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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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