materiel , units or vehicles involved in humanitarian aid or peace missions in accordance with the Charter of ORG , as long as they are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict ;

p. deliberately directing attacks against buildings dedicated to religion , education , art , science or charitable purposes , historic monuments , hospitals or places where the sick and wounded are collected , such buildings not being military objectives ;

q. pillaging of a town or a place , even if taken in an attack ;

r. conscripting or enlisting into military service in the national armed forces or groups children under DATE or using them for active participation in hostilities ;

s. denying DATE ;

t. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict ,

shall be liable to a term of imprisonment not DATE ...

If an act as set out in ... the fifth paragraph :

a. DATE results in a person ’s death or causes them severe bodily injury or involves rape ;

b. involves violence by a plurality of persons acting in concert ( geweldpleging in vereniging ) against CARDINAL or more persons or violence against a dead , sick or injured person ;

c. involves the destruction , damaging , putting beyond use or hiding , by a plurality of persons acting in concert , of any property belonging to a person in whole or in part ;

d. involves a plurality of persons acting in concert forcing someone else to do something , not to do something or suffer something to happen ;

e. involves a plurality of persons acting in concert pillaging a town or a place , even if taken in an attack ;

f. involves the breaking of a promise or the breaking of an agreement entered into as such with the adversary ; or

g. involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party

the person found guilty shall be liable to life imprisonment or to a term not exceeding DATE ... ”

Anyone who , in a non - international armed conflict , commits a violation of the common LAW , that is to say the commission against persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed hors de combat by sickness , wounds , detention , or any other cause , of any one of the following acts :

a. violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;

b. taking of hostages ;

c. outrages upon personal dignity , in particular humiliating and degrading treatment ;

d. the passing of sentences and the carrying out of executions without prior judgment pronounced by a lawfully constituted court , affording all the judicial guarantees which are recognised as indispensable by civilised peoples ;

shall be liable to life imprisonment or to a term not DATE ...

Anyone who , in a non - international armed conflict , commits CARDINAL of the following acts :

a. NORP rape , sexual slavery , enforced prostitution , enforced sterilisation , or any other form of sexual violence that can be deemed equally serious as a serious violation of LAW ;

b. forced pregnancy ;

c. subjecting persons who are in the power of an adversary to physical mutilation or medical or scientific experiments , whatever their nature , not justified by medical or dental treatment of the person concerned or his treatment in hospital , nor carried out in his interest , and which result in death or can seriously endanger the health of that person or persons ; or

d. treacherously killing or wounding persons who belong to the hostile nation or army ;

a. deliberately directing attacks against the civilian population as such or against individual civilians who are not participating directly in hostilities ;

b. deliberately directing attacks against buildings , materiel , medical units and transport , as well as personnel making use in accordance with international law of the emblems of LAW [ i.e. ORG , ORG and LOC ] ;

c. deliberately directing attacks against personnel , installations , materiel , units or vehicles involved in humanitarian assistance or peace missions in accordance with LAW , as long as these are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict ;

d. deliberately directing attacks against buildings dedicated to religion , education , art , science or charitable purposes , historic monuments , hospitals and places where the sick and wounded are collected , such buildings not being military objectives ;

e. pillaging of a town or a place , even if taken in an attack ;

PERSON conscripting or enlisting into military service in the national armed forces or groups children under the age of DATE or using them for active participation in hostilities ;

g. denying quarter ;

h. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict ; or

i. giving orders for the displacement of a civilian population for reasons connected with the conflict , not including reasons connected with the security of the civilians involved or in cases of urgent necessity because of cogent circumstances of the conflict ,

shall be liable to a term of imprisonment not DATE ...

The sixth paragraph of section CARDINAL shall apply by analogy to an act as referred to in the third paragraph . ”

NORP In a decision of DATE reported in ORG ( GPE Law Reports ) DATE ( no . CARDINAL ) , ORG held as follows :

“ CARDINAL . That it certainly was the ORG 's intention to comply in full with that treaty obligation [ to criminalise all serious breaches of the CARDINAL DATE LAW ] is apparent from , among other things , the parliamentary history of that LAW , in particular from the Explanatory Memorandum ( PERSON ) and the Memorandum in Reply ( PERSON ) pertaining to the PERSON in question , which respectively include the following passages :

' When another power that is a party to the violated Convention does not request the transfer ( overlevering ) of a prisoner of war who is in the hands of the GPE , it should be possible for him to be tried by a NORP court , even though the indictable offence may have been committed abroad , and even if the criminal act has not been committed against a NORP national or harms no NORP interest . '

and

' The provision enacted in section CARDINAL(CARDINAL ) grants the NORP courts jurisdiction to try war crimes , regardless of by whom and where they have been committed , that is to say also in those cases in which the indictable offence has been committed by a non - NORP national outside the GPE in a war to which our country is not a party . It is rightly pointed out in the Provisional Report ( PERSON ) that this provision is to be seen as an application of the so - called principle of universality . '

In view of the finding contained in paragraph CARDINAL above , a reasonable interpretation of the law , in accordance with the legislature 's intention to comply in full with the treaty obligations entered into by the GPE , makes it necessary to understand section CARDINAL of LAW – despite its , to that extent , opaque wording – in such a way that the limitations comprised in subsections CARDINAL , CARDINAL and CARDINAL respectively of LAW have no bearing on sections CARDINAL and CARDINAL , and to that extent , not on section CARDINAL ... either . ”

Similar rulings have appeared since this decision in other decisions and judgments of NORP courts , including a judgment ( ORG [ National Jurisprudence Number ] PERSON ) given by ORG on DATE , while the present case was pending before it .

The LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or other Gases , and of Bacteriological Methods of Warfare ( signed at GPE on DATE ) , better known as the DATE LAW , entered into force on DATE . It reads as follows :

“ THE UNDERSIGNED PLENIPOTENTIARIES , in the name of their respective Governments :

Whereas the use in war of asphyxiating , poisonous or other gases , and of all analogous liquids , materials or devices , has been justly condemned by the general opinion of the civilised world ; and

Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties ; and

To the end that this prohibition shall be universally accepted as a part of ORG , binding alike the conscience and the practice of nations ;

DECLARE :

That the High Contracting Parties , so far as they are not already Parties to Treaties prohibiting such use , accept this prohibition , agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration .

The High Contracting Parties will exert every effort to induce other GPE to accede to the present LAW . Such accession will be notified to ORG of GPE , and by the latter to all signatory and acceding Powers , and will take effect on the date of the notification by ORG .

The present LAW , of which the LANGUAGE and LANGUAGE texts are both authentic , shall be ratified as soon as possible . It shall bear today 's date .

The ratification of the present Protocol shall be addressed to the Government of GPE , which will at once notify the deposit of such ratification to each of the signatory and acceding Powers .

The instruments of ratification of and accession to the present LAW will remain deposited in the archives of ORG .

The present LAW will come into force for each signatory Power as from the date of deposit of its ratification , and , from that moment , each Power will be bound as regards other PERSON which have already deposited their ratifications . ”

Among the earliest ORG to agree to be bound by this LAW were GPE , which acceded to it ( as ORG ) on DATE ; GPE , which acceded to it ( as GPE ) on DATE ; and GPE , which ratified it on DATE . All CARDINAL are still parties .

Other States have followed suit throughout DATE and more recently still . Among them are GPE ( which ratified the LAW in DATE ) , GPE ( which acceded to it in DATE ) and ORG and GPE ( which acceded to it on DATE , CARDINAL DATE ) . The most recent are GPE ( DATE ) , GPE and GPE ( both DATE ) , GPE ( DATE ) and GPE ( DATE ) . To date , CARDINAL have ratified or acceded or declared succession to LAW .

GPE and GPE were among those GPE which , in ratifying or acceding to the LAW , entered a reservation making its binding force in war conditional on reciprocal application by the enemy . GPE withdrew its reservation on DATE . Other ORG which entered similar reservations to the LAW but have since withdrawn them are GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE , binding its successor GPE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , and GPE ( DATE ) .

The Charter of ORG ( better known as the “ GPE Tribunal ” ) was annexed to the Agreement for the prosecution and punishment of the major war criminals of ORG ( “ GPE ” ) of DATE . In the relevant part , it reads as follows :

The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :

a. ORG against peace : namely , planning , preparation , initiation or waging of a war of aggression , or a war in violation of international treaties , agreements or assurances , or participation in a common plan or conspiracy for the accomplishment of any of the foregoing ;

b. War crimes : namely , violations of the laws or customs of war . Such violations shall include , but not be limited to , murder , ill - treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war or persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns or villages , or devastation not justified by military necessity ;

c. Crimes against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war , or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated .

Leaders , organizers , instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan . ”

In its ORG CARDINAL ( II ) , paragraph ( a ) , ORG of ORG directed ORG to “ formulate the principles of international law recognized in GPE and in the judgment of the Tribunal ” . ORG adopted a text at its second session ( Yearbook of the International Law Commission , DATE , PERSON . II , pp . CARDINAL - CARDINAL ) .

The Principles identified by ORG ( “ GPE Principles ” ) are the following :

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment .

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law .

The fact that a person who committed an act which constitutes a crime under international law acted as Head of ORG or responsible Government official does not relieve him from responsibility under international law .

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law , provided a moral choice was in fact possible to him .

Any person charged with a crime under international law has the right to a fair trial on the facts and law .

The crimes hereinafter set out are punishable as crimes under international law :

( a ) Crimes against peace :

( i ) Planning , preparation , initiation or waging of a war of aggression or a war in violation of international treaties , agreements or assurances ;

( ii ) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under ( i ) .

( b ) War crimes :

Violations of the laws or customs of war include , but are not limited to , murder , ill - treatment or deportation to slave - labour or for any other purpose of civilian population of or in occupied territory , murder or ill - treatment of prisoners of war , of persons on the seas , killing of hostages , plunder of public or private property , wanton destruction of cities , towns , or villages , or devastation not justified by military necessity .

( c ) Crimes against humanity :

Murder , extermination , enslavement , deportation and other inhuman acts done against any civilian population , or persecutions on political , racial or religious grounds , when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime .

Complicity in the commission of a crime against peace , a war crime , or a crime against humanity as set forth in ORG is a crime under international law . ”

GPE ratified the DATE LAW ( I ) for the Amelioration of the Condition of the Wounded and Sick in ORG in the Field ; Convention ( II ) for the Amelioration of the Condition of Wounded , Sick and Shipwrecked Members of ORG ) relative to the Treatment of Prisoners of War ; and Convention ( IV ) relative to ORG in Time of War ) on DATE . GPE did so ( as GPE ) on DATE . Neither ORG has entered any reservation .

Article CARDINAL common to all four DATE LAW reads as follows :

“ In the case of armed conflict not of an international character occurring in the territory of CARDINAL of the High Contracting Parties , each ORG to the conflict shall be bound to apply , as a minimum , the following provisions :

( CARDINAL ) Persons taking no active part in the hostilities , including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness , wounds , detention , or any other cause , shall in all circumstances be treated humanely , without any adverse distinction founded on race , colour , religion or faith , sex , birth or wealth , or any other similar criteria .

To this end , the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above - mentioned persons :

( a ) violence to life and person , in particular murder of all kinds , mutilation , cruel treatment and torture ;

( b ) taking of hostages ;

( c ) NORP outrages upon personal dignity , in particular humiliating and degrading treatment ;

( d ) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court , affording all the judicial guarantees which are recognized as indispensable by civilized peoples .

( CARDINAL ) The wounded and sick shall be collected and cared for .

An impartial humanitarian body , such as ORG , may offer its services to the Parties to the conflict .

The Parties to the conflict should further endeavour to bring into force , by means of special agreements , all or part of the other provisions of the present Convention .

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict . ”

In the relevant part , Convention ( IV ) relative to ORG in Time of War additionally provides as follows :

“ The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing , or ordering to be committed , any of the grave breaches of the present Convention defined in the following Article .

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed , such grave breaches , and shall bring such persons , regardless of their nationality , before its own courts . It may also , if it prefers , and in accordance with the provisions of its own legislation , hand such persons over for trial to another High Contracting Party concerned , provided such High Contracting ORG has made out a ' prima facie ' case .

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article .

In all circumstances , the accused persons shall benefit by safeguards of proper trial and defence , which shall not be less favourable than those provided by LAW and those following of LAW relative to LAW DATE . ”

“ Grave breaches to which the preceding Article relates shall be those involving any of the following acts , if committed against persons or property protected by the present Convention : wilful killing , torture or inhuman treatment , including biological experiments , wilfully causing great suffering or serious injury to body or health , unlawful deportation or transfer or unlawful confinement of a protected person , compelling a protected person to serve in the forces of a hostile Power , or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention , taking of hostages and extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly . ”

Over CARDINAL States had ratified or acceded or declared succession to the DATE LAW by DATE . GPE and GPE , both among the original signatories , did so in DATE and DATE respectively ; GPE did so in DATE . The DATE LAW now bind every State in the world .

The LAW on LAW was opened for signature on DATE and it entered into force on DATE . Among other things , it binds GPE Parties not already in possession of nuclear weapons not to seek possession of , or control over , nuclear weapons or nuclear explosive devices and to submit to verification measures .

In the LOC cases ( Judgment , ORG DATE , p. CARDINAL ) ORG held as follows :

“ DATE . In so far as this contention is based on the view that LAW [ the DATE LAW on the continental shelf ] has had the influence , and has produced the effect , described , it clearly involves treating that Article as a norm - creating provision which has constituted the foundation of , or has generated a rule which , while only conventional or contractual in origin , has since passed into the general corpus of international law , and is now accepted as such by the opinio juris , so as to have become binding even for countries which have never , and do not , become parties to the LAW . There is no doubt that this process is a perfectly possible one and does from time to time occur : it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed . At the same time this result is not lightly to be regarded as having been attained .

It would in the first place be necessary that the provision concerned should , at all events potentially , be of a fundamentally norm - creating character such as could be regarded as forming the basis of a general rule of law . ...

The essential point in this connection – and it seems necessary to stress it – is that even if these instances of action by non - parties to the ORG were much more numerous than they in fact are , they would not , even in the aggregate , suffice in themselves to constitute the opinio juris ; DATE for , in order to achieve this result , CARDINAL conditions must be fulfilled . Not only must the acts concerned amount to a settled practice , but they must also be such , or be carried out in such a way , as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it . The need for such a belief , i.e .. , the existence of a subjective element , is implicit in the very notion of the opinio juris sive necessitatis . The GPE concerned must therefore feel that they are conforming to what amounts to a legal obligation . The frequency , or even habituaCARDINAL character of the acts is not in itself enough . There are many international acts , e.g. , in the field of ceremonial and protocol , which are performed almost invariably , but which are motivated only by considerations of courtesy , convenience or tradition , and not by any sense of legal duty .

DATE . In this respect the ORG follows the view adopted by ORG in the ORG case , as stated in the following passage , the principle of which is , by analogy , applicable almost word for word , mutatis mutandis , to the present case ( P.C.I.J. , Series A , No . DATE , at p. CARDINAL ) :

' Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ... , it would merely show that GPE had often , in practice , abstained from instituting criminal proceedings , and not that they recognized themselves as being obliged to do so ; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom . The alleged fact does not allow one to infer that GPE have been conscious of having such a duty ; on the other hand , there are other circumstances calculated to show that the contrary is true . ' ”

In the Military and Paramilitary Activities in and against GPE ( GPE v. GPE ) case ( Merits , Judgment , I.C.J. Reports DATE , p. CARDINAL ) it held as follows :

“ CARDINAL . It is not to be expected that in the practice of GPE the application of the rules in question should have been perfect , in the sense that GPE should have refrained , with complete consistency , from the use of force or from intervention in each other 's internaCARDINAL affairs . The ORG does not consider that , for a rule to be established as customary , the corresponding practice must be in absolutely rigorous conformity with the rule . In order to deduce the existence of customary rules , the ORG deems it sufficient that the conduct of GPE should , in general , be consistent with such rules , and that instances of ORG conduct inconsistent with a given rule should generally have been treated as breaches of that rule , not as indications of the recognition of a new rule . If a ORG acts in a way prima facie incompatible with a recognized rule , but defends its conduct by appealing to exceptions or justifications contained within the rule itself , then whether or not the ORG 's conduct is in fact justifiable on that basis , the significance of that attitude is to confirm rather than to weaken the rule . ”

The Convention on the Prohibition of the Development , Production and Stockpiling of Bacteriological ( Biological ) and PERSON and on Their Destruction ( “ LAW ” ) was opened for signature simultaneously in GPE , GPE and GPE on DATE . By DATE it had been signed by MONEY .

LAW entered into force on DATE , after the deposit of the CARDINAL instrument of ratification . It had been ratified by CARDINAL recognised GPE and CARDINAL non - recognised ORG by DATE . A further CARDINAL ratified or acceded to it , or declared succession to it upon gaining independence , from DATE until DATE ( among them GPE , which ratified it on DATE ) . It currently has CARDINAL States Parties ( including all member ORG ) and CARDINAL signatories . GPE ratified it on DATE .

In the relevant part , it reads as follows :

“ The States Parties to this Convention ,

Determined to act with a view to achieving effective progress towards general and complete disarmament , including the prohibition and elimination of all types of weapons of mass destruction , and convinced that the prohibition of the development , production and stockpiling of chemical and bacteriological ( biological ) weapons and their elimination , through effective measures , will facilitate the achievement of general and complete disarmament under strict and effective international control ,

Recognizing the important significance of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and conscious also of the contribution which the said LAW has already made , and continues to make , to mitigating the horrors of war ,

Reaffirming their adherence to the principles and objectives of that LAW and calling upon all GPE to comply strictly with them ,

Recalling that ORG of ORG has repeatedly condemned all actions contrary to the principles and objectives of LAW of DATE ,

Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere ,

Desiring also to contribute to the realization of the purposes and principles of ORG ,

Convinced of the importance and urgency of eliminating from the arsenals of GPE , through effective measures , such dangerous weapons of mass destruction as those using chemical or bacteriological ( biological ) agents ,

Recognizing that an agreement on the prohibition of bacteriological ( biological ) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development , production and stockpiling of chemical weapons , and determined to continue negotiations to that end ,

Determined for the sake of all mankind , to exclude completely the possibility of bacteriological ( biological ) agents and toxins being used as weapons ,

Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk ,

Have agreed as follows :

Article VIII

Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any ORG under LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE .

Article IX

ORG to this Convention affirms the recognized objective of effective prohibition of chemical weapons and , to this end , undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development , production and stockpiling and for their destruction , and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes . ... ”

By the time of the Iran - Iraq War , a number of States had officially instructed their armed forces to refrain from the use of chemical weapons . These included GPE , whose Military Manual ( DATE ) provided that “ asphyxiating , poisonous or other gases , and all analogous liquids , materials or devices [ were ] forbidden ” , and GPE , whose LAW ( DATE ) proscribed the first use of asphyxiating , toxic or similar gases . GPE , in its ORG CARDINAL , LAW ( DATE , revised DATE ) , forbade its land forces the first use of “ lethal and incapacitating chemical agents ” , referring to the DATE LAW and the NORP reservation of no first use .

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which DATE be Deemed to be Excessively Injurious or to Have Indiscriminate Effects was opened for signature on DATE and it entered into force on DATE . It comprises CARDINAL Protocols . CARDINAL of them ( LAW or Restrictions on the Use of Incendiary Weapons ) prohibits the use of incendiary weapons against civilian targets and of air - delivered incendiary weapons against military objectives located within a concentration of civilians in all circumstances , and of non - air - delivered incendiary weapons against military objectives located within a concentration of civilians unless the civilians are spared ( LAW .

DATE during the war between GPE and GPE , that is , DATE , ORG of ORG adopted resolutions on chemical and bacteriological weapons ( nos . CARDINAL/CARDINAL , DATE ; CARDINAL , DATE ; CARDINAL , CARDINAL DATE ; ORG , DATE ; CARDINAL/CARDINAL , CARDINAL DATE ; CARDINAL , DATE ; CARDINAL , DATE ; CARDINAL , CARDINAL DATE ; and CARDINAL , DATE ) . In each of them ORG reaffirmed “ the necessity of strict observance of the principles and objectives ” by all States of the DATE LAW and of adherence by all States to LAW .

In Resolution no . CARDINAL/CARDINALC of DATE ORG expressed the belief

“ ... that the continued authority of the LAW and relevant rules of customary international law [ required ] that full and proper attention be given to all reports regarding the alleged use of chemical weapons and to their harmful effects , both immediate and long - term , to humans and to the environment of the victim countries ” .

In Resolution no . CARDINAL on Provisional Procedures to ORG of the DATE LAW of DATE ORG requested the Secretary - General of ORG

“ ... to devise procedures for the timely and efficient investigation of information concerning activities that [ might ] constitute a violation of LAW or of the relevant rules of customary international law and to assemble and organize systematically documentation relating to the identification of signs and symptoms associated with the use of such agents as a means of facilitating such investigations and the medical treatment that [ might ] be required ”

with the assistance of qualified experts . Elsewhere ( in ORG no . CARDINAL on ORG and ORG ) ORG recalled

“ ... that the use of chemical and biological weapons [ had ] been declared incompatible with the accepted norms of civilization ” .

NORP The Secretary General published his report on DATE ( ORG . PERSON ) . To it was annexed a report of a ORG , transmitted to the Secretary General on DATE , which set out procedures for investigating allegations of the use of chemical or biological weapons . ORG - annexed to the report of ORG was a list ( ORG ) of potential chemical and biological warfare agents ; “ sulphur mustard ” was CARDINAL of those mentioned . ORG took note of the Secretary General 's report in its Resolution CARDINAL/CARDINALE of DATE .

In CARDINAL of DATE , ORG recalled

“ ... the provisions of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and other relevant rules of customary international law ” .

DATE , in Resolution CARDINAL/CARDINALA , it expressed

“ ... deep dismay at the use of chemical weapons in violation of LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and other relevant rules of customary international law ” .

On DATE the President of ORG delivered the following statement :

“ On behalf of the members of ORG , I am authorized to make the following declaration :

ORG ,

Having considered again the question entitled ' The situation between GPE and GPE ' ,

Greatly concerned about the conflict between GPE and GPE , which endangers international peace and security in the region ;

Taking note of the report of the specialists appointed by the Secretary General to investigate allegations by ORG concerning the use of chemical weapons ( S/CARDINAL ) ,

Taking note with particular concern of the unanimous conclusions of the specialists that chemical weapons have been used ,

Expressing its grave concern about all reported violations in the conflict of the rules of international law and of the principles and rules of international conduct accepted by the world community to prevent or alleviate the human suffering of warfare ,

Strongly affirming the conclusion of the Secretary - General that these humanitarian concerns can only be fully satisfied by putting an end to the tragic conflict that continues to deplete the precious human resources of GPE and GPE ,

Strongly condemns the use of chemical weapons reported by the finding of the mission of specialists ;

Reaffirms the need to strictly abide by LAW of DATE for the Prohibition of the use in war of asphyxiating , poisonous or other gases , and of bacteriological methods of warfare ;

Calls on the GPE concerned immediately and unconditionally to reaffirm the obligations flowing from their accession to LAW of DATE ;

Condemns all violations of international humanitarian law and urges both parties to observe carefully the generally recognized principles and rules of international humanitarian law which are applicable to armed conflicts and their obligations under international conventions designed to prevent or alleviate the human suffering of warfare ;

Recalls its relevant resolutions , renews urgently its appeal for the strict observance of a cease - fire and for a peaceful solution of the conflict , and calls upon all governments concerned to cooperate fully with ORG in its efforts to bring about conditions leading to a peaceful settlement of the conflict in conformity with the principles of justice and international law ;

ORG the mediation efforts of the Secretary - General and requests him to continue his efforts with the parties concerned with a view to achieving a comprehensive , just and honourable settlement acceptable for both sides ;

PERSON to keep the situation between GPE and GPE under close review . ”

On DATE , the ORG unanimously adopted LAW ( DATE ) , of which the relevant part reads as follows :

“ ORG ,

Having considered the question entitled ' The situation between GPE and GPE ' ,

Recalling that ORG has been seized with the question between GPE and GPE for DATE and that decisions have been taken thereon ,

Noting that both GPE and GPE are parties to the LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or Other Gases , and of Bacteriological Methods of Warfare signed at GPE on DATE ,

Also deplores the escalation of the conflict , especially territorial incursions , the bombing of purely civilian population centres , attacks on neutral shipping or civilian aircraft , the violation of international humanitarian law and other laws of armed conflict and , in particular , the use of chemical weapons contrary to obligations under the DATE LAW ; ... ”

DATE . On DATE , the ORG unanimously adopted its LAW ( DATE ) , which reads as follows :

“ ORG ,

Having considered the report of DATE of the mission dispatched by the Secretary - General to investigate allegations of the use of chemical weapons in the conflict between GPE and GPE ,

Dismayed by the mission 's conclusions that chemical weapons continue to be used in the conflict and that their use has been on an even more intensive scale than before ,

Affirms the urgent necessity of strict observance of the LAW for the Prohibition of the Use in War of Asphyxiating , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE ,

Condemns vigorously the continued use of chemical weapons in the conflict between GPE and GPE contrary to the obligations under LAW ;

Expects both sides to refrain from the future use of chemical weapons in accordance with their obligations under LAW ;

Calls upon all GPE to continue to apply or to establish strict control of the export to the parties to the conflict of chemical products serving for the production of chemical weapons ;

Decides to remain seized of the matter and expresses its determination to review the implementation of the present resolution . ”

On DATE , the ORG unanimously adopted its LAW ( DATE ) , of which the relevant part reads as follows :

“ ORG ,

Recalling its resolution CARDINAL ( DATE ) of CARDINAL DATE ,

Having considered the reports of CARDINAL and DATE and of CARDINAL and CARDINAL DATE of the missions dispatched by the Secretary - General to investigate allegations of the use of chemical weapons in the conflict between GPE and GPE ,

Deeply dismayed by the missions ' conclusions that there had been continued use of chemical weapons in the conflict between GPE and GPE and that such use against NORP had become more intense and frequent ,

Profoundly concerned by the danger of possible use of chemical weapons in the future ,

Bearing in mind the current negotiations in the Conference on Disarmament on the complete and effective prohibition of the development , production and stockpiling of chemical weapons and on their destruction ,

Determined to intensify its efforts to end all use of chemical weapons in violation of international obligations now and in the future ,

Condemns resolutely the use of chemical weapons in the conflict between GPE and GPE in violation of obligations under LAW , Poisonous or Other Gases , and of Bacteriological Methods of Warfare , signed at GPE on DATE , and in defiance of its resolution CARDINAL ( DATE ) ;

ORG the Secretary - General to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological ( biological ) weapons that may constitute a violation of the DATE LAW or other relevant rules of customary international law , in order to ascertain the facts of the matter , and to report the results ;

Calls upon all GPE to continue to apply , to establish or to strengthen strict control of the export of chemical products serving for the production of chemical weapons , in particular to parties to a conflict , when it is established that they have used chemical weapons in violation of international obligations ;

Decides to consider immediately , taking into account the investigations of the Secretary - General , appropriate and effective measures in accordance with LAW , should there be any future use of chemical weapons in violation of international law , wherever and by whomever committed . ”

Proposals for a treaty intended to supplement the DATE LAW protocol by prohibiting the development , production or possession of chemical weapons in addition to their use were placed on the agenda of ORG in DATE . In DATE , ORG the year before ) set up an ad hoc working group charged with identifying the issues to be dealt with in a multilateral treaty to be prepared for that purpose . Drafting began in earnest in DATE , after the Secretary - General of ORG announced that ORG had been used by GPE in its war against GPE . Beginning in DATE , the global chemical industry actively participated in the negotiations . LAW and on their Destruction ( or LAW ) was opened for signature in GPE on DATE . CARDINAL signed it within DATE . It entered into force on DATE , DATE after the date of the deposit of the CARDINALth instrument of ratification . It currently binds GPE .

In Article I § CARDINAL of LAW Parties undertake

“ ... never under any circumstances :

( a ) To develop , produce , otherwise acquire , stockpile or retain chemical weapons , or transfer , directly or indirectly , chemical weapons to anyone ;

( b ) To use chemical weapons ;

( c ) To engage in any military preparations to use chemical weapons ;

( d ) To assist , encourage or induce , in any way , anyone to engage in any activity prohibited to a ORG under this Convention . ”

Article VII § CARDINAL obliges GPE Parties to enact criminal legislation making activities prohibited to ORG under this treaty punishable by law . This includes extending penal legislation to cover the commission of such acts by natural persons possessing that ORG 's nationality .

Appended to LAW is an “ Annex on Chemicals ” comprising CARDINAL schedules :

Schedule CARDINAL includes toxic chemicals or precursors that are chemical weapons themselves , or may be used as chemical weapons or for the manufacture of such weapons , and have “ little or no use for purposes not prohibited under this Convention ” .

Schedule CARDINAL includes chemicals that possess lethal or incapacitating toxicity as well as other properties that could enable them to be used as chemical weapons or that may be used in the manufacture of such weapons , and are “ not produced in large commercial quantities for purposes not prohibited under this Convention ” .

Schedule CARDINAL includes chemicals that have been produced , stockpiled or used as chemical weapons , or might be used as chemical weapons , or are important for the production of Schedule CARDINAL or Schedule CARDINAL chemicals , and “ may be produced in large commercial quantities for purposes not prohibited under this Convention ” .

Separate verification regimes apply to chemicals according to the Schedule in which they are listed , details of which are laid down in FAC appended to LAW .

Thiodiglycol , which has industrial uses ( including as a solvent in the manufacture of some types of printing and ballpoint pen inks ) , is listed in Schedule CARDINAL .

Article PERSON establishes the Organization for the Prohibition of Chemical Weapons ( ORG ) to achieve the object and purpose of LAW , to ensure the implementation of its provisions , including those concerning international verification of compliance with it , and to provide a forum for consultation and co - operation among GPE Parties . The ORG is based in GPE , GPE .

In its decision of DATE on the defence motion for interlocutory appeal on jurisdiction in Prosecutor v. PERSON ( Case No . IT-CARDINAL - CARDINAL ) , ORG of ORG for the Former GPE held as follows ( original emphasis ) :

“ CARDINAL . So far we have pointed to the formation of general rules or principles designed to protect civilians or civilian objects from the hostilities or , more generally , to protect those who do not ( or no longer ) take active part in hostilities . We shall now briefly show how the gradual extension to internal armed conflict of rules and principles concerning international wars has also occurred as regards means and methods of warfare . As ORG has pointed out above ... , a general principle has evolved limiting the right of the parties to conflicts ' to adopt means of injuring the enemy . ' The same holds true for a more general principle , laid down in the so - called Turku Declaration of Minimum Humanitarian Standards of DATE , and revised in DATE , namely LAW , paragraph CARDINAL , whereby ' [ w]eapons or other material or methods prohibited in international armed conflicts must not be employed in any circumstances . ' ( Declaration of Minimum Humanitarian Standards , reprinted in , Report of ORG on its MONEY , PERSON . , Provisional Agenda Item CARDINAL , at CARDINAL , PERSON . E / CN.CARDINAL/CARDINAL/CARDINAL ( DATE ) . ) ...

Indeed , elementary considerations of humanity and common sense make it preposterous that the use by GPE of weapons prohibited in armed conflicts between themselves be allowed when GPE try to put down rebellion by their own nationals on their own territory . What is inhumane , and consequently proscribed , in international wars , can not but be inhumane and inadmissible in civil strife .

This fundamental concept has brought about the gradual formation of general rules concerning specific weapons , rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts . By way of illustration , we will mention chemical weapons . Recently a number of ORG have stated that the use of chemical weapons by the central authorities of a ORG against its own population is contrary to international law . On DATE the [ then ] CARDINAL Member States of ORG made a declaration whereby :

' The CARDINAL are greatly concerned at reports of the alleged use of chemical weapons against the NORP [ by the NORP authorities ] . They confirm their previous positions , condemning any use of these weapons . They call for respect of international humanitarian law , including LAW of DATE , and Resolutions CARDINAL and CARDINAL of ORG [ concerning the use of chemical weapons in the Iraq - Iran war ] . ' ( CARDINAL NORP Political Cooperation Documentation Bulletin , ( DATE ) at CARDINAL . )

This statement was reiterated by the NORP representative , on behalf of the CARDINAL , on many occasions . ( See PERSON , ORG . , CARDINALrd Sess . , CARDINALth Mtg . , at CARDINAL , ORG . A / C.CARDINAL/CARDINAL/PV.CARDINAL ( CARDINAL of DATE in ORG ) ; PERSON , ORG . , CARDINALrd Sess . , ORG . , at CARDINAL , ORG . ORG ( statement of CARDINAL DATE in meeting of ORG to the effect inter alia that ' The CARDINAL [ . . . ] call for respect for LAW of DATE and other relevant rules of customary international law ' ) ; PERSON , ORG . , CARDINALrd Sess . , ORG . , at CARDINAL , ORG . A / C.CARDINAL/CARDINAL/SR.CARDINAL ( summary of statement of CARDINAL DATE in ORG ) ; see also Report on ORG [ EPC Aspects ] , CARDINAL NORP Political Cooperation Documentation Bulletin ( DATE ) , CARDINAL , at CARDINAL ; Question No CARDINAL/CARDINAL by Mr. PERSON ( S - E ) Concerning the Poisoning of Opposition Members in GPE , CARDINAL NORP Political Cooperation Documentation Bulletin ( DATE ) , CARDINAL ( statement of the Presidency in response to a question of a member of ORG ) . )

It is interesting to note that , reportedly , ORG flatly denied the poison gas charges . ' ( ORG , DATE , at A CARDINAL . ) Furthermore , it agreed to respect and abide by the relevant international norms on chemical weapons . ... It should also be stressed that a number of countries ... strongly disagreed with GPE assertions that GPE had used chemical weapons against its NORP nationals . However , this disagreement did not turn on the legality of the use of chemical weapons ; rather , those countries accused GPE of ' conducting a smear media campaign against GPE . ' ( ORG , DATE , at A CARDINAL ; ORG , DATE , at A CARDINAL . )

It is therefore clear that , whether or not GPE really used chemical weapons against its own NORP nationals - a matter on which this ORG obviously can not and does not express any opinion - there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts . ”

Article CARDINAL of the Statute of the Special Iraqi Tribunal provides as follows :

“ The ORG shall have jurisdiction over any NORP national or resident of GPE accused of the crimes listed in LAW , committed since DATE and up and until DATE , in the territory of GPE or elsewhere , namely :

a ) The crime of genocide ;

b ) ORG against humanity ;

c ) War crimes ; or

d ) Violations of certain NORP laws listed ... below . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by PERSON , their Agent .

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

On DATE the applicant lodged an action for restitution of property , for compensation and for the protection of his good name and reputation with GPE ORG .

The action was lost and the applicant submitted , at ORG request , a new action on DATE . He claimed restitution of his property and damages from an individual . The applicant alleged , in particular , that prior to his emigration from GPE in DATE , he had deposited his belongings and also documents containing his intellectual property to the defendant , and that the latter refused to restore that property to him .

On DATE the judge heard the applicant . Hearings were scheduled for DATE , CARDINAL DATE and DATE . They were adjourned on each occasion as the court considered it necessary to clarify the position in the case and to take further evidence .

On DATE ORG dismissed the applicant ’s request for exclusion of ORG judge .

On DATE ORG allowed another person to join the proceedings as plaintiff and granted the applicant ’s request for exemption from the obligation to pay court fees .

On DATE ORG dismissed the defendant ’s request for exclusion of GPE ORG judge dealing with the case .

A hearing before GPE ORG was held on CARDINAL DATE . Subsequently the case was assigned to another judge .

A hearing before GPE ORG was scheduled for CARDINAL January DATE . On DATE the applicant challenged all judges of the court and requested that the hearing be adjourned . On DATE ORG submitted the request for exclusion of its judges to ORG . The latter dismissed the request on DATE .

On DATE ORG dismissed the GPE request for exclusion of ORG judges .

On DATE ORG adjourned the case as the applicant had challenged the judges of that court . On DATE ORG returned the file to ORG as the applicant ’s request contained no relevant new information .

On DATE the Bratislava III ORG adjourned the case as the plaintiffs had challenged the judges of both GPE ORG and of ORG .

The proceedings are pending .

On DATE the applicant lodged an action for protection of his good name and reputation and for damages against an individual and against ORG .

On DATE the applicant submitted further information to GPE ORG which the latter found to be incomprehensible , as in the case of his first submission of CARDINAL DATE .

Hearings scheduled for DATE and DATE had to be adjourned as both the applicant and the defendant failed to appear . On CARDINAL and DATE ORG adjourned the case .

On DATE the Bratislava III ORG dismissed the action . The applicant appealed .

On DATE ORG quashed the judgment and sent the case back to ORG . The decision stated that ORG should invite the applicant to specify his claims and decide on the case in the light of the information thus obtained .

On DATE the applicant challenged the ORG judge . His request was dismissed by the appellate court on DATE . In the meantime , on DATE , the applicant completed his original action .

On DATE the first instance court submitted the case file to ORG for a decision on the applicant ’s request for exclusion of the judge dealing with the case . On DATE ORG sent the case back to the first instance court without taking a decision . It pointed out that the applicant ’s submissions did not contain any new facts .

On DATE the president of GPE ORG informed the applicant that the case would be proceeded with after problems arising from the shortage of judges had been resolved .

On DATE the president of GPE ORG assigned the case to himself .

On DATE ORG decided that GPE ORG judges were not excluded .

By a decision delivered on DATE the Bratislava III ORG discontinued the proceedings . The court noted that the applicant ’s action concerned the protection of his personality rights . The decision further stated that the first defendant had died in DATE and that the second defendant , the Bratislava II ORG , was not a legal person and that it therefore lacked standing in the proceedings .

The applicant filed an appeal . The proceedings are pending .

On DATE the applicant lodged a petition , pursuant to LAW , alleging a violation of his right to a hearing without undue delays in the above CARDINAL sets of proceedings before GPE ORG . On DATE ORG declared the petition admissible .

On DATE and on DATE ORG invited the applicant to appoint a lawyer to represent him in the proceedings as required by LAW .

On DATE the applicant requested ORG to assign a lawyer to represent him before the Constitutional Court free of charge . He explained that several lawyers had refused to do so . The applicant informed ORG about the difficulties in finding a representative and requested an extension of the time - limit set for appointing a lawyer .

On DATE ORG discontinued the proceedings on the ground that the applicant was not represented by a lawyer .

On DATE the president of ORG asked the applicant to submit a copy of his constitutional petition with a view to examining the request of DATE .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition ( “ podnet ” ) presented by any individual or a corporation claiming that their rights have been violated .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .

Pursuant to LAW ) of LAW , a person who wishes to bring proceedings before the Constitutional Court shall submit the authority of a lawyer representing him or her in the proceedings .

After DATE the ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .

According to an explanatory letter by the president of ORG of DATE , nothing prevents ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .

In its decision no . I. ÚS CARDINAL of DATE ORG pointed out that it has been its practice to examine thoroughly all requests for a lawyer to be appointed , at ORG cost , to represent persons in proceedings before it . The decision further states that ORG has regularly granted such requests when they are justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible are met .

Subsequently the above position has been confirmed in a number of cases . In deciding on requests for a lawyer to be appointed at the cost of ORG has regard to the relevant provisions of LAW governing the exemption of a party from the obligation to pay court fees and the appointment of a legal representative for such a person .