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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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