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BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
II. SUBMISSIONS CONCERNING ARTICLE 1 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL No. 1
107. The applicant company maintained that the manner in which
Ireland had implemented the sanctions regime to impound its aircraft was a
reviewable exercise of discretion within the meaning of Article 1 of the
Convention and a violation of Article 1 of Protocol No. 1. The Government
disagreed, as did the third parties with the exception (in part) of the Institut
de formation en droits de l'homme du barreau de Paris. The Court
considers it clearer to set out the submissions made to it in the order
followed below.
A. The Government
1. Article 1 of the Convention
108. The Convention must be interpreted in such a manner as to allow
States Parties to comply with international obligations so as not to thwart
the current trend towards extending and strengthening international
cooperation (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 72,
ECHR 1999-I, and Beer and Regan v. Germany [GC], no. 28934/95, § 62,
18 February 1999). It is not therefore contrary to the Convention to join
international organisations and undertake other obligations where such
organisations offer human rights protection equivalent to the Convention.
This principle was first outlined in M. & Co. v. the Federal Republic of
Germany (no. 13258/87, Commission decision of 9 February 1990,
Decisions and Reports (DR) 64, p. 138) and was then endorsed in Heinz v.
the Contracting Parties also parties to the European Patent Convention
(no. 21090/92, Commission decision of 10 January 1994, DR 76-A, p. 125).
109. The critical point of distinction for the Government was whether
the impugned State act amounted to an obligation or the exercise of a
discretion. If, on the one hand, the State had been obliged as a result of its
membership of an international organisation to act in a particular manner,
the only matter requiring assessment was the equivalence of the human
rights protection in the relevant organisation (the “M. & Co. doctrine”
described above). If, on the other hand, the State could as a matter of law
exercise independent discretion, this Court was competent. Contrary to the
applicant company's submission, Matthews v. the United Kingdom ([GC],
no. 24833/94, ECHR 1999-I), Cantoni v. France (judgment of
15 November 1996, Reports of Judgments and Decisions 1996-V) and
Hornsby v. Greece (judgment of 19 March 1997, Reports 1997-II), had no
application to the present case, as they were concerned with discretionary
decisions available to, and taken by, States.
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