BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
41
1. The applicable rule
141. The parties did not, however, agree on whether that interference
amounted to a deprivation of property (first paragraph of Article 1 of
Protocol No. 1) or a control of the use of property (second paragraph). The
Court reiterates that, in guaranteeing the right of property, this Article
comprises “three distinct rules”: the first rule, 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.
The three 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, cited above, p. 17, § 48).
142. The Court considers that the sanctions regime amounted to a
control of the use of property considered to benefit the former FRY and that
the impugned detention of the aircraft was a measure to enforce that regime.
While the applicant company lost the benefit of approximately three years
of a four-year lease, that loss formed a constituent element of the abovementioned control on the use of property. It is therefore the second
paragraph of Article 1 of Protocol No. 1 which is applicable in the present
case (see AGOSI, cited above, pp. 17-18, §§ 50-51, and Gasus Dosier- und
Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995,
Series A no. 306-B, pp. 47-48, § 59), the “general principles of international
law” within the particular meaning of the first paragraph of Article 1 of
Protocol No. 1 (and relied on by the applicant company) not therefore
requiring separate examination (see Gasus Dosier- und Fördertechnik
GmbH, pp. 51-53, §§ 66-74).
2. The legal basis for the impugned interference
143. The parties strongly disagreed as to whether the impoundment was
at all times based on legal obligations on the Irish State flowing from
Article 8 of Regulation (EEC) no. 990/93.
For the purposes of its examination of this question, the Court reiterates
that it is primarily for the national authorities, notably the courts, to interpret
and apply domestic law even when that law refers to international law or
agreements. Equally, the Community's judicial organs are better placed to
interpret and apply Community law. In each instance, the Court's role is
confined to ascertaining whether the effects of such adjudication are
compatible with the Convention (see, mutatis mutandis, Waite and
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