LAWLESS v. IRELAND (No. 1) - 332/57 [1960] ECHR 1 (14 November 1960)

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In the "Lawless" case,

The European Court of Human Rights, sitting, in accordance with the
provisions of Article 43 (art. 43) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinafter
referred to as "the Convention") and of Rules 21 and 22 of the Rules
of Court, as a Chamber composed of:

Mr. R. CASSIN, President

and MM. G. MARIDAKIS
E. RODENBOURG
R. McGONIGAL, ex officio member
G. BALLADORE PALLIERI
E. ARNALDS
K.F. ARIK, Judges
P. MODINOS, Registrar,

delivers the following judgment on the preliminary objections and
questions of procedure raised in the Memorial of the Commision, the
Counter-Memorial of the Irish Government and the submissions at the
public hearing of the case :

Procedure:

On 13th April 1960 the Secretary of the European Commission of Human
Rights (hereinafter called "the Commission") transmitted to the
Registrar of the Court a request from the Commission, dated
12th April 1960, submitting to the Court the case brought before the
Commission under Article 25 (art. 25) of the Convention by an
Application dated 8th November 1957 and filed by Gerard Richard Lawless,
a national of the Republic of Ireland, against the Government of the
said Republic.

The request, which refers to the declaration made on
18th February 1953 by the Irish Government under Article 46 (art. 46)
of the European Convention on Human Rights and to the powers vested in
the Commission by Articles 44 and 48 (art. 44, art. 48) of that
Convention, was transmitted to the Irish Government on 14th April 1960
in accordance with Rule 32 of the Rules of Court. In conformity with
Rule 21, paragraph 2 of the Rules of Court, the Registrar furthermore
invited the said Government to inform him, within thirty days, whether
it wished to appear as a Party to the case. As prescribed in the
concluding sub-paragraph of Rule 32, paragraph 1 of the Rules of
Court, the Registrar also informed the Committee of Ministers,
on 14th April 1960, of the filing of the request.

By a telegram of 12th May 1960, confirmed by a letter of the same
date, the Irish Government informed the Registrar that it desired
to appear as a Party in the proceedings relating to the "Lawless" case
and that it had appointed as its Agent Mr. T. Woods, Irish Permanent
Representative to the Council of Europe.

Following upon this communication, Lord McNair, President of the
Court, proceeded on 18th May 1960, in London, in the presence of the
Deputy Registrar to choose by lot the names of six judges to
constitute the above-mentioned Chamber - Mr. Richard McGonigal, an
elected Judge of Irish nationality, being the ex officio member
required by Article 43 (art. 43) of the Convention. The composition
of the Chamber was notified by the Registrar to the judges and to the
Agent of the Irish Government on 23rd May 1960, and to the President
of the Commission on 24th May.

After having, at Strasbourg on 1st June 1960, ascertained the views of
the Agent of the Party and the delegates of the Commission upon the
procedure to be followed, as required by Rule 35, paragraph 1, of the
Rules of Court, the President of the Chamber, by an Order of the same
date, appointed 30th June 1960 as the final date for the filing of the
Commission's Memorial and 20th August 1960 as the final date for
the filing of the Counter-Memorial by the Irish Government. At the
request of the Party, this latter time-limit was extended to
30th August 1960, by an order of the President of the Chamber dated
16th August 1960. The Memorial and Counter-Memorial - both raising
principally preliminary objections and questions of procedure - were
filed on the appointed dates. In accordance with Rule 35, paragraph 3
of the Rules of Court, the Memorial of the Commission was transmitted
to the judges and to the Agent of the Irish Government on
30th June 1960 and the Counter-Memorial was communicated to the judges
and to the delegates of the Commission on 30th August 1960. So far as
concerns the preliminary objections, the case has thus been ready for
hearing since 30th August 1960.

Public hearings were held on 3rd and 4th October 1960, at which there
appeared:

for the Commission:

Mr. C.H.M. WALDOCK, President of the Commission,
Principal Delegate,

Mr. C.TH. EUSTATHIADES, Vice-President,
and
Mr. S. PETREN, Member of the Commission,
Assistant Delegates,

for the Irish Government, Party to the case :

Mr. T. WOODS, Permanent Representative to the Council of Europe,
Agent, assisted by

MM. A. O'KEEFFE, Attorney-General of Ireland,

S. MORRISSEY, Barrister-at-Law, Legal Adviser,
Department of External Affairs,

P. REUTER, Professor of the Faculty of Law of Paris,

A.J. HEDERMAN, Barrister-at-Law,
Counsel, and by

MM. D. O'DONOVAN, Chief State Solicitor,

P. BERRY, Assistant Secretary General, Department of Justice.
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At this hearing the Court heard the following statements, replies and
submissions: for the Commission: from Mr. C.H.M. WALDOCK, principal
delegate; for the Irish Government: Mr. A. O'KEEFFE, Attorney General.

On 3rd an 4th October 1960 the Court confined its debate to the
preliminary objections and questions of procedure.

AS TO THE FACTS

The purpose of the Commission's Request - to which is appended the
Report drawn up by the Commission in accordance with the provisions of
Article 31 (art. 31) of the Convention - is to submit the case of
G.R. Lawless to the Court so that it may decide whether or not the
facts of the case disclose that the Respondent Government has failed
in its obligations under the Convention.

As appears from the Commission's Request and from its Memorial,
Mr. Lawless alleges in his Application that there has been a violation
of the Convention in his case, by the authorities of the Republic of
Ireland, inasmuch as he was detained without trial, between
13th July and 11th December 1957, in a military detention camp
situated in the territory of the Republic of Ireland, in pursuance of
an Order made by the Minister of Justice under section 4 of the
Offences against the State (Amendment) Act, 1940. The special powers
of arrest and of detention allowed to Ministers of State by this Act
are said to have been brought into force on 8th July 1957, by a
proclamation made and published by the Irish Government on
5th July 1957.

After being declared admissible on 30th August 1958, the Request was
dealt with by the Commission according to the procedure laid down in
Articles 28 and 29 (art. 28, art. 29) of the Convention. It proved
impossible to secure a friendly settlement, and the Commission
therefore drew up the Report called for by Article 31 (art. 31)
of the Convention. This Report was adopted by the Commission on
19th December 1959, the majority holding that there had been no breach
of the Convention on the part of the Irish Government and that no
action should be taken on the Applicant's suit for damages.

After transmitting this Report to the Committee of Ministers of the
Council of Europe on 1st February 1960, in accordance with
Article 31, paragraph 2 (art. 31-2), of the Convention, the Commission
decided at its meeting of 1st April 1960, to avail itself of the
possibility offered by Articles 44 and 46 (art. 44, art. 46) of the
Convention, and refer the Lawless case to the Court for final
decision.

In support of this step, the Commission recalled in its Memorial that
an opinion stated by it under Article 31 (art. 31) of the Convention
as to whether or not the facts found disclosed a breach of the
Convention would not be conclusive. The Commission pointed out that
under Article 32, paragraph 1 (art. 32-1), of the Convention, if a
question were not referred to the Court, it rested with the Committee
of Ministers to decide, by a majority of two-thirds, whether or not
there had been a violation of the Convention.

In view of the fundamental importance of the legal problems raised in
this case - and particularly of the questions arising in relation to
Article 15 (art. 15) of the Convention - the Commission deemed it
advisable to refer the case to the Court, though without qualifying
in any way its own opinion on the subject as expressed in the Report.

At the meeting held on 1st June 1960, in accordance with Rule 35,
paragraph 1, of the Rules of Court, and in its Memorial of
27th June 1960, the Commission stated that, in conformity with Rule 76
of its Rules of Procedure, it had, on 13th April 1960 - that is, after
referring the case to the Court - transmitted the Report to the
Applicant, inviting him to submit his observations to the Commission.
In submitting the Report to the Applicant the Commission pointed out
that that document must be kept secret and that the Applicant was not
entitled to publish it.

Rule 76 of the Rules of Procedure of the Commission runs as follows:

"When a case brought before the Commission in pursuance of Article 25
(art. 25) of the Convention is subsequently referred to the Court, the
Secretary of the Commission shall immediately notify the Applicant.
Unless the Commission shall otherwise decide, the Secretary shall also
in due course communicate to him the Commission's Report, informing
him that he may, within a time-limit fixed by the President, submit to
the Commission his written observations on the said Report. The
Commission shall decide what action, if any, shall be taken in respect
of these observations."

In its Memorial, the Commission declared its readiness "to submit to
the Court the Applicant's comments upon the Report as a document
relevant in the present proceedings". However, instead of
communicating these comments on its own initiative, the Commission
thought appropriate, at this preliminary stage of the procedure, to
request the Court for leave to file the memorandum containing the
Applicant's comments as a document submitted by the Commission.

In the pleadings, the following submissions were made in regard to the
procedure alone:

by the Commission, in its Memorial:
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"May it please the Court:

(1) to give leave for the Commission to submit to the Court the
Applicant's comments on the Commission's Report as one of the
Commission's documents in the case; and

(2) in general, to give directions as to the right of the Commission
to communicate to the Court the comments of the Applicant in regard to
matters arising in the present proceedings".

by the Irish Government, in their Counter-Memorial:

"May it please the Court:

(1) to decline jurisdiction in the present case unless the Commission
satisfies the Court that between 19th December 1959 and
1st February 1960, the question of reference of the case to the Court
was not discussed in any way by the Commission;

(2) to refuse to entertain the case while the delay on the part of the
Commission in transmitting its Report to the Committee of Ministers
and to the Government has not been satisfactorily explained;

(3) to declare that any publication by the Commission of its Report
other than that expressly authorised by the Convention, is a breach of
the obligations imposed on the Commission by the Convention;

(4) to rule that the comments of the Applicant on the Report of the
Commission and the further comments of the Applicant on matters
arising in the present proceedings be not received by the Court:

(a) because no argument in favour of their admission has been
submitted by the Commission, and

(b) because the admission of such comments would be an oblique method
of amending the Convention, and

(c) because such comments have come into existence only through a
breach by the Commission of its obligations of secrecy, and

(d) because in the circumstances of the present proceedings such
comments are not material;

(5) to declare that a correct interpretation of the Convention does
not permit of action of the nature contemplated by Rule 76 of the
Rules of the Commission".

At the hearing of 3rd October 1960, the Commission made the following
submissions:

"A. As to the objection to the Court's jurisdiction:

May it please the Court to reject the preliminary objections to the
Court's jurisdiction formulated in paragraph 4 of the Respondent
Government's Counter-Memorial.

B. As to the objection concerning the publication of the Report:

May it please the Court to decide that the provisions of Rule 76 of
the Commission's Rules of Procedure and the Commission's communication
of its Report on the present case to the Applicant fall within the
competence conferred upon the Commission by the Convention, and to
reject the preliminary objection formulated in paragraph 5 of the
Respondent Government's Counter-Memorial.

C. As to the objection in regard to the role of the Applicant in the
proceedings before the Court:

May it please the Court:

(a) to give leave to the Commission to transmit to the Court the
written comments of the Applicant upon the Commission's Report;

(b) to give such directions as the Court may consider appropriate as
to the right of the Commission to communicate to the Court the
comments of the Applicant in regard to matters arising in the present
proceedings;

(c) to reject the submissions formulated in paragraph 6 of the
Respondent Government's Counter-Memorial."

At the hearing of 3rd October 1960, the Agent of the Irish Government,
in view of the explanations furnished by the Delegate of the
Commission during his oral pleading, withdrew the preliminary objections
appearing as Nos. 1 and 2 in his Government's Counter-Memorial.

The following submissions, relating to the preliminary objections and
questions of procedure raised during the present proceedings, were
presented by the Agent of the Irish Government at the hearing of
4th October 1960:

"May it please the Court:

(1) to declare that any publication by the Commission of its Report,
other than that expressly authorised by the Convention, is a breach of
the obligations imposed on the Commission by the Convention;

(2) to rule that the comments of the Applicant on the Report of the
Commission be not received by the Court;

(3) to rule that no further comments of the Applicant on matters
arising in the present proceedings may be received by the Court;

(4) to declare that a correct interpretation of the Convention does
not permit of action of the nature contemplated by Rule 76 of the
Rules of the Commission."

AS TO THE LAW

Whereas the Irish Government, in reply to the questions of procedure
raised in the Commission's Memorial, complied with Rule 46 of the
Rules of Procedure of the Court in raising their preliminary and
procedural objections in the Counter-Memorial which constitutes the
first written document in their case; and whereas at the hearing of
3rd October 1960 the Court took formal note of the Irish Government's
withdrawal of their preliminary objections set out in paragraphs 1 and
2 of the final submissions of their Counter-Memorial; whereas
furthermore, in their submissions at the hearing of 4th October the
Irish Government did not press the objections raised in paragraph 7 of
the Counter-Memorial, concerning the interrogative form of the
Commission's findings on the substance of the case; whereas accordingly
there is no need for the Court to consider these matters;

Whereas, in the light of the final submissions of the Commission and
of the Irish Government at the hearings of 3rd and 4th October 1960,
the Court is called upon to decide the following three points only:

(i) Is Rule 76 of the Rules of Procedure of the Commission in general
contrary to the terms of the Convention?

(ii) Could the Commission, after bringing the case before the Court,
communicate its Report to G.R. Lawless, the Applicant, in the manner
described by the Commissions's Delegate, without infringing the terms
of the Convention?

(iii) Should the Court, either at the instance of the Commission
acting on its own authority, or through the Commission after
authorisation by the Court, receive the written observations of
G.R. Lawless, the Applicant, on the Commission's Report or on points
arising during the proceedings?

(i) As regards the alleged incompatibility "in genere" of Rule 76 of
the Rules of Procedure of the Commission with the Convention

Whereas among the preliminary points raised by the Irish Government
with regard to the proceedings before the Court, that set out in
paragraph 4 of their conclusions calls for a general decision by the Court
on the compatibility of Rule 76 of the Commission with the terms of
the Convention;

Whereas in Article 19 (art. 19), the Convention sets up both the
Commission and the Court "to ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention" and
assigns to each of these bodies specific functions in the safeguarding
of human rights; whereas those of the Commission differ according to
the stage reached in the proceedings; whereas, in the initial stage
- governed mainly by Section III of the Convention - the Commission's
chief function is to carry out an independant inquiry, to seek a
friendly settlement and, if need be, to bring the case before the
Court: whereas, once this has been done, the Commission's main
function is to assist the Court, and it is associated with the
proceedings; whereas, however, even at this stage its action is
determined not by a decision of the Court, but directly by the terms
of the Convention;
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Whereas it follows from the whole body of rules governing the powers
of the Court, that it cannot interpret the Convention in an abstract
manner, but only in relation to such specific cases as are referred to
it; whereas, according to Article 45 (art. 45) of the Convention, the
jurisdiction of the Court "shall extend to all cases concerning the
interpretation and application of the Convention"; and whereas the
exact meaning of this clause is defined in other articles of the
Convention, namely: (a) Article 47 (art. 47), according to which "the
Court may only deal with a case after the Commission has acknowledged
the failure of efforts for a friendly settlement and within the period
of three months provided for in Article 32 (art. 32)"; (b) Article 53
(art. 53), which states that only High Contracting Parties which are
"parties to the case" are bound by the decision of the Court;

Whereas it follows from the foregoing that the Court is not competent
to take decisions such as to delete a rule from the Commission's Rules
of Procedure - a step which would affect all Parties to the Convention -
since this would amount to having power to make rulings on matters of
procedure or to render advisory opinions; that accordingly the Court
has no power to consider a point raised in a general by the Commission
and the Irish Government;

Whereas, notwithstanding, it is the duty of the Court, in the exercise
of its functions, to ensure that the Convention is respected and, if
need be, to point to any irregularities and to refuse to apply in such a
case any provisions or regulations which are contrary to the
Convention; whereas it follows that the Court must consider the specific
point which follows;

(ii) As regards the communication of the Commission's Report
to G.R. Lawless

Whereas it was established, in the course of the proceedings, that
the Commission transmitted the Report drawn up in accordance with
Article 31 (art. 31) of the Convention to G.R. Lawless, the
Applicant, on 13th April 1960 that is to say one day after bringing the
case before the Court;

Whereas the Irish Government claimed that the Commission committed a
breach of the Convention in communicating its Report to G.R. Lawless,
arguing that Article 31 (art. 31) of the Convention expressly forbade
Contracting States to publish the Commission's Report; that this
applied also to the Committee of Ministers unless the State concerned
did not take the measures required by the decision of the Committee of
Ministers; that if the case were brought to the Court, the Report had
to remain with the Court and be kept secret unless the Court expressly
authorised its publication; that just as the Contracting Parties
undertook, by virtue of the Convention, to keep the Report secret,
so the Commission, which derived its competence solely from the
Convention to which those States were voluntary Parties, was
correspondingly not at liberty to publish the Report when it wished,
or to communicate it to whomsoever it thought fit, otherwise the
Contracting Parties would be in a position subordinate to that of the
Commission with regard to the secrecy of the Report; that it was not
by a fortuitous omission that the authors of the Convention did not
include a clause expressly forbidding the Commission to publish the
Report; that under the terms of the Convention, the individual had no
part in the proceedings either before the Committee of Ministers or
before the Court; and that once the Commission had adopted its Report,
the individual dropped out of the proceedings altogether;

Whereas the Commission, in justification of its action in
communicating the Report to the Applicant, maintained that the
Contracting States, subject to the express provisions of the
Convention, had conferred on it the necessary powers to fulfil
effectively the functions entrusted to it by Article 19 (art. 19) of
the Convention; whereas, moreover, the latter contained no provision
forbidding the Commission to publish its Report or communicate it to
whomsoever it wished when it considered that the fulfilment of its
functions so required; whereas, furthermore, in the present case, the
Commission had communicated the Report to G.R. Lawless after the case
had been referred to the Court in order to be in a position to present
the case impartially and, in so doing had borne in mind that it was
the Applicant who had first brought the case before the Commission;

Whereas in the opinion of the Court the procedure, in a case brought
before it under the terms of the Convention, differs from that
applicable either before the Commission or before the Committee of
Ministers;

Whereas the procedures referred to in Section III of the Convention
are secret and the proceedings before the Commission which involve the
Applicant, are conducted in camera in accordance with Article 33
(art. 33); whereas moreover, when the Commission transmits its Report
to the Committee of Ministers and to the States concerned, they are
prevented, by Article 31 (2) (art. 31-2), from publishing it;

Whereas, as soon as the case has been referred to the Court, in
accordance with Article 48 (art. 48) of the Convention, the
proceedings assume a judicial character; whereas, futhermore, in any
democratic society, within the meaning of the Preamble and the other
clauses of the Convention, proceedings before the judiciary should be
conducted in the presence of the parties and in public; whereas this
fundamental principle, with regard to domestic civil and criminal law,
is upheld in Article 6 (art. 6) of the Convention and whereas Section
IV of the Convention, governing the organisation and competence of the
Court, contains no such provision as Article 33 (art. 33) which
stipulates that the Commission shall meet in camera; whereas Rule 18
of the Rules of Court in fact states that hearings shall be public
"unless the Court shall in exceptional circumstances decide
otherwise"; whereas likewise, Rule 51 states that the Court's
judgments "shall be read at a public hearing" and whereas it follows,
therefore, that proceedings before the Court are public;

Whereas it is true that the debates and the judgment alone are public
and that other documents in the case can only be published, in
accordance with Rule 52 of Rules of Court, if the Court expressly
authorises such publication; whereas, however, this provision cannot
alter the fact that the proceedings take place in the presence of the
Parties ("le caractère contradictoire de la procédure"), nor does it
prevent the communication of the documents in the case to the persons
or bodies directly concerned, with the proviso, made either by the
Commission or by one of the Parties, that they should not be
published; whereas, therefore, there is a distinction between the
publication of documents for which the authorisation of the Court is
required and the communication of the said documents to the Applicant,
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which requires no such authorisation;

Whereas, in the present case, G.R. Lawless, the Applicant, although
he is not entitled to bring the case before the Court, to appear
before the Court or even to make submissions through a representative
appointed by him, is nevertheless directly concerned in the
proceedings before the Court; whereas it must be borne in mind that
the Applicant instituted the proceedings before the Commission and
that, if the Court found that his complaints were justified, he would
be directly affected by any decision, in accordance with Article 50
(art. 50) of the Convention, on the substance of the case; whereas
Article 38 of the Rules of Court authorises it to hear any person
whose deposition seem to it useful in the fulfilment of its task, as
is admitted, moreover, both by the Irish Government and by the
Commission;

Whereas in communicating its Report to Lawless, the Commission did not
fail to draw attention to its confidential character in expressly
forbidding its publication;

Whereas it follows from the foregoing that the Court is of the opinion
that the Commission is enabled under the Convention to communicate to
the Applicant, with the proviso that it must not be published, the whole
or part of its Report or a summary thereof, whenever such communication
seems appropriate; whereas, therefore, in the present case, the
Commission, in communicating its Report to G.R. Lawless, the
Applicant, did not exceed its powers;

(iii) As regards the presentation to the Court by the Commission of
the Applicant's observations on the Report and other points arising
during the proceedings

Whereas the Commission asked the Court for authorisation to submit, as
a document in the case, the Applicant's observations on the Report
following its communication to him under the conditions referred to
above; whereas the Commission requests a general ruling on its right
to communicate to the Court the Applicant's observations on points
arising in the course of the proceedings; whereas, while realising
that the Applicant is not a party to the proceedings before the Court,
the Commission has stated that it wishes to submit to the Court
the Applicant's views on the main points of the proceedings with which
he is concerned; whereas the Commission has invoked various
precedents drawn from advisory opinion procedure at the Permanent
Court of International Justice and, subsequently at the International
Court of Justice, where observations by individuals submitted through
the international organisations who applied for the advisory opinions
have been taken into consideration, although the Statutes of both
these bodies provide that States alone may be represented in Court;
whereas the Commission also invokes the terms of the Convention as a
whole and, in particular, the English version of Article 44 (art. 44),
to show that the authors of the Convention did not intend to
disassociate entirely the individual who had applied to the Commission
from the proceedings before the Court, but simply to prevent him from
bringing a case to Court himself;

Whereas the Irish Government maintained that if the Court agreed to
receive the Applicant's observations from the Commission, this would
constitute a breach of the Convention since, according to the French
version of Article 44 (art. 44), the High Contracting Parties and the
Commission alone were entitled to appear before the Court ("se
présenter devant la Cour"); and that, moreover, if the Commission were
authorised to submit the Applicant's observations as a Commission
document, the impartiality and objectivity required of the Commission
under the terms of the Convention would be impaired; and furthermore,
that to allow the Applicant to submit his observations to the Court would
be to give an individual the opportunity of using the proceedings as a
means of propaganda against his own Government;

Whereas the Court is not called upon to examine in detail the
precedents invoked by the Commission with regard to the part to be
played by the individual before an international judicial body;
whereas, though recognising their force, the Court must bear in mind
the fact that none of the examples cited is that of an individual
appealing against the action of his own Government, while in the
present case, proceedings were instituted by Lawless against the State
of which he is a national; whereas, accordingly, the solution to this
question must be sought in the special nature of the procedure laid
down in the Convention; whereas, according to Article 44 (art. 44) of
the Convention, Contracting States and the Commission are alone
empowered to bring a case before the Court or to appear in Court;
whereas, nevertheless, the Court must bear in mind its duty to
safeguard the interests of the individual, who may not be a party to
any court proceedings, and whereas the whole of the proceedings in the
Court, as laid down by the Convention and the Rules of Court, are upon
issues which concern the Applicant; whereas, accordingly, it is in the
interests of the proper administration of justice that the Court
should have knowledge of and, if need be, take into consideration, the
Applicants's point of view; whereas to this end the Court has at its
disposal: in the first place, and in any event, the Commission's
Report, which of necessity sets out the Applicant's allegations with
regard to the facts and his legal arguments, even if it does not
endorse them; secondly, the written and oral observations of the
Delegates and counsel of the Commission which, as the defender of the
public interest, is entitled of its own accord, even if it does not
share them, to make known the Applicant's views to the Court as a means
of throwing light on the points at issue; and thirdly, the Court may
also hear the Applicant in accordance with Rule 38 of the Rules of
Court, and, as part of the enquiry, may invite the Commission, ex
officio, or authorise the Commission at its request, to submit the
Applicant's observations on the Report or on any specific point
arising in the course of the debates;

Whereas, in the present case, formal note must be taken of the
Commission's request for authorisation to submit the Applicant's
observations on the Report, but whereas the Court having been unable
as yet to examine the merits of the case, is not in a position to
reach a decision on this request and reserves its right to do so when
it deems fit;

For these reasons,
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THE COURT,

Takes note of the withdrawal by the Irish Government of the
preliminary objections set out in paragraphs 1 and 2 of their final
submissions in their Counter-Memorial and of the objections raised in
paragraph 7 of the same Counter-Memorial;

By 6 votes to 1,

rejects the objections relating to procedure raised by the said
Government in paragraphs 1, 3 and 4 of their final submissions;

declares that at this stage there is no reason to authorise the
Commission to transmit to it the Applicant's written observations on
the Commission's Report;

Decides unanimously to proceed to the examination of the merits of the
case.

Done in French and in English, the French text being authentic, at the
Council of Europe, Strasbourg, this fourteenth day of November 1960.

Signed: R. CASSIN
President

Signed: P. MODINOS
Registrar

Judge G. Maridakis, availing himself of his right under the terms of
Rule 50 (2) of the Rules of Court, annexes his dissenting opinion to
the present judgment.

Initialled: R. C.

Initialled: P. M.

DISSENTING OPINION OF MR. G. MARIDAKIS

(Translation)

According to Article 28 (art. 28) of the Convention, the Commission
shall, with a view to ascertaining the facts, undertake together with
the representatives of the parties an examination of the petition and,
if need be, an investigation.

Under Article 31 (art. 31), if a solution is not reached, the
Commission shall draw up a report on the facts and state its opinion
as to whether the facts found disclose a breach by the State concerned
of its obligations ... The opinions of all the members of the Commission
on this point may be stated in the Report.

According to paragraph 2 of the said Article 31 (art. 31-2), the
Report shall be transmitted to the Committee of Ministers, it shall
also be transmitted to the States concerned who shall not be at
liberty to publish it. For the purposes of the Convention the word
"trans-mitted" shall be understood to mean hand over an exact copy of
the Report to the Committee of Ministers and the States concerned.

From these provisions it can be deduced:

(1) that the duty of the Commission is to ascertain the facts;

(2) that, to this end, it shall undertake with the representatives of
the Parties an examination of the petition and if need be, an
investigation;

(3) that it shall draw up a report on the facts and state its
opinion ...;

(4) that it shall transmit the Report to the Committee of Ministers;

(5) that it shall also transmit the Report to the States concerned, who
shall not be at liberty to publish it.

It is apparent from the provisions read together that the jurisdiction
of the Commission as the body responsible for ascertaining the facts
and drawing up a Report ceases as soon as the Report has been
transmitted to the Committee of Ministers.

From this date begins the period of three months during which, under
Article 32 (art. 32) of the Convention, the Commission may refer the
question to the Court.

The provision contained in Rule 76 of the Rules of Procedure of the
Commission, that when a case is referred to the Court, the Secretary
of the Commission shall also in due course (?) communicate to the
Applicant the Commission's Report, is contrary to the Convention. If,
after the Report has been transmitted to the Committee of Minsters,
the Commission no longer has the powers conferred on it by Articles 28
and 31 (1) (art. 28, art. 31-1) a fortiori it has no further powers
after the case has been referred to the Court in accordance with
Article 48 (art. 48) of the Convention. From this moment the Court
has sole jurisdiction in the case. If the Court considers that
certain points of the Report need to be clarified and that the
Applicant is the only person capable of doing so, the Court may, as
sole judge call the Applicant and hear him, in accordance with Rule 38
of the Rules of the Court.

Under Rule 76, referred to above, of the Rules of Procedure of the
Commission, the Applicant may submit to the Commission his written
observations on the said Report and the Commission shall decide what
action, if any, shall be taken in respect of those observations.

Now, under Article 28 (art. 28) of the Convention, the Commission
undertakes an examination of the petition and, if need be, an
investigation.
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Consequently, if the Commission acts in accordance with the procedure
described above, since it may not amend its Report once it has been
transmitted to the Committee of Ministers and since, furthermore, the
case as a whole has been placed in the hands of the Court, what kind
of action could the Commission take in respect of the Applicant's
observations on the said Report? It is not entitled to present them
simply as they come from the Applicant, since Article 19 (art. 19) of
the Convention places the Commission above the Parties. If it were to
adopt these observations and submit them as its own, the Applicant
would be appearing before the Court under cover of the Commission.
But Article 44 (art. 44) of the Convention states that "only the High
Conctracting Parties and the Commission shall have the right to bring
a case before the Court."

The wording of this Article (art. 44) brings out its deeper
significance. It means that the Court has not been set up to settle
disputes between the Applicant and the State which he is accusing of
having violated, in his regard, its obligations under the Convention.
It means that the Court is a high supervisory authority set up to
guarantee the European order established by the Convention
(cf. Statute of the Council of Europe, Article 1 (b)).

Such being the conception contained in the Convention of the duties
devolving upon the Court, it is natural that the Applicant should not
be entitled to appear before it. If he had this right, it is clear
that the proceedings might degenerate into a simple legal action
between the Applicant and the State involved, whereas, in the spirit
of the Convention, the Court was set up not to judge disputes but "to
ensure the observance of the engagements undertaken in the present
Convention" (Article 19) (art. 19).

This is the only way of interpreting Article 31 (2) (art. 31-2) and
justifying the provision that the Commission's Report may be
transmitted only to the States concerned. The Applicant is the person
who claims to have been injured by the State concerned, but his allegation
only provides an opportunity - it could not be otherwise - of
considering whether or not that State respects its obligations under
the Convention. This is the explanation, too, of Article 31 (2)
(art. 31-2), whereby States are not at liberty to publish the Report
transmitted to them, and also of the provision in Article 32 (3)
(art. 32-3) that the Committee of Ministers is not entitled to publish
the Report.

But, if neither the States to whom the Report has been transmitted nor
the Committee of Ministers are at liberty to publish the Report a
fortiori the Commission has no right to do so. And, in substance, to
communicate the Report to the Applicant in the manner described in
Rule 76 of the Rules of Procedure of the Commission is to publish it.

The provision in the Convention prohibiting publication of the Report
has been inserted for a good purpose. When a State is accused of a
breach of its obligations assumed under the Convention, its prestige
suffers prejudice. The authors of the Convention thought that steps
should be taken to safeguard the prestige of such a State during the
proceedings. They therefore prohibited publication of the Report
which contains the opinions of the members (Article 31) (art. 31)
and merely prepares the ground for the final judgment to be rendered,
in accordance with the Convention, by the Court or, in some cases, by
the Committee of Ministers.

Unity is an important principle in all legal proceedings and by virtue
of this principle the weight to be given to the Applicant's
observations on the Commission's Report must be determined by the Court
alone.

The provision contained in Rule 76 of the Rules of Procedure of the
Commission, whereby the Commission decides what action, if any, shall
be taken in respect of the Applicant's observations, is contrary to
the above principle, since it confers on the Commission a discretionary
power incompatible with the powers of the Court which has sole
jurisdiction at the present stage.

For the above reasons, therefore, Rule 76 of the Rules of Procedure of
the Commission is contrary to the terms of the Convention.

However, although the Commission has no authority to communicate the
Report to the Applicant, it does not follow that the latter may not
take cognizance of it (in the course of contentious proceedings).

Since the Applicant has accused one of the Contracting Parties of a
breach of the undertakings given in the Convention, it is a principle
of equity (and of law in general) that he should not be denied any
means of taking cognizance of the Report. The only way to acquaint him
with the contents of the Report would be for the Registrar to invite
him to read it in his presence. Should he wish to make any
observations on it, the Court alone has power to decide in what form
they are to be presented.

This view does not derive from an abstract interpretation of the
Convention, nor does it amount to the Court declaring null and void
Rule 76 of the Rules of Procedure of the Commission. Both the
Commission and the Irish Government in their submissions, refer to
Rule 76 of the Commission's Rules of Procedure, but in order to weigh
up their respective arguments it must first be determined whether
Rule 76 complies with the terms of the Convention or not. It is clear
that this cannot be decided without interpreting the text of the
Convention.

True, the Court is not empowered to declare null and void Rule 76 of
the Commission's Rules of Procedure, but there is no doubt that the
Court has the right, and is in duty bound, to refuse to apply any of these
rules which it regards as contrary to the terms of the Convention, in
accordance with the principle of domestic law, whereby it is a judge's
duty to refrain from applying any legal provision which contravenes
the Constitution or any regulation which is contrary to law.

In interpretating the Convention with this end in view, it is clear
that the Court is not rendering an advisory opinion which could have
any force outside the context of the present case, but is simply
interpreting the Convention to support the arguments on which its
judgment of the case itself and its decisions in respect of the
preliminary objections and other incidental points are based, in
accordance with the definition of its jurisdiction in Article 45
(art. 45).

Signed: G. MARIDAKIS
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