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ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY - 40998/98 [2007] ECHR 1081 (13 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1081.html
Cite as:
[2007] ECHR 1081,
(2008) 47 EHRR 24
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THIRD
SECTION
CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES
v. TURKEY
(Application
no. 40998/98)
JUDGMENT
STRASBOURG
13 December 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Islamic Republic of Iran Shipping Lines v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy
Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40998/98) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Iranian shipping company
registered in Teheran (Iran), the Islamic Republic of Iran Shipping
Lines (“the applicant”), on 18 December 1997.
The
applicant was represented by Mr Timothy Marshall, Mr David Lloyd
Jones and Ms Jemina Stradford, lawyers practising in London. The
Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
The
applicant alleged that the seizure by the Turkish authorities of the
cargo aboard a Cypriot-owned vessel (“the Cape Maleas”)
of which it was time charterer had constituted an unjustified control
of use of property within the meaning of Article 1 of Protocol No. 1.
On
10 April 2003 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints
concerning the allegedly unjustified control of use of property and
alleged denial of right to a fair trial. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
facts of the case, as submitted by the parties,
may be summarised as follows.
1. Background to the case
By
a charter dated 12 September 1991 the applicant company chartered a
Cypriot-owned vessel called “the Cape Maleas” (“the
vessel”). The charter-party was on an amended New York Produce
Exchange time charter form, and was for a time-charter trip to the
South Iranian ports. The voyage duration was stated to be fifty days
and the intended service for the carriage of general cargo, steels
and commercial containers.
By
agreement between the parties, namely the applicant company and the
owner of the vessel, Seabeach Shipping Ltd, on 18 September 1991 the
charter party became subject to “Addendum No. 1”.
This provided that the applicant charterer could load 2,500 cubic
metres of “IMCO 1” cargo. The “IMCO 1”
denotes cargoes which fall within “Class 1 - Explosives”
category of the International Maritime Dangerous Goods Code.
The
applicant ordered the vessel to proceed to the port of Bourgas in
Bulgaria and, on 8 October 1991, further cargo commenced loading.
This consisted of a general cargo but also included a cargo of arms,
ammunition and military spare parts which fell within the “IMCO
Class 1” category (“The Arms Cargo”).
The
applicant's agent in Bourgas drew up bills of lading in respect of
the cargo, including the Arms Cargo (“The Bills of Lading”).
These Bills of Lading described the Arms Cargo as “special
equipment”, followed by a reference to a numbered contract. The
port of discharge for the “special equipment” was
specified as Tartous Sar in Syria. The shipper was stated to be
“Socotrade” and the consignee as “to order”.
The
applicant's agent in Bourgas also prepared a manifest of cargo. Like
the Bills of Lading, this described the Arms Cargo as
“special equipment”, and gave the port of discharge
as Tartous Sar. The applicant at all times intended that the Arms
Cargo should be discharged at the port of Bandar Abbas in Iran. The
vessel sailed from Bourgas at 7 p.m. on 21 October 1991 and was
ordered to proceed to Setubal in Portugal in order to load further
cargo. In order to reach Setubal from Bourgas, the vessel had to
transit through the Bosphorus.
2. The seizure of the vessel
On
22 October 1991 at about 3.30 p.m., the vessel was about to commence
transit through the Bosphorus. Before entering the Straits, the
Master of the vessel requested the assistance of a pilot for
navigation through the Bosphorus. The vessel was flying the
international signal flag to indicate that it carried dangerous
cargo.
As
a result of information received by the Turkish customs authorities
from a Turkish vessel, which had recently arrived from Bulgaria, the
Turkish authorities believed that the Arms Cargo on board the vessel
was bound for Cyprus, from where it would be smuggled into Turkey.
According
to the Turkish authorities, the vessel was first sighted when it was
ten miles outside the Straits. After the vessel had entered the
Straits, a pilot went on board and invited the Master to declare any
hazardous materials which were on board. The Master duly did so, and
the vessel proceeded for a few minutes through the Straits, before
the pilot instructed the Master to stop the engine of the vessel.
The
Turkish coast guard and other Turkish authorities boarded and seized
the vessel. Since the waters were rough at the point where the vessel
was stopped, it was towed by a military boat to the Turkish port of
Büyükdere. All parties to the case subsequently proceeded
on the basis that the seizure of the vessel had taken place in the
Straits governed by the Montreux Convention of 20 July 1936 (“The
Montreux Convention”).
At
Büyükdere the vessel was searched, and the Bills of Lading
and Manifest of Cargo examined. The Turkish authorities discovered
the Arms Cargo and questioned the Master of the vessel. The statement
entitled “Protocol of Facts”, in which the Turkish
authorities summarised their allegations and the actions which they
had taken in respect of the vessel, was prepared and signed by all
the officials who were present at the seizure and search of the
vessel. The Master, the First Officer and the Radio Operator of the
vessel were taken into custody by the Turkish authorities.
On
24 October 1991 statements were taken from the Master and First
Officer in the form of affidavits. These formed part of the file
which was submitted by the Public Prosecutor to a single judge of the
Istanbul State Security Court.
3. The proceedings before the Istanbul State Security
Court
On
28 October 1991, having examined the file and citing, inter alia,
Articles 5 and 6 of the Montreux Convention, a single judge of the
Istanbul State Security Court, approved the arrest of the vessel and
the detention of its crew, i.e. the Master, the First Officer and
Radio Operator. The judge referred in his decision to “systematic
weapon smuggling” and stated that the “evidence confirmed
that the aforementioned smuggled weapons could be used against the
security of the Republic of Turkey”.
On
30 October 1991 this decision was served on the lawyer instructed on
behalf of the vessel and the Master. The following day, the lawyer
filed an objection against the above decision, setting out the
relevant provisions of the Montreux Convention and noting that Turkey
was not in any state of war with any country within the meaning of
the provisions of its Constitution and that there was neither threat
of war, nor such a risk.
On
4 November 1991 the Istanbul State Security Court dismissed this
objection.
On
5 November the Chief Public Prosecutor at the Istanbul State Security
Court indicted the Master, the First Officer and the Radio Officer of
the vessel, charging them with organised transportation of firearms
and shells. In the Public Prosecutor's view, Turkey was at war with
Cyprus. He cited various decrees of the Turkish Parliament which had
authorised the sending of troops to Cyprus, and stated that:
“... notwithstanding the cease-fire achieved
through the efforts of the United Nations Organisation putting an end
to the armed conflict, no treaty having yet been signed, the state of
war is ongoing from a legal point of view. Consequently, it becomes
necessary to enforce Article 5 of the Montreux Convention. (...)
Pursuant to [Article 5 of the Montreux Convention], the
commercial vessels of countries at war with Turkey shall not enjoy
free passage through the Straits. Therefore, there being no right of
unrestricted passage through the Straits of a ship flying the Cypriot
flag and laden with weapons, the Turkish Government may exercise, for
its own security and based on its sovereign rights and Article 5 of
the said Convention, control over this ship and the weapons contained
therein.”
Since
the vessel was registered as a Cypriot ship and flew the Cypriot
flag, the Turkish authorities concluded that they had been entitled
under Article 5 of the Montreux Convention to seize the vessel and to
launch proceedings for arms smuggling.
During
November and December 1991 the Government of the Islamic Republic of
Iran sought the release of the vessel and its cargo through
high-level diplomatic meetings. The issue was raised at presidential
level and, on 11 November 1991, the Iranian Ambassador to Turkey
visited the Deputy Foreign Minister to deliver copies of one of the
Bills of Lading and of the Montreux Convention. This was intended to
establish that the Arms Cargo was indeed being carried on behalf of
the Iranian State.
By
a letter dated 12 November 1991 the Foreign Minister of Turkey wrote
to the Ministry of Justice giving an account of the meetings which
had taken place, enclosing copies of the Bill of Lading and the
Montreux Convention and offering to obtain further information on the
“special equipment” listed on the Bill of Lading.
By
a petition dated 13 November 1991 the lawyer acting on behalf of the
owners of the vessel and the Master, pointed out to the Istanbul
State Security Court that the assumption according to which Turkey
and Cyprus were at war with each other was the “crucial point”
of the case. He requested the Istanbul State Security Court to
enquire immediately of the Ministry of Foreign Affairs as to whether
a state of war existed. He also submitted that the Presidency of the
Parliament should be asked whether there had been a declaration of
war.
On
18 November 1991 the lawyer filed another petition with the court
reiterating that Turkey was not at war with any country
(Cyprus included) and seeking the release of the Master on bail.
On
25 November 1991 the lawyer submitted a petition to the Istanbul
State Security Court asking the court to rephrase the question which
it had put to the Turkish Ministry of Foreign Affairs. He objected to
the question which had been put, namely “whether the peace
operations in Cyprus have ended with a treaty of peace...”, and
submitted that the proper question to be asked was “whether the
Republic of Turkey is in a state of war or not with the State of
Cyprus”.
Under
cover of a petition dated 29 November 1991 the applicant's lawyer
sent to the Istanbul State Security Court translations of the
charter-party and the Bills of Lading. He explained that the nature
of a time charter was similar to a lease, and that the applicant
charterers had control over the cargo and its documentation.
The
Turkish Ministry of Foreign Affairs responded to the questions posed
by the Istanbul State Security Court in two letters dated 13 and
26 December 1991. The letters stated:
“... as there is no 'state of war' between Turkey
and any other country, including the Greek Cypriot Administration, it
is obvious that the seizure of the ship cannot be based on Articles 5
and 6 of the Montreux Convention. In fact, ships carrying the flag of
the Greek Cypriot Administration have always traversed the Straits
freely.
2. In the Note sent to our Ministry by the Iranian
Embassy in Ankara, it was stated that the arms found on the ship
belonged to Iran. This had been certified by the Iranian authorities
on several occasions.
On the other hand, Bulgarian authorities stated that the
said arms had officially been sold to Iran by an agreement signed
between Bulgaria and Iran in 1989 and that the arms had been loaded
in Bourgas.
3. Except for the limitations set out in Articles 4
and 5 of the Montreux Convention on the 'state of war', commercial
ships flying foreign flags enjoy full freedom of transit passage at
times of peace, whatever their flag and cargo may be. As stated
above, it is impossible to invoke the 'state of war' provisions of
the Montreux Convention in this case because no state of war with the
Greek Cypriot Administration exists. Moreover, in accordance with
customary international and treaty laws, ships have the 'right of
innocent passage' through the territorial waters of other
countries...”
On
16 December 1991 the Istanbul State Security Court issued a decision
for the release of the Master on bail, but ordered the seizure and
confiscation of the vessel and its cargo used for commission or
preparation of a crime.
On
10 January 1992 the Public Prosecutor filed his written observations
on the merits. He maintained his earlier position, relying upon
Article 5 of the Montreux Convention, contending that the vessel and
the Arms Cargo should be seized and the Master imprisoned.
By
January 1992 the applicant had concluded that attempts to secure the
release of the vessel and its cargo through diplomatic negotiations
were unlikely to succeed. The applicant applied through its Turkish
lawyer, Mr Aydın, to intervene in the proceedings before
the Istanbul State Security Court. In its application, the applicant
set out its interest in the case as the owner of the cargo and
stressed that the Arms Cargo was being carried as part of a normal
and legal commercial transaction and that Turkey was not at war with
any country. He therefore asked for the unconditional release of the
vessel and its cargo. The court ordered that the applicant be joined
as intervening party in the proceedings.
On
22 February 1992 the then Prime Minister of Turkey,
Mr Süleyman Demirel, issued a certificate which
stated:
“The Republic of Turkey is not in a state of war
with any country, Southern Cyprus included...”
By
a judgment of 12 March 1992 the Istanbul State Security Court
acquitted the First Officer and the Radio Operator, but convicted the
Master of the vessel of importing arms into Turkey without official
permission. It therefore sentenced him to five years' imprisonment
and a fine of fifty thousand Turkish liras. The court ordered that
the Arms Cargo and the vessel be confiscated pursuant to the final
paragraph of Article 12 of Law no. 6136, that the cargo other
than the arms be returned to the applicant and that the Master bear
the costs of the court hearing. With reference to a judgment of the
Court of Cassation in a similar case,
the Istanbul State Security Court held that in the present case there
was bad faith on the part of the applicant since the bill of lading
gave inaccurate information as to the contents of the cargo and the
route of the vessel. It noted that there was no justification for not
informing the Turkish authorities of Iranian weapons passing through
the Straits. The court further considered the following in relation
to the Montreux Convention:
“The second question is whether the Turkish
authorities were entitled to seize the munitions and weapons.
Pursuant to the relevant Article of the Montreux Convention, passage
of ships carrying firearms and owned by any state with which Turkey
is in a state of war is forbidden.
The other important issue is whether Turkey is in a
state of war with the Greek Cypriot State, or in other words, whether
a peace agreement has been reached after the war. It is known that
Turkey has engaged in war with the Greek Cypriot State, as a result
of which Cyprus has been divided into two sections, that the Turkish
Republic of Northern Cyprus has been established, that the Greek
Cypriot State has not recognised the Turkish Republic of Northern
Cyprus, and that until now, no agreement could be reached, and that
the interstate negotiations are in progress.
Therefore, the letter of the Ministry for Foreign
Affairs ... and the letter of the Prime Ministry ... were
disregarded.”
The
judgment went on to refer to the Vassoula case,
concerning another vessel, and concluded that “the existence of
the state of war has been confirmed”.
Following
the judgment of the Istanbul State Security Court, the applicant paid
the hire and expenses due to the owner and the charter-party
amounting to 1,161,374.50 US dollars. Although the judgment of the
Istanbul State Security Court had ordered the return of the non-arms
cargo to the applicant, it was not returned and by order dated 29 May
1992 the Istanbul Court of Commerce granted an injunction to the
owner of the vessel which imposed a lien of 4,111,168,608 Turkish
liras over the cargo to secure unpaid hire. The owner of the vessel,
the Seabeach Shipping Ltd., then commenced enforcement proceedings
for encashment of the lien over the cargo which belonged to the
applicant.
4. The appeal
On
13 March 1992 the applicant appealed against the judgment of the
Istanbul State Security Court. The applicant disputed the court's
conclusion that a state of war existed between Turkey and Cyprus. The
ground of appeal also questioned the legitimacy of the reliance which
the court had placed upon the earlier Vassoula case, and
pointed out that the arms cargo had only been in transit through the
Straits.
By
a decision of 3 June 1992 the Court of Cassation quashed the Istanbul
State Security Court's judgment. It held that there was no material
evidence in the file indicating that the arms would be discharged
from the vessel in Turkey. As regards the applicability of the
provisions of the Montreux Convention, the Court of Cassation held:
“... that the state of war mentioned in Article 4
of the Convention did not exist as also evidenced by the letters of
the Foreign Ministry and the Prime Minister which explicitly state
that 'Turkey is not in war with any country, including the Southern
Greek Cyprus Administration' (...) and that there is no room for
application of Article 6 of the Montreux Convention. ...”
The
case was remitted to the State Security Court for retrial.
By
a petition of 3 September 1992, pending the re-trial of the Master of
the vessel before the Istanbul State Security Court, the applicant
sought removal of the lien, which had been imposed by the Istanbul
Court of Commerce over the cargo.
On
8 September 1992 the Istanbul Court of Commerce refused the
applicant's request and therefore, on 18 September 1992, the
applicant agreed to pay to the owner some of the hire charges,
without prejudice as to liability. In return, the owner agreed to
relinquish its lien on the non-arms cargo. Under this agreement, the
applicant had to pay 80 % of the hire in respect of the period from
14 March 1992 to 13 September 1992 inclusive (1,118,074.40 US
dollars). The applicant also agreed to pay 100 % of future charges,
as and when the payments fell due. The owner provided to the
applicant a guarantee to repay the sum of 1,118,074.40 US dollars.
The applicant considered that it was obliged to pay the hire due,
otherwise the Istanbul Court of Commerce and the owner would not have
released the vessel and its cargo.
On
30 September 1992 the Istanbul State Security Court acquitted the
Master on re-trial. The Public Prosecutor's appeal against this
judgment was dismissed by the Court of Cassation's decision of 12
November 1992, which was approved on 13 November 1992.
On
18 November 1992 the Istanbul State Security Court ordered that the
vessel and the Arms Cargo should be released. The vessel left Turkey
on 8 December 1992 and was re-delivered to the owner by the
applicant under the terms of the charter-party on 9 March 1993.
5. The compensation proceedings
By
a written petition dated 22 July 1993 the applicant brought an action
before the Istanbul Court of Commerce claiming 38,087,249,964 Turkish
Liras (equivalent to 3,386,598.98 US dollars) plus interest against
the Ministry of Finance and Customs, with reference to the Ministry
of the Interior and the Ministry of Defence. The applicant based its
claim upon Article 41 of the Code of Obligations and submitted that
the seizure and detention of the vessel and its cargo was
unjustified. It argued in this connection that the arms and
ammunition belonged to the Islamic Republic of Iran, that as a result
of these tortious acts the vessel had been released after 413 days
and 2 hours and 30 minutes, which required it to pay USD 3,263,522.92
to the owner and USD 81,978.86 for fuel charges and USD 41,097.20 in
harbour fees.
The
petition went on to refer to and to distinguish the Vassoula
case, and to explain the circumstances in which the applicant was
forced to pay the hire charges and other expenses to the owner of the
vessel.
On
28 September 1994 a first expert report was submitted to the Court of
Commerce following its interlocutory order of 9 March 1994. The
experts advised that the applicant's claim should be declared
inadmissible, principally on the basis that the applicant had chosen
voluntarily and without legal compulsion to pay the hire charges
under the charter-party.
The
applicant objected to the first report and the Court of Commerce
ordered the preparation of a second expert's report on 11 November
1994.
On
3 April 1995 the second expert report was submitted to the court with
the conclusion that the applicant's claim should be rejected. This
second panel of experts considered that the owner of the vessel, but
not the applicant, could in appropriate circumstances claim
compensation from the Turkish State. They expressed the opinion that
the applicant's claim might succeed in relation to dock and fuel
expenses incurred, as well as supplementary losses under Article 105
of the Code of Obligations, but that the claim in respect of hire
charges should fail.
On
13 June 1995 the applicant filed an objection against the second
report and requested the court to rule on the case without obtaining
a further report, or alternatively to obtain a third expert report.
By
a decision dated 20 September 1995 the Istanbul Court of Commerce
dismissed the applicant's claim for compensation, holding that the
vessel was not a merchant vessel since it was carrying, in part, a
cargo of arms. It considered that the security authorities had only
carried out their statutory duty to investigate the serious
allegations of arms smuggling. The court therefore ruled that there
had been no breach of the Montreux Convention or of Turkish law, in
particular Article 41 of the Code of Obligations.
On
6 November 1995 the applicant appealed.
On
27 December 1996 the Court of Cassation dismissed the appeal and
upheld the judgment of the Istanbul Court of Commerce. The
applicant's request for rectification of this decision was rejected
by the Court of Cassation's further decision of 22 May 1997. The
latter decision was served on the applicant on 22 June 1997.
6. The London arbitration
The
charter-party provided, inter alia, that any dispute arising
under it should be referred to arbitration in London. As a result of
the seizure and subsequent detention of the vessel and its cargo by
the respondent Government, a dispute arose between the applicant and
the owner of the vessel concerning the hire charges and other
expenses paid by the applicant.
Following
arbitration proceedings in London, on 20 September 1995, the
arbitration panel decided that the charter-party had been frustrated
by the Istanbul State Security Court's decision of 12 March 1992. The
applicant therefore recovered from the owner of the vessel the hire
charges and other expenses which had been paid in respect of the
period after 12 March 1992, but was unable to recover
1,300,403.83 US dollars which it had paid or which it thereupon had
to pay to the owner in respect of the period between the seizure on
22 October 1991 and 12 March 1992.
7. The proceedings instituted by the owner of the
vessel and the cargo receiver
Meanwhile,
the owner of the vessel, Seabeach Shipping Ltd., brought an action in
the Beyoğlu Commercial Court in Istanbul claiming lien on the
cargo for the hire charges. In a decision of 29 May 1992 the Beyoğlu
Commercial Court accepted the owner's claim on the ground that it was
owed freight charges.
The
cargo receiver, the Mobarakeh Steel Complex, also brought an action
in the Beyoğlu Commercial Court claiming USD 2,236,208 for
damages from the Ministry of the Finance on behalf of the Ministry of
the Interior and the Ministry of Defence. It submitted that it had
lost profit as a result of the detention of its merchandise carried
on the vessel and that new commercial goods had been purchased in
order to replace the seized merchandise.
In
a judgment dated 17 January 2000 the Beyoğlu Commercial Court
dismissed this claim on the grounds that the seizure of the vessel
had been lawful since the arms cargo was not clearly indicated in the
bill of lading. On appeal by the plaintiff, the Court of Cassation
quashed the judgment. Relying on the outcome of the criminal
proceedings, the Court of Cassation noted that the goods in question
were not contraband or of a kind requiring them to be confiscated. On
that account, it held that the defendant must be liable for the
damage resulting from wrongful confiscation of the goods.
In
a judgment of 15 December 2000 the Beyoğlu Commercial Court
persisted in its earlier judgment and held that the plaintiff's claim
must be dismissed on the grounds that the seizure and detention of
the vessel complied with the domestic law and the Montreux Convention
governing the Straits. Taking into account the facts that the vessel
was sailing under the Cypriot flag and that there was an
inconsistency between the cargo and the documents, the court
considered that there was no unlawfulness in seizing the vessel. The
court further noted that the State of Turkey had acted with the aim
of preventing activities designed to undermine it. The plaintiff
again appealed against this judgment.
On
21 November 2000 the Court of Cassation sitting in full civil court
upheld the judgment of the Beyoğlu Commercial Court and
dismissed the action. It considered that, while under the Montreux
Convention merchant ships were entitled to innocent passage, this did
not outweigh Turkey's sovereign rights. This being so, any arms
trafficking would adversely affect Turkey and would thus mean that
that passage was no longer innocent. It further stated the following:
“...On the other hand, the bill of lading
described the 2,131 boxes opened as containing “Special
Equipment”. The Turkish Commercial Code specifies in Articles
1,098 and 1,114 the points to be included in the bill of lading. The
cargo received or loaded onto the vessel for transportation must be
described on the bill of lading in order for the acknowledgement of
receipt and the delivery contract to be complete... This description,
which is an essential element of the bill of lading, must be such as
to allow the cargo to be distinguished at all times from the other
cargoes on the vessel and must be complete. The carrier is obliged to
indicate on the bill of lading the amount, brand and external
appearance and characteristics of the cargo... Clearly, as is
apparent from the bills of lading in the case-file, these
indications, some of which are mandatory, were not included on the
bill of lading and invited suspicion.
A country may purchase the arms it needs for its defence
from another country, or may secure them by means such as aid or
donations. In other words, arms-trading between states is a normal
and lawful procedure. Transportation of these arms is also normal and
lawful. Arms purchased and transported must be indicated clearly, as
they are, on the bill of lading and other documents, in accordance
with international rules. There should be no need to conceal them or
make use of other channels. The file did not include a sales contract
to the effect that the party sending these arms had purchased them
lawfully, nor did it include any evidence to the effect that a letter
of credit had been opened by banks. Given the manner in which the
arms were loaded onto the vessel, it was essential from the point of
view of Turkey's security to inspect the vessel. In the matter of
innocent passage, the coastal state has the right to impose sanctions
on the vessel and cargo in accordance with the rule on the prevention
of non-innocent passage which stems from customary law and the
Montreux Convention. The Montreux Convention, customary law and the
principle of ex aequo et bono do not prevent Turkey from
exercising this right. For these reasons, the trial court's decision
to dismiss the action must be upheld on the grounds that it is in
conformity with the law and with statutory procedure.”
II. RELEVANT DOMESTIC LEGAL MATERIALS AND DOMESTIC LAW
A. The Montreux Convention of 11 December 1936
The
former signatories to the Treaty of Lausanne (1923) together with
Yugoslavia and Australia, met at Montreux, Switzerland, in 1936 and
abolished the International Straits Commission, returning the Straits
zone to Turkish military control. Turkey was authorised to close the
Straits to warships of all countries when it was at war or threatened
by aggression. Merchant ships were to be allowed free passage during
peacetime and, except for countries at war with Turkey, during
wartime. The convention was ratified by Turkey, Great Britain,
France, the USSR, Bulgaria, Greece, Germany, and Yugoslavia, and—with
reservations—by Japan. The preamble of the Convention stated
that the desire of the [parties] was to regulate transit and
navigation in the Straits of the Dardanelles, the Sea of Marmara and
the Bosphorus comprised under the general term “Straits”
in such manner as to safeguard, within the framework of Turkish
security and of the security, in the Black Sea, of the riparian
States, [pursuant to] the principle enshrined in Article 23 of the
Treaty of Peace signed at Lausanne on the 24th July, 1923.
Article 1
“The
High Contracting Parties recognise and affirm the principle of
freedom of transit and navigation by sea in the Straits.
The
exercise of this freedom shall henceforth be regulated by the
provisions of the present Convention.”
Article 2 §§ 1 and 2
“In
time of peace, merchant vessels shall enjoy complete freedom of
transit and navigation in the Straits, by day and by night, under any
flag and with any kind of cargo, without any formalities, except as
provided in Article 3 below.
In
order to facilitate the collection of these taxes or charges merchant
vessels passing through the Straits shall communicate to the
officials at the stations referred to in Article 3 their name,
nationality, tonnage, destination and last port of call
(provenance).”
Article
3
“All
ships entering the Straits by the Aegean Sea or by the Black Sea
shall stop at a sanitary station near the entrance to the Straits for
the purposes of the sanitary control prescribed by Turkish law within
the framework of international sanitary regulations. This control, in
the case of ships possessing a clean bill of health or presenting a
declaration of health testifying that they do not fall within the
scope of the provisions of the second paragraph of the present
Article, shall be carried out by day and by night with all possible
speed, and the vessels in question shall not be required to make any
other stop during their passage through the Straits.
Vessels
which have on board cases of plague, cholera, yellow fever exanthemic
typhus or smallpox, or which have had such cases on board during the
previous seven days, and vessels which have left an infected port
within less than five times twenty-four hours shall stop at the
sanitary stations indicated in the preceding paragraph in order to
embark such sanitary guards as the Turkish authorities may direct. No
tax or charge shall be levied in respect of these sanitary guard and
they shall be disembarked at a sanitary station on departure from the
Straits.”
Article 4 § 1
“In
time of war, Turkey not being belligerent, merchant vessels, under
any flag or with any kind of cargo, shall enjoy freedom of transit
and navigation in the Straits subject to the provisions of Articles 2
and 3.”
Article
5 § 1
“In
time of war, Turkey being belligerent, merchant vessels not belonging
to a country at war with Turkey shall enjoy freedom of transit and
navigation in the Straits on condition that they do not in any way
assist the enemy.”
Article 6 § 1
“Should
Turkey consider herself to be threatened with imminent danger of war,
the provisions of Article 2 shall nevertheless continue to be applied
except that vessels must enter the Straits by day and their transit
must be effected by the route which shall, in each case, be indicated
by the Turkish authorities.”
Article
24
“The
functions of the International Commission set up under the Convention
relating to the regime of the Straits of the 24th July, 1923, are
hereby transferred to the Turkish Government.
The
Turkish Government undertake to collect statistics and to furnish
information concerning the application of Article 11,12, 14 and 18 of
the present Convention.
They
will supervise the execution of all the provisions of the present
Convention relating to the passage of vessels of war through the
Straits.
As
soon as they have been notified of the intended passage through the
Straits of a foreign naval force the Turkish Government shall inform
the representatives at Angora of the High Contracting Parties of the
composition of that force, its tonnage, the date fixed for its entry
into the Straits, and, if necessary, the probable date of its return.
The
Turkish Government shall address to the Secretary-General of the
League of Nations and to the High Contracting Parties an annual
report giving details regarding the movements of foreign vessels of
war through the Straits and furnishing all information which may be
of service to commerce and navigation, both by sea and by air, for
which provision is made in the present Convention.”
Article
25
“Nothing
in the present Convention shall prejudice the rights and obligations
of Turkey, or of any of the other High Contracting Parties members of
the League of Nations, arising out of the Covenant of the League of
Nations.”
B. The United Nations Convention on the Law of the Sea
of 10 December 1982
Relevant
provisions provide as follows:
Article 35
Scope of this Part
“Nothing in this Part affects:
a) any areas of internal waters within a strait,
except where the establishment of a straight baseline in accordance
with the method set forth in article 7 has the effect of
enclosing as internal waters areas which had not previously been
considered as such;
(b) the legal status of the waters beyond the
territorial seas of States bordering straits as exclusive economic
zones or high seas; or
(c) the legal regime in straits in which passage is
regulated in whole or in part by long-standing international
conventions in force specifically relating to such straits.”
Article 37
“This section applies to straits which are used
for international navigation between one part of the high seas or an
exclusive economic zone and another part of the high seas or an
exclusive economic zone.”
Article 38
Right of transit passage
“1. In straits referred to in article 37, all
ships and aircraft enjoy the right of transit passage, which shall
not be impeded; except that, if the strait is formed by an island of
a State bordering the strait and its mainland, transit passage shall
not apply if there exists seaward of the island a route through the
high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical
characteristics.
2. Transit passage means the exercise in accordance
with this Part of the freedom of navigation and overflight solely for
the purpose of continuous and expeditious transit of the strait
between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone. However,
the requirement of continuous and expeditious transit does not
preclude passage through the strait for the purpose of entering,
leaving or returning from a State bordering the strait, subject to
the conditions of entry to that State.
3. Any activity which is not an exercise of the
right of transit passage through a strait remains subject to the
other applicable provisions of this Convention.”
Article 39
Duties of ships and aircraft during transit passage
“1. Ships
and aircraft, while exercising the right of transit passage, shall:
(a) proceed
without delay through or over the strait;
(b) refrain from any threat or
use of force against the sovereignty, territorial integrity or
political independence of States bordering the strait, or in any
other manner in violation of the principles of international law
embodied in the Charter of the United Nations;
(c) refrain
from any activities other than those incident to their normal modes
of continuous and expeditious transit unless rendered necessary by
force majeure or by distress;
(d) comply
with other relevant provisions of this Part.
2. Ships
in transit passage shall:
(a) comply
with generally accepted international regulations, procedures and
practices for safety at sea, including the International Regulations
for Preventing Collisions at Sea;
(b) comply
with generally accepted international regulations, procedures and
practices for the prevention, reduction and control of pollution from
ships.”
C. The Code of Obligations
This
provides as relevant:
Article 41
“Every person who causes damage to another in an
unjust manner, whether wilfully, or negligently and carelessly or
imprudently is obliged to compensate that damage”
The
civil courts are not bound by either the findings or the verdict of
the criminal court (Article 53).
D. Law no. 6136 of 15 July 1953 (as amended by law nos.
2249 and 2478 of 12 June 1979 and 23 June 1981 respectively)
Article
12 makes it an offence to smuggle, to attempt to smuggle or to assist
in smuggling firearms or bullets into the country.
E. Article 36 of the now defunct Turkish Criminal Code
Article
36 of the Turkish Criminal Code, which was in force at the relevant
time prescribed, the seizure and confiscation of objects which were
used for commission or preparation of a crime.
F. Article 90 § 5 of the Turkish Constitution
Relevant
parts of Article 90 § 5 provide:
“International agreements duly put into effect
bear the force of law... In case of a conflict between international
agreements in the area of fundamental freedoms and rights duly put
into effect and the domestic laws due to differences in provisions on
the same matter, the provisions of international agreements shall
prevail.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant complained that the seizure by the Turkish authorities of
the vessel and its cargo had constituted an unjustified control of
use of property within the meaning of Article 1 of Protocol No. 1,
which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
1. The Government's submissions
The
Government alleged that the applicant company did not have locus
standi and that it therefore was not entitled to lodge an
application under Article 34 of the Convention. They contended, in
the alternative, that the applicant had failed to comply with the
six-month rule in respect of these complaints.
The
Government submitted that the applicant company was a state owned
corporation which could not be considered to be, de jure or de
facto, distinct from the Government of the Islamic Republic of
Iran. At the time this application was lodged, the total shares of
the applicant company had been owned by the state.
However,
in January 2000, 51 % of the company's shares had been transferred to
the Social Security Organisation and the State Pension Fund, which
were public-sector organisations under the control of the state.
According to Articles 9, 10 and 13 of the Memorandum of Association
of the applicant company, 3/5th of the members of the
board of directors were appointed by the state, which owned class A
shares. Any class A share conferred the right of vote, which was
equal to two votes of class B shares (owned by the Social Security
Institution and the State Pension Fund) in the extraordinary general
assembly held for the modification of the Memorandum of Association.
Furthermore, Article 18 of the Memorandum provided that all decisions
of the board should be taken by a majority of the attending members.
Thus, bearing in mind that three members of the board were
representatives of the state, it was impossible to pass an adverse
resolution against the instructions of the State. Accordingly, the
present application was lodged by a State which is not a party to the
Convention.
Furthermore,
the established case-law of the Convention institutions indicate that
public corporations were not entitled to bring an application under
Article 34 of the Convention (see, Radio France and Others v.
France (dec.), no. 53984/00, ECHR 2003 X (extracts);
Ayuntamiento de M v. Spain, no. 15090/89, Commission decision
of 7 January 1991, DR 68, p. 209; and 16 Austrian Communes
and some of their Councillors v. Austria, nos. 5767/72, 5922/72,
5929-5931/72, 5953-5957/72, 5984 5988/73 and 6011/73, Yearbook
XVII (1974), p. 338 and 352).
The
Government finally asserted that the applicant did not file these
complaints within six months of the deposition of the final decision
with the registry of the Istanbul Court of Commerce. Referring to the
Court's decision in the case of Tahsin İpek v. Turkey
(application no. 39706/98, 7 November 2000), they claimed
that six months had started to run from 12 June 1997, the date
on which the Court of Cassation's final decision was deposited with
the registry of the Beyoğlu Commercial Court, and that these
complaints had been introduced on 18 December 1997, which was more
than six months later.
In
sum, given that the applicant company lacked locus standi as a
government corporation, the application should be declared
inadmissible as being incompatible ratione personae.
Alternatively, it should be declared inadmissible for failure to
comply with the six month rule.
2. The applicant's arguments
The
applicant disputed the Government's submissions. It claimed that it
was a company limited by shares, with a salaried board of directors
and articles of association. It was at all material times registered
as an independent entity under the applicable Iranian trade law. It
was run as a commercial business and operated in a sector that was
open to competition. In no sense did it have a monopoly or a special
position in that sector. Thus, just as in the Radio France
case (cited above), the applicant was essentially subject to the
legislation on incorporated companies, exercised no powers which were
not subject to the ordinary law in the exercise of its activities and
was subject to the ordinary courts. It is therefore in law and in
fact a separate legal entity distinct from the Government of Iran as
provided by Article 3 of the Memorandum of Association. Since January
2000, 51% of the shares in the applicant had been owned by private
shareholders.
Furthermore,
the fact that the applicant was incorporated in Iran, a State which
was not a party to the Convention, was of no relevance. There was no
requirement that an applicant should be a citizen of the respondent
State or indeed of any Council of Europe Member State.
As
regards the Government's reliance on cases concerning the standing of
communes and municipalities, the applicant pointed out that it was in
no sense such an organ of local or central government. Rather, it was
a separate corporate body at the time of the unlawful and unjustified
arrest of the vessel.
In
view of the above, the applicant claimed that it was not, at the time
of the arrest of the vessel or subsequent court proceedings, a
“governmental organisation” in the relevant sense. It has
accordingly locus standi to bring an application under
Article 34 of the Convention.
Finally,
the applicant submitted that the Court of Cassation's final decision
had been served on its lawyer on 22 June 1997 and that the
application was lodged on 18 December 1997. Therefore, these
complaints had been introduced within six months' time-limit.
3. The Court's considerations
As
regards the first limb of the Government's objections, the Court
observes that a legal entity “claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in the Convention and the Protocols thereto” may submit
an application to it (see, for example, Agrotexim and Others v.
Greece, judgment of 24 October 1995, Series A no. 330-A, and
Société Faugyr Finance S.A. v. Luxembourg
(dec.), no. 38788/97, 23 March 2000), provided that it is a
“non governmental organisation” within the meaning
of Article 34 of the Convention (see, RENFE
v. Spain, no. 35216/97, Commission decision
of 8 September 1997, DR 90, p. 179).
The
term “governmental organisations”, as opposed to
“non governmental organisations” within the meaning
of Article 34, includes legal entities which participate in the
exercise of governmental powers or run a public service under
government control. In order to determine whether any given legal
person other than a territorial authority falls within that category,
account must be taken of its legal status and, where appropriate, the
rights that status gives it, the nature of the activity it carries
out and the context in which it is carried out, and the degree of its
independence from the political authorities (see, Radio France and
Others, cited above).
In
the light of the above principles, the Court notes that the applicant
is a corporate body which carries out commercial activities subject
to the ordinary law of the Republic of Iran. It neither participates
in the exercise of governmental powers nor has a public-service role
or a monopoly in a competitive sector (see, in this respect, the
Holy Monasteries v. Greece, judgment of 9 December 1994, Series A
no. 301-A, p. 28, § 49; and more recently,
Österreichischer Rundfunk v. Austria, no. 35841/02, §§
48-54, 7 December 2006). Although at the time of the events
giving rise to the present application, the applicant company was
wholly owned by the State and currently an important part of its
shares still belong to the State and a
majority of the members of the board of directors are appointed by
the State, it is legally and financially independent of the State as
transpires from Article 3 of the Memorandum of Association. In this
respect the Court recalls that in the Radio France case, which
was relied on by the Government, it found that the national company
Radio France was a “non-governmental organisation” within
the meaning of Article 34 of the Convention despite the facts that
the State held all of the capital in Radio France; its memorandum and
articles of association were approved by decree; its resources were
to a large extent public; it performed “public-service missions
in the general interest; and it was obliged to comply with terms of
reference and to enter into a contract with the State setting out its
objectives and means. Therefore, it follows that public-law entities
can have the status of “non-governmental organisation” in
so far as they do not exercise “governmental powers”,
were not established “for public-administration purposes”
and are completely independent of the State (see, the Holy
Monasteries, cited above, § 49).
That
being so, it is true that governmental bodies or public corporations
under the strict control of a state are not entitled to bring an
application under Article 34 of the Convention (see, the above-cited
cases of Radio France; Ayuntamiento de M; 16
Austrian Communes and some of their Councillors; and RENFE).
However, the idea behind this principle is to prevent a Contracting
Party acting both as an applicant and respondent party before the
Court. The circumstances of the present case are therefore different
from those cited by the Government and the fact that the applicant
was incorporated in a state which is not party to the Convention
makes no difference in this respect. Furthermore, the Court finds
that the applicant company is governed essentially by company law,
does not enjoy any powers beyond those conferred by ordinary law in
the exercise of its activities and is subject to the jurisdiction of
the ordinary rather than the administrative courts. Having regard to
the foregoing, the Court considers that the applicant company is run
as a commercial business and that therefore there is nothing to
suggest that the present application was effectively brought by the
State of the Islamic Republic of Iran which is not a party to the
Convention.
82. It
follows that the applicant is entitled to bring an application under
Article 34 of the Convention and that therefore the first part of the
Government's objections should be dismissed.
83. As
regards the second limb of the Government's objection, namely the
alleged failure of the applicant to comply with the six month rule,
the Court notes that the Government relied on its decision in the
Tahsin İpek
case which concerned the failure of the applicant to procure the
judgment of the Court of Cassation for more than six months after it
had been deposited with the registry of the assize court. In this
connection, it recalls that its findings in the Tahsin
İpek case applied solely to criminal
proceedings since, according to the established practice of the Court
of Cassation, the latter's decisions in criminal cases are not served
on the defendants. In civil law cases, however, the Court of
Cassation's decisions are served on the parties upon payment of the
postage fee having been made in advance. Given that the proceedings
in the instant case are of a civil nature and that the applicant
lodged its application within six months of the service of the Court
of Cassation's final decision, it must be considered to have complied
with the six month rule laid down in Article 35 § 1 of the
Convention.
84. Accordingly, the Government's objection
concerning the alleged failure to observe the six month rule must
also be dismissed. The Cour finds furthermore that this part
of the application is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention, and that it is not
inadmissible on any other grounds. This complaint must therefore be
declared admissible.
B. Merits
The
Court notes that the parties did not contest that the matters
complained of constituted an interference with the peaceful enjoyment
of the applicant's possessions. Accordingly, it must next determine
the applicable rule in the instant case.
1. The applicable rule
The
Court reiterates that Article 1 of Protocol No. 1 comprises three
distinct rules. The first rule, which is set out in the first
sentence of the first paragraph, is of a general nature and
enunciates the principle of the peaceful enjoyment of property. The
second rule, contained in the second sentence of the first paragraph,
covers deprivation of possessions and subjects it to certain
conditions. The third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, amongst other
things, to control the use of property in accordance with the general
interest, by enforcing such laws as they deem necessary for the
purpose. However, the rules are not “distinct” in the
sense of being unconnected. The second and third rules are concerned
with particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, AGOSI
v. the United Kingdom, judgment of 24 October 1986, Series A no.
108, p. 17, § 48).
The
Court notes that the parties did not comment on the rule applicable
to the case. It considers that in this case there was neither a
confiscation nor a forfeiture, as the applicant company regained the
possession of the cargo following a temporary detention of the
vessel. It therefore amounted to control of the use of property.
Accordingly, the second paragraph of Article 1 is applicable in the
present case (see Air Canada v. the United Kingdom, judgment
of 5 May 1995, Series A no. 316 A, p. 16, § 34).
2. Compliance with the conditions in the second
paragraph
It
remains to be decided whether the interference with the applicant's
property rights was in conformity with the State's right under the
second paragraph of Article 1 of Protocol No. 1 “to enforce
such laws as it deems necessary to control the use of property in
accordance with the general interest”.
(a) Lawfulness and object of the interference
(i) The Government's arguments
The
Government submitted that the authorities had searched the vessel on
suspicion of organised arms smuggling into Turkey. The arms cargo had
thus been seized in accordance with Article 12 of Law No. 6136 and
Article 36 of the now defunct Turkish Criminal Code as well as
Articles 2 and 25 of the Montreux Convention and Articles 19 § 2
and 39 of the United Nations Convention on the Law of the Sea of 10
December 1982 (“UNCLOS”). The aforementioned provisions
of the Montreux Convention and UNCLOS empowered the Government to
limit the transit passage of the commercial vessels through the
Straits if the vessels posed a threat to the sovereignty, territorial
integrity or political independence of the State or in any other
manner violated the principles of international law embodied in the
Charter of the United Nations. In this connection, arms smuggling was
a threat to international peace and order and in violation of the
principles of international law and customs. Thus, the provisional
seizure of the arms cargo was necessary for prevention of crime and
protection of public safety in accordance with the general interest.
(ii) The applicant's arguments
The
applicant contended that the arrest and detention of the vessel and
its cargo were unjustified since there was no evidence indicating
that an offence had been committed or would be committed. The
impugned measures were also not in accordance with the
principles of international law within the meaning of Article 1 of
Protocol No. 1. The Montreux Convention, which was lex specialis
in the instant case, conferred in its Articles 1 to 3 complete
freedom of transit and navigation on merchant vessels in the Straits.
In particular, Article 3 made it clear that merchant vessels should
not be required to make any stop during their passage through the
Straits, with the exception of sanitary control which might be
imposed by Turkish law within the framework of international sanitary
regulations.
As
regards the Government's reliance on the UNCLOS, the applicant
pointed out that Turkey was not a party to it and that, in any event,
it could not have any application to the Bosphorus or the
Dardanelles, passage through which was regulated by the Montreux
Convention. The latter convention was incorporated into the domestic
law of Turkey. In view of the Court of Cassation's ruling that there
was no evidence to the effect that the arms were to be introduced
into Turkey and unloaded there and that the Turkish authorities'
reliance on Articles 5 and 6 of the Montreux Convention was wholly
erroneous, the seizure of the vessel and its cargo was contrary to
the domestic law of Turkey.
(iii) The Court's considerations
The
Court notes that the parties admitted that there was some legal basis
for the interference with the control of use of the applicant's
property; they however disagreed on the exact meaning and scope of
the applicable law. It further notes that during various stages of
the national proceedings also the views differed on the scope of
applicability of the Montreux Convention, rules of customary
international law governing the transit passage through straits and
provisions of national law prohibiting arms smuggling. Although at
the early stages of the proceedings the national courts relied on
Article 5 of the Montreux Convention in justifying Turkey's right to
seize the arms cargo because of the continuing state of war with
Cyprus, in its observations before the Court, the Government's
arguments hinged upon the application of the legislation prohibiting
arms smuggling, which undermines international peace.
The
Court accepts that the Montreux Convention is lex
specialis as concerns the transit
regime through the Bosphorus. In this connection, it notes the
points of conflicting interpretation of the Convention raised by the
parties. The Court considers however that it is not its role in the
circumstances of this case to pronounce on the interpretation and
application of the
Montreux regime by Turkey, since in the view of the Court, there was
an arbitrary interference with the applicant's property rights for
the following reasons.
(b) Proportionality of the interference
The
Court reiterates that an interference, particularly one falling to be
considered under the second paragraph of Article 1 of Protocol No. 1,
must strike a “fair balance” between the demands of the
general interest and the requirements of the protection of the
individual's fundamental rights. The concern to achieve this balance
is reflected in the structure of Article 1 as a whole, and therefore
also in its second paragraph. There must be a reasonable relationship
of proportionality between the means employed and the aim pursued. In
determining whether this requirement is met, the Court recognises
that the State enjoys a wide margin of appreciation with regard both
to choosing the means of enforcement and to ascertaining whether the
consequences of enforcement are justified in the general interest for
the purpose of achieving the object of the law in question (see Air
Canada, cited above, § 48).
The
Court notes that neither the applicant nor the Government commented
on the proportionality of the interference. They limited themselves
to comments on the lawfulness and purpose of the interference.
Be
that as it may, in order to assess the proportionality of the
interference, the Court has to examine the degree of protection from
arbitrariness that is afforded by the proceedings in this case and
whether a total lack of compensation can be considered justifiable
under Article 1 of Protocol No. 1.
In
the present case, the vessel carrying the cargo belonging to the
applicant was arrested on 22 October 1991 and detained until 8
December 1992, i.e. the date on which the vessel left Turkey by the
order of the Istanbul State Security Court. As noted above, the
authorities' suspicion that the vessel was involved in international
arms smuggling provided the justification for the arrest of the
vessel. However, that suspicion was dispelled by the Minister of
Foreign Affairs' letter of 12 November 1991, which informed the
Istanbul State Security Court via the Ministry of Justice that the
arms cargo belonged to the Islamic Republic of Iran (see paragraphs
22 and 23 above). The prosecuting authorities however also attached
fundamental importance to the fact that there was an ongoing state of
war between Turkey and Cyprus and that therefore the vessel was not
entitled to free passage through the Straits within the meaning of
Article 5 of the Montreux Convention (see paragraph 20 above). Yet
this assertion was also refuted by the Ministry of Foreign Affairs,
which responded to the Istanbul State Security Court's questions in
letters dated 13 and 26 December 1991, and the then Prime Minister's
certificate dated 22 February 1992 (see paragraphs 28 and 32 above).
Despite this information, the Istanbul State Security Court instead
relied on an old, and isolated precedent, the Vassoula case
which had been decided in 1978 and which concerned very different
circumstances, in concluding that there was a state of war between
Turkey and Cyprus and that, therefore, the detention of the vessel
and arms cargo should be continued (see paragraphs 33-35 above). It
gave no reasons for rejecting the statements and certification from
the relevant State officials and representatives on the non-existence
of a state of war.
In
view of the above, the Court considers that the vessel and its cargo
should have been released, at the latest, on 12 March 1992, when the
State Security Court issued its decision, and that their detention
from the aforementioned date onwards was arbitrary since there was no
basis for suspecting an offence of smuggling of arms or any general
power to seize the ship due to a state of war between Turkey and
Cyprus.
Furthermore, the Court observes that the compensation
proceedings are also material to the assessment whether the contested
interference in this case respected the requisite fair balance and,
notably, whether it imposed a disproportionate burden on the
applicant. In this connection, the arbitrary control of use of a
property for a prolonged period of time without justification will
normally constitute a disproportionate interference and a total lack
of compensation can be considered unjustifiable under Article 1 of
Protocol No. 1 (see, mutatis mutandis, the Holy
Monasteries, cited above, §§ 70-71; and Papachelas
v. Greece [GC], no. 31423/96, § 48, ECHR 1999 II).
In
that regard, the Court notes that the applicant's claim for
compensation of the damage it had sustained was dismissed by the
Beyoğlu Court of Commerce, which held that the vessel was not a
merchant vessel since it was carrying, in part, a cargo of arms and
that its passage was therefore not innocent within the meaning of the
Montreux Convention (see paragraphs 49 and 58 above).
The
Court recalls that the Court of Cassation had already found that
there was no offence of arms smuggling and that Article 6 § 1 of
the Montreux Convention did not apply (see paragraph 37 above).
Accordingly, even though the civil courts were not bound by the
findings of the criminal courts (see paragraph 60 above), the reasons
given by the Beyoğlu Court of Commerce were not capable of
justifying its decision to deprive the applicant of its claims for
compensation for damage suffered as from 12 March 1992 (see
paragraph 99 above).
The
foregoing considerations are sufficient to enable the Court to
conclude that the authorities' interference with the applicant's
rights is disproportionate and unable to strike a fair balance
between the interests at stake.
There
has accordingly been a violation of Article 1 of Protocol No. 1
to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant also complained that the initial seizure and
subsequent detention of the vessel “Cape Maleas” and the
exercise of criminal jurisdiction over the officers and the vessel
had constituted an infringement of public international law, the
Montreux Convention and Turkish law. It relied on Article
6 § 1 of the Convention which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
The
Government contended that these complaints had been introduced out of
six months since the criminal proceedings had become final by the
Istanbul State Security Court's judgment of 13 November 1992 and the
application had been introduced on 18 December 1997.
The
applicant contested the Government's submissions. It argued that the
harm suffered by the applicant as a result of the initial seizure and
detention of the vessel was potentially compensatable in damages.
Accordingly, the applicant brought compensation proceedings before
the Turkish courts and the application had been lodged only after the
conclusion of those proceedings.
The
Court notes that it is not required to determine whether the
applicant complied with the six month rule since this part of the
application is inadmissible for the following reasons.
It
reiterates that, according to Article 34 of the Convention, it may
receive applications from any person claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto. This provision
requires that an individual applicant should claim to have been
directly and actually affected by the violation he alleges (see,
Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, pp. 90–91, §§ 239–240).
The
Court notes that in the circumstances of the present case, the
criminal proceedings were brought against only the crew of the
vessel. The applicant has not demonstrated that any criminal
proceedings were brought against it. Furthermore, the applicant has
successfully appealed to the Court of Cassation and secured the
release of the cargo, which belonged to it. Accordingly, the
applicant cannot claim to be a victim, within the meaning of Article
34 of the Convention, of a violation of the Convention provision it
invokes.
This
part of the application is therefore incompatible ratione personae
with the provisions of the Convention and must be rejected pursuant
to Article 35 § 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 1,195,429.17 US dollars (USD) (approximately EUR
879,270) in respect of pecuniary damage. This amount consisted of the
following:
- USD
1,043,900 (EUR 766,885) for the hire paid to the owners of the
vessel during the period of detention between 22 October 1991 and
12 March 1992;
- USD
76,862.50 (EUR 56,470) for the cost of gas oil used by the vessel
while in detention; and
- USD 74,666.67 (EUR 54,860) paid to the owners of the vessel,
following London arbitration, in respect of the agency fees incurred
by them for the period between 22 October 1991 and 12 March 1992
(USD 12,166.67) and in respect of the reimbursement of Turkish
legal fees incurred by the owners (USD 62,500).
The
Government submitted that no award should be made under this heading
since the alleged damage in question had been caused by the
applicant, which had given untrue information about the nature of the
cargo. They further claimed that the amounts claimed were
unsubstantiated.
The
Court reiterates that there must be a clear causal link between the
damage claimed by the applicant and the violation of the Convention
(amongst other authorities, Barberà, Messegué and
Jabardo v. Spain (former Article 50), judgment of 13 June 1994,
Series A no. 285-C, pp. 57 58, §§ 16-20).
In this context, the
Court accepts that the applicant company suffered damages as a result
of disproportionate interference by the authorities with its rights
under Article 1 of Protocol No. 1. However, it notes that
the applicant has already recovered the losses it sustained in
respect of the period after 12 March 1992 in the London
arbitration proceedings (see paragraph 53 above). The applicant's
claim for damages thus relates only to the period between
the date of the vessel's arrest and 12 March 1992. In this
connection, the Court recalls its finding that the vessel and its
cargo should have been released, at the latest, on 12 March 1992 and
that their detention from that date onwards was arbitrary (see
paragraph 98 above). It considers therefore that no award should be
made under this heading for the period before 12 March 1992. It
follows that the applicant's claims for pecuniary damage must be
dismissed.
B. Costs and expenses
The
applicant also claimed 31,060 pounds sterling (GBP) (approximately
EUR 45,870) for the costs and expenses incurred for preparation and
presentation of its case before the Court. This sum included fees for
work done by its representatives in the proceedings before the Court.
The
Government contended that the amount claimed was excessive and
unjustified.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court is not satisfied that all the
costs and expenses were necessarily and actually incurred. It
considers that part of the amounts claimed by the legal
representatives for consultations between themselves are exaggerated.
The Court also considers excessive the total number of hours of legal
work and the hourly rate claimed in respect of the applicant's
lawyers. It therefore finds that it has not been proved that all
those legal costs were necessarily and reasonably incurred. Having
regard to the details of the claims and vouchers submitted by the
applicant, the Court considers it reasonable to award the sum of EUR
35,000 for costs and expenses before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 1 of
Protocol No. 1 to the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 35,000 (thirty-five
thousand euros) for costs and expenses, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
