CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 septembre 2001

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   V. Butkevych ,   Mrs   N. Vajić ,   Mr   J. Hedigan ,   Mr   M. Pellonpää ,   Mrs   S. Botoucharova , judges ,   and Mr V. Berger , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 25 March 1997 and registered on 17   December 1998, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the parties’ oral submissions at the hearing on 13   September 2001, Having deliberated, decides as follows:         THE FACTS The applicant, Bosphorus Hava Yollari Turizm ve Ticaret AS, is an airline charter company which was incorporated in Turkey in March 1992. Its directors and shareholders are Turkish. It was represented before the Court by Mr J. Doyle, a solicitor practising in Dublin, instructed by Mr   Mustafa Illhameddin Özbay, the applicant’s managing director and owner of 96% of its share capital. At an oral hearing on 13 September 2001 the applicant was further represented by Mr J. O’Reilly, Senior Counsel, and Mr T. Eicke, Counsel. The respondent Government were represented by Mr J. Kingston, Agent, Dr   G. Hogan, Senior Counsel, Mr R. O’Hanlon, Counsel, and by Messrs E.   Alkin and R. McKay, Advisers. The Turkish Government declined to exercise its right to intervene under Article 36 of the Convention. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The lease between JAT and the applicant Following a letter of intent dated 25 December 1991, the applicant leased, by agreement dated 17 April 1992, two Boeing 737-300 aircraft from Yugoslav Airlines (“JAT”), the national airline of the former Yugoslavia. The agreement was a “dry lease without crew”. Accordingly, all of the crew would be the applicant’s employees and the applicant only would decide the destination of the aircraft. The lease was for a period of 48 months from the dates of delivery of the two aircraft (22 April and 6 May 1992). Ownership of the aircraft remained with JAT (Clause 10 of the lease) but the applicant had complete control of the day-to-day management of the aircraft and the option of purchasing the aircraft (if JAT chose to sell) within six months of the expiry of the lease (clause 20), a provision which facilitated the registration of the aircraft in Turkey. The applicant paid a lump sum of US$ 1,000,000 per aircraft on delivery and the monthly rental was US$ 150,000 per aircraft. Both parties were jointly responsible for the maintenance of the aircraft (clause 11) and JAT was responsible for compulsory, third party, war, passenger and cargo insurance (clause 12). On 14 and 29 May 1992 the two aircraft were registered on the Turkish Civil Aviation Register (as being owned by JAT but operated by the applicant) and the applicant obtained its airline licence. The parties dispute whether Turkish law required a company to have two aircraft in operation to retain that licence. 2.     Prior to the aircraft’s arrival in Ireland Further to measures already taken by the United Nations (“UN”) against the Federal Republic of Yugoslavia (Serbia and Montenegro) – “FRY” –, on 30 May 1992 the UN Security Council adopted a Resolution (“UNSC Resolution”) imposing sanctions on the FRY (UNSC Resolution 757 (1992)). That resolution was implemented by the European Community (“EC”) by Council Regulation (“EC Regulation”) on 1 June 1992 (EC Regulation 1432/92). On 25 June 1992 the Irish Minister for Transport, Energy and Communications (“the Minister”) therefore adopted the European Communities (Prohibition of Trade with the Federal Republics of Serbia and Montenegro) Regulations 1992 (SI No. 157 of 1992). On 16 November 1992 UNSC Resolution   787 (1992) was adopted. It provided for a further tightening of the economic embargo against the FRY, which resolution was implemented by EC Regulation 3534/92 of 7   December 1992. In January 1993 the applicant began discussions with TEAM Aer Lingus (“TEAM”), an Irish aircraft maintenance company (wholly owned by the State) with a view to having maintenance work (“C-Check”) done on one of its leased aircraft. Memoranda dated 8 and 18 January 1993 show that TEAM had obtained answers from the applicant to certain questions which led TEAM to conclude that the applicant was not in breach of the sanctions’ regime. TEAM noted that the applicant was doing business with many reputable companies including Boeing, SABENA and SNECMA (a French aero-engine company). In its letter dated 2 March 1993 to the Department of Transport, Energy and Communications (“the Department”), TEAM referred to previous discussions it had had with the Department, the business opportunity offered by the applicant and to the above-described TEAM memoranda of January 1993. It did not consider that the applicant posed a problem under the sanctions’ regime but it requested the Department’s view. On 3 March 1993 the Department forwarded this request to the Department of Foreign Affairs. On 17 April 1993 UNSC Resolution 820 (1993) was adopted. It provided that all States should impound, inter alia , all aircraft in their territories “in which a majority or controlling interest is held by a person or undertaking in or operating” from the FRY. On 26 April 1993 UNSC Resolution 820 (1993) was implemented by EC Regulation 990/93. On 5 May 1993 the Department of Foreign Affairs decided to refer the TEAM matter to the UN Sanctions Committee (“Sanctions Committee”). TEAM was asked by the Department to provide certain information, which was supplied on 12 May 1993. The Government submit that TEAM also forwarded information to the Department of Foreign Affairs on 17 and 18   May 1993, but the only relevant copy letter submitted of 18 May 1993 from TEAM contains a summary of information already provided by it and a request that the Sanctions Committee matter be expedited. By letter of 6 May 1993 the Turkish Foreign Ministry indicated to the Turkish Ministry of Transport that it considered that the leased aircraft were not in breach of the sanctions’ provisions and requested flight clearance pending the Sanctions Committee decision. On 12 May 1993 the Turkish State sought the opinion of that Committee on the lease arrangements. 3.     The impounding of the aircraft On 17 May 1993 one of the applicant’s leased aircraft arrived in Dublin and a contract with TEAM was signed for the completion of a C-Check. On 18 May 1993 the Irish Permanent Mission to the UN indicated by facsimile to the Department that informal advice from the Secretary to the Sanctions Committee was to the effect that there was no problem with TEAM carrying out the work and that it would not be in contravention of the sanctions’ regime. Nevertheless, an “informal opinion” from the UN Legal Office had been requested. On 19 May 1993 the Department explained this to TEAM by telephone. On 21 May 1993 TEAM received a copy of the facsimile from the Irish Permanent Mission of 18 May 1993. On the same date TEAM wrote to the Department explaining that it had interpreted the Department’s telephone call of 19 May 1993 as confirmation that a legal opinion had been received and that TEAM could go ahead with the work. TEAM had therefore begun work and it requested written confirmation of the legal opinion it understood had been received. On 21 May 1993 the Sanctions Committee disagreed with the Turkish Government’s view that the aircraft could continue to operate, recalling UNSC Resolution 820 (1993). The Turkish Permanent Mission to the UN was informed of that opinion by letter dated 28 May 1993. Also on 21 May 1993 the Irish Permanent Mission confirmed by facsimile to the Department of Foreign Affairs that the “informal legal advice” obtained was to the effect that TEAM should seek the approval of the Sanctions Committee before signing any contract with the applicant. It was recommended that TEAM submit an application to that Committee including certain details about the applicant’s lease and its transaction with TEAM. However, the Secretary to the Sanctions Committee had indicated that, if the applicant was to pay for the maintenance, it was unlikely that the Committee would have a problem with the transaction. The Committee had undertaken to answer any application within seven days. On 24 May 1993 the Department received a copy of that facsimile from the Irish Permanent Mission and sent a copy immediately to TEAM. By letter dated 26 May 1993 the Irish Permanent Mission provided the Sanctions Committee with the details it had requested and sought its “guidance and approval”. On 28 May 1993 the C-Check was completed by TEAM and the applicant paid TEAM. The report of Dublin airport duty manager of that day noted that TEAM informed him that the Department had advised TEAM that it would be in breach of sanctions if the aircraft was allowed to leave. That report noted that the aircraft had been scheduled to depart during that shift and that the airport police had been advised. TEAM also informed the applicant company accordingly. The Government claim that the aircraft was, at that stage, held under Article 9 of EC Regulation 990/93. By letters dated 29 May 1993 to the applicant, TEAM added that the opinion of the Sanctions Committee was awaited and it agreed to provide hangerage facilities on a care and maintenance basis. The applicant was to comply with all other contractual obligations. 4.     Prior to judicial review proceedings By memorandum dated 29 May 1993 the Turkish Embassy in Dublin requested, given its State’s commitment to the sanctions’ regime, the release of the aircraft to Turkey. By letter dated 2 June 1993 the Irish Permanent Mission informed the Sanctions Committee that the maintenance work had, in fact, already been carried out, that the Government regretted its failure to abide by the procedure they had initiated and that they were taking the matter up with TEAM. The aircraft was, nevertheless, being detained pending the Committee’s decision and the Government asked the Committee’s advice as to what action to take in relation to the aircraft. On 3 June 1993 the Irish Government learned of the response of the Sanctions Committee to the Turkish Government and that the Chairman of the Committee had indicated that the Committee would likely favour impounding. The Committee would not meet until 8 June 1993. On 4 June 1993 and pursuant to EC Regulation 990/93, the Minister adopted the European Communities (Prohibition of Trade with the Federal Republic of Yugoslavia (Serbia and Montenegro) Regulations 1993 (S.I. 144 of 1993). By letter dated 8 June 1993 the Minister informed Dublin airport managers that he had authorised the impounding, until further notice, of the aircraft pursuant to S.I. 144 of 1993. Shortly thereafter the applicant’s second aircraft was grounded in Istanbul although the parties disagree on why it was grounded. By letter dated 14 June 1993 the Sanctions Committee informed the Irish Government of its findings at its meeting of 8 June 1993: “... the provision of any services to an aircraft owned by an undertaking in the [FRY], except those specifically authorised in advance by the Committee ..., would not be in conformity with the requirements of the relevant Security Council resolutions. The members of the Committee also recalled the provisions of paragraph 24 of [UNSC Resolution 820 (1993)] regarding such aircraft, under which the aircraft in question should have already been impounded by the Irish authorities. The Committee, therefore, would be extremely grateful for being apprised of any action on behalf of Your Excellency’s Government to that effect.” By letter dated 16 June 1993 to the Department, the applicant challenged the impoundment arguing that the purpose of EC Regulation 990/93 was not to deal with bare legal ownership but rather with operational control. That letter recorded that TEAM had confirmed to the applicant that the Government had cleared its completion of maintenance work. By letter dated 18 June 1993 the Irish Permanent Mission informed the Sanctions Committee that the aircraft had been detained on 28 May 1993 and formally impounded on 8 June 1993. On 24 June 1993 the Department responded to the applicant’s letter: “The Minister is advised that the intention and effect of the UN Resolution as implemented through [EC Regulation 990/93] is to impose sanctions by impounding the types of commercial asset mentioned in Article 8, including aircraft, in any case where a person or undertaking in or operating from the [FRY] has any ownership interest of the kind mentioned. As this view of the scope and effect of the original Resolution has been confirmed by the [Sanctions Committee], the Minister does not feel entitled to apply [EC Regulation 990/93] in a manner which would depart from that approach. ... the aircraft must remain impounded. ... the Minister appreciates the difficulty that [the applicant] finds itself in and would be anxious to find any solution that was available to him under [EC Regulation 990/93] which would permit the release of the aircraft.” By letter dated 5 July 1993 the Turkish Embassy in Dublin repeated its request for the release of the aircraft stating that the Turkish Government would ensure impoundment in accordance with the sanctions’ regime. The Embassy confirmed that the applicant’s second aircraft had been banned from operations in Turkey pursuant to the Sanctions Committee’s decision. By letter of 6 July 1993 the Irish Permanent Mission informed the Sanctions Committee of the Turkish Government’s request and indicated that the Irish Government would be favourably disposed to the request. On 4 August 1993 the Sanctions Committee ruled that the aircraft must remain in Ireland, since the relevant resolutions required the Irish State to withhold all services from the aircraft including services which would enable it to fly. 5.     The first judicial review proceedings: the High Court On 26 November 1993 the applicant was given leave to seek judicial review of the Minister’s decision to impound the aircraft. On 15 April 1994 the High Court struck out TEAM as a respondent in the proceedings: the applicant’s dispute with TEAM was considered to be a private law matter. On 15 June 1994 the applicant’s managing director gave the following evidence to the High Court: the applicant was incorporated because of the growth in tourism and the recent changes in Turkish law allowing private airline companies. When the applicant company was incorporated in April 1992, it had the two leased JAT aircraft only. Once sanctions were put in place, the applicant, following the Turkish authorities’ advice, set the monthly rental payments due against the deposits already paid to JAT and thereafter arranged for the transfer of the rental payments to a blocked bank account supervised by the Turkish Central Bank. Other than the initial deposits, no payments had been made directly or indirectly to JAT and, since delivery of the aircraft, the applicant company had had no contact with JAT. Prior to the aircraft being impounded in Ireland, certain countries including Switzerland, Germany, the Netherlands, France, Italy, Austria and Spain had issued landing permits to the applicant and since April 1992 the aircraft had entered and left Austria, Germany and Switzerland. He first stated that the second aircraft had not been impounded in Turkey due to sanctions. He then confirmed that he did not wish to allow the second aircraft to fly in case it would be impounded elsewhere and he went on to claim that the Turkish Government had “banned the operations” of his company because Turkish aviation rules required a minimum of two aircraft to operate. On 21 June 1994 Mr Justice Murphy delivered the judgment of the High Court. The key question was whether the Minister had been bound by Article 8 of EC Regulation 990/93 to impound the aircraft. He considered the Department’s letter of 24 June 1993 to the applicant to be the most helpful explanation of the Minister’s reasoning. He found that: “... it is common case that the transaction between JAT and [the applicant] was entirely bona fide . There is no question of JAT having any interest direct or indirect in [the applicant] or in the management, supervision or direction of the business of that company. ... It is, however, common case that [UNSC Resolutions] do not form part of Irish domestic law and, accordingly, would not of themselves justify the Minister in impounding the aircraft. The real significance of the [UNSC Resolutions], in so far as they relate to the present proceedings, is that [UNSC Resolution 820 (1993)] ... provided the genesis for Article 8 of [EC Regulation 990/93]. ... Counsel for each party is in agreement with the general principle that the regulations in question should be interpreted purposively. That is to say that the Court should take a teleological or schematic approach to these regulations ... The words “controlling” and “majority” would be found ordinarily in the context of company law and even then might give rise to considerable problems in application. To apply those terms to physical possessions creates even greater difficulty. In my view, the degree or extent of the interest referred to in the article must have been intended to identify a situation in which the person in or operating from Yugoslavia could exercise a decision-making function in relation to the use on a day-to-day basis of the asset in question. Any other construction would seem to be both unreal and unjust. To impound an asset for the possession and enjoyment of which a wholly innocent party has paid a substantial sum of money simply because another party has a theoretical right to receive a nominal rent in respect thereof must be absurd. Surely the purpose of the Regulation is to deprive the guilty party of recourse to the aircraft, ... and which could itself be used to transport goods in breach of the embargo imposed by the regulations. In my opinion, the “interest” referred to in Article 8 is essentially the interest in possession or the right to enjoy control or regulate the use of the asset rather than income derived from it. If the concern of the regulation was to deprive Yugoslav nationals or undertakings of income, that could be done by other means as the present case has already demonstrated. As long as the position is that no citizen of [the FRY] has any use or control over the aircraft in question or the opportunity to receive any income derived from it, then it would seem to me that the regulations have achieved their purpose fully and the impounding of the aircraft would constitute a wholly unwarranted intervention in the business of [the applicant]. In my view, the majority and controlling interest in the aircraft in question is and was held by [the applicant] and by no other person. In the circumstances the Minister, whether or not a responsible authority at the relevant date, was not empowered to impound the aircraft.” The High Court quashed the Minister’s decision to impound the aircraft, although the aircraft was at that stage the subject of an injunction obtained by SNECMA which restrained it from leaving the country (see 10 below). 6.     The second judicial review proceedings: the High and Supreme Courts On 30 June 1994 the Department wrote to the applicant to inform it that the Minister was considering the position of the aircraft under other provisions of EC Regulation 990/93 and under EC Regulation 1432/92: “In particular, having regard to the information that has become available to the Minister concerning servicing of the aircraft in May of last year and the interest that has been claimed in respect of the aircraft and its insurance and maintenance received by him directly from [JAT], the Minister is obliged to consider whether the aircraft must be detailed by him as the competent authority for the purposes of the Regulations as an aircraft which has violated Article 1(e) [of EC Regulation 990/93].” The letter went on to refer specifically to the joint responsibility between JAT and the applicant for maintenance and to the interest claimed by JAT in the aircraft so that the Minister felt that the provision of maintenance by TEAM may have constituted the provision of a non-financial service to an FRY entity in breach of those regulations. The applicant was requested to make representations as to why the aircraft should not be detained for those reasons. There is documentary evidence of a response dated 22 July 1994. By letter dated 5 August 1994, the Minister detained the aircraft under Article 9 of EC Regulation 990/93 on suspicion that the provision of the C-Check maintenance and insurance might amount to non-financial services within the meaning of Article 1.1(e) of EC Regulation 990/93 and EC Regulation 1432/92. The concern related to the applicant’s access to the blocked bank account in Turkey and the manner in which the applicant used those funds (setting off the rental monies paid into it) to discharge JAT’s maintenance and insurance obligations under the lease.   On 23 September 1994 UNSC Resolution 943 (1994) was adopted. It relaxed the sanctions against the FRY for 100 days as peace negotiations had begun. The suspension did not affect aircraft already impounded on 23   September 1994. It was implemented by EC Regulation 2472/94 on 10   October 1994. In March 1995 the applicant was given leave to take judicial review proceedings against the Minister’s decision of 5 August 1994 to impound the aircraft under Article 9 of EC Regulation 990/93. On 22 January 1996 Mr Justice Barr of the High Court gave judgment. In concluding that that Minister’s action was invalid, he found: “A consequence, of fundamental importance to [the applicant], of the Minister’s action in impounding the aircraft in May 1993 was that the Turkish authorities impounded the other similar aircraft included in the lease at Istanbul airport on the ground that under Turkish law an airline must have a minimum of two aircraft in operation to carry on its business. The second aircraft remains in detention in Turkey and is incurring a large total liability for continuing parking fees at the airport. [The applicant] has no other aircraft and has been put out of business as an air carrier. ... It has been specifically stated to the court by counsel on behalf of the Minister that he accepts that [the applicant] is an innocent party which is not in collusion with JAT. It is accepted that the tour operations business of [the applicant] has no connection with former Yugoslavia or with [JAT]”. It was also noted by the High Court that almost all of the monies which had been paid into the frozen account by the applicant had by then been used up by the applicant (with the consent of the holding bank in Turkey) in order to pay for insurance on the aircraft, the C-Check maintenance and the other liabilities arising out of the detention of applicant’s aircraft. The High Court judge felt that it was not his role to decide whether there were good grounds for the Minister’s reasonable suspicion that there had been a breach of Article 1.1(e) of EC Regulation 990/93. He merely observed in that respect that, having regard to the previous High Court judgment in the matter, the Minister’s prospects of justifying such suspicions were bleak. The High Court noted that the crucial question before it was the Minister’s delay in deciding to invoke Article 9 of EC Regulation 990/93 given the daily losses being incurred by the applicant and the applicant’s recognised status as an innocent party in the matter. It was noted that it was clear that the Minister had decided to invoke Article 9 only if he failed to retain the aircraft under Article 8 of the same Regulation and the court found this patently unfair to the applicant because of the inevitable further delay caused and the applicant’s consequent involvement in additional, unavoidable, substantial and expensive litigation. The Minister should have reviewed the application of all relevant parts of EC Regulation 990/93 at the same time and within a reasonable time from the date of the original impoundment in May 1993. It concluded that the Minister had failed in his duty to the applicant to investigate and decide such matters within a reasonable period of time, to conduct the investigations in accordance with fair procedures and to have proper regard to the rights of the applicant, “an innocent party” because the Minister had been faced with a possible breach of Article 1.1(e) of Regulation 990/93 as early as May 1993 and because he did not raise any queries with the applicant regarding either the C-Check contract or the provision of aviation insurance in the 13 months prior to the judgment of the High Court of June 1994. The High Court found in the applicant’s favour and quashed the Minister’s decision to detain the aircraft. The aircraft was then free to leave the State. However, on 7 February 1996 the Irish Government appealed to the Supreme Court and applied for a stay on the High Court’s order. On 9 February 1996 the Supreme Court refused the Minister’s stay application. The overriding consideration in deciding to grant the stay or not was to find a balance which did not deny justice to either party. The court noted that the decision as to whether the services in question (maintenance and insurance) constituted non-financial services within the meaning of Article 1.1(e) of EC Regulation 990/93 had to be taken by the Minister and should have been capable of resolution within a matter of hours, days and, certainly, within a week. Instead, the matter had dragged on, the Minister had never taken a decision, Article 9 of EC Regulation 990/93 requiring a suspicion of the relevant breach only and it was noted that the relevant Regulations had already been suspended. The respective positions of the parties were also relevant to the stay request. Given the contrast between the Government’s potentially small losses (monies owed for the maintenance and parking in Dublin airport) and the applicant’s calamitous losses, the justice of the case was overwhelmingly in the latter’s favour. The aircraft was therefore still free to leave Ireland. By letters dated 12   and 14 March 1996 the Department confirmed to the applicant, JAT and to TEAM that, in light of those High and Supreme Court judgments, the Minister considered that he no longer had any legal responsibility for the aircraft and had therefore terminated the maintenance and insurance contracts which had been retained by him thereon. In May 1996 the appeal on the merits in the second judicial review proceedings was allowed, the Supreme Court finding that the point had become a moot one as the applicant’s lease had by then expired. 7.     The first judicial review proceedings : the ECJ On 8 August 1994 the Government appealed the judgment of Mr Justice Murphy to the Supreme Court and requested an order referring the interpretation of Article 8 of EC Regulation 990/93 to the European Court of Justice (“ECJ”) pursuant to former Article 177 of the Treaty Establishing the European Community 1958 (“EC Treaty”). By order dated 12 February 1995 the Supreme Court referred the following question to the ECJ and adjourned the proceedings before it: “Is Article 8 of [EC Regulation 990/93] to be construed as applying to an aircraft which is owned by an undertaking the majority or controlling interest in which is held by [the FRY] where such aircraft has been leased by the owner for a term of four years from the 22 April 1992 to an undertaking the majority or controlling interest in which is not held by a person or undertaking in or operating from the said [FRY]?”     The agreed summary of the facts included in that order noted that: “The Minister accepted in the High Court that there is no implication [the applicant] was involved in some scheme or sham to use a foreign flag and no suggestion has ever been made that [the applicant] is in any way seeking to break the UN sanctions.” It was also recorded that there was no question of JAT having any interest in the applicant or in the day-to-day management of the applicant. On 30 April 1996 Advocate General Jacobs (“AG”) delivered his opinion. Given the majority interest of JAT in the aircraft, it appeared that EC Regulation 990/93 applied to the aircraft. The question for the AG was whether there were compelling reasons to interpret the regulation in a way which departed from its wording. That regulation would have to be interpreted in light of the aims and text of the relevant UNSC Resolutions it implemented. While the precise aim of those resolutions might have been difficult to pinpoint, the AG was not convinced by the “narrow” interpretation of those resolutions of the High Court: he considered that the purpose of the resolutions might have gone beyond taking away an asset that might be used to breach the FRY trade embargo, and might have pursued the objectives of freezing FRY assets abroad or of ensuring that FRY persons or entities do not recover means of transport currently abroad (a consideration of particular application in the aircraft context). Neither did the text of the resolutions support the view of the High Court judge: there was no reason to suppose that “majority interest” referred to the interest of the entity which registered the aircraft as opposed to that of the entity which owned it. Since neither the aims nor the text of the Resolutions suggested that the Minister was mistaken, it was not necessary to consider the views of the Sanctions Committee, the views of which were not, in any event, binding. He found therefore no good reason to depart from the clear wording of Article 8 of EC Regulation 990/93. As to the question of the respect shown in EC Regulation 990/93 for fundamental rights and proportionality, the AG pointed out that: “It is well established that respect for fundamental rights forms part of the general principles of Community law, and that in ensuring respect for such rights, the [ECJ] takes account of the constitutional traditions of the Member States and of international agreements, notably [the Convention], which has a special significance in that respect. Article F(2) of the Treaty on European Union ... gives Treaty expression to the [ECJ’s] case-law. ... In relation to the EC Treaty, it confirms and consolidates the [ECJ’s] case-law underlining the paramount importance of respect for fundamental rights. Respect for fundamental rights is thus a condition of the lawfulness of Community acts – in this case, the Regulation. Fundamental rights must also, of course, be respected by Member States when they implement Community measures. All Member States are in any event parties to the [Convention], even though it does not have the status of domestic law in all of them. Although the Community itself is not a party to the Convention, and cannot become a party without amendment both of the Convention and of the Treaty, and although the Convention may not be formally binding upon the Community, nevertheless for practical purposes the Convention can be regarded as part of Community law and can be invoked as such both in the [ECJ] and in national courts where Community law is in issue. That is so particularly where, as in this case, it is the implementation of Community law by Member States which is in issue. Community law cannot release Member States from their obligations under the Convention.” The AG noted that the right to peaceful enjoyment of property protected by the Convention and the right to pursue a commercial activity recognised as a fundamental right by the ECJ, had been invoked by the applicant company. Having considered the Sporrong and Lönnroth v. Sweden case of this Court (judgment of 23 September 1982, Series A no. 52), he defined the essential question as being whether the interference with the applicant’s possession of the aircraft was a proportionate measure in the light of the aims of general interest which EC Regulation 990/93 sought to achieve. He had regard to the application of this test in the AGOSI v. the United Kingdom case also of this Court (judgment of 24 October 1986, Series A no. 108) and in the Air Canada v. the United Kingdom case (judgment of 5   May 1995, Series A no. 316-A) and to a “similar approach” adopted by the ECJ in cases concerning the right to property or to pursue a commercial interest (Hauer v. Land Rhienland-Pfalz Case 44/79 [1979] ECR 3727, §§   17-30 and Germany v.   Council, Case C-280/93 [1994] ECR I-4973, §   78). He considered that there had been a severe interference with the applicant’s interest in the lease but that, on the other hand, it was difficult to identify a stronger type of public interest than that of stopping a devastating civil war. While some property loss was inevitable for any sanctions required to be effective, if it had been demonstrated that the interference in question was wholly unreasonable in light of the aims sought to be achieved, then the ECJ would intervene. However, he felt that neither the initial decision to impound nor the continued retention of the aircraft could be regarded as unreasonable. Whether or not the financial impact of the sanctions were as outlined by the applicant, a general measure of the kind in question could not be set aside simply because of the financial consequences which the measure may have in a particular case. Given the strength of the public interest involved, the proportionality principle would not be infringed by any such losses. He concluded that the contested decision did not: “... strike an unfair balance between the demands of the general interest and the requirements of the protection of the individual’s fundamental rights. That conclusion seems consistent with the case-law of [this Court] in general. Nor has [the applicant] suggested that there is any case-law under [the Convention] supporting its own conclusion. The position seems to be no different if one refers to the fundamental rights as they result from “the constitutional traditions common to the Member States” referred to in the case-law of [the ECJ] and in Article F(2) of the Treaty on European Union. In the [above-cited Hauer case, the ECJ] pointed out ... , referring specifically to the German Grundgesetz, the Irish constitution and the Italian constitution, that the constitutional rules and practices of the Member States permit the legislature to control the use of private property in accordance with the general interest. Again it has not been suggested that there is any case-law supporting the view that the contested decision infringed fundamental rights. The decision of the Irish High Court was based, as we have seen, on different grounds.” On 22 May 1996 the applicant’s lease of the aircraft expired. By letter dated 19 July 1996 to JAT, TEAM pointed out that the aircraft was free to leave provided that debts owed to TEAM were discharged. On 30 July 1996 the ECJ made its ruling, finding that EC Regulation 990/93 applied to the applicant’s situation. The Court noted that the file in the domestic proceedings showed that the transaction between the applicant and JAT had been entered into “in complete good faith” and was not intended to circumvent the sanctions against the FRY. It further observed that, in application of those sanctions, the applicant had paid the rental monies into a blocked bank account. However, the Court could not accept the applicant’s first argument that the EC Regulation 990/93 did not apply because of the control on a daily basis of the aircraft by a non-FRY innocent party. Having considered the wording of EC Regulation 990/93, its context and aims (including the text and aims of the Security Council Resolutions it implemented), it found nothing to support the distinction made by the applicant. Indeed the use of day-to-day control as opposed to ownership as a criterion for applying the regulation would effectively jeopardise the effectiveness of the sanctions. Secondly, the applicant argued that that application of EC Regulation 990/93 would infringe its right to peaceful enjoyment of his possessions and its freedom to pursue a commercial activity because it would destroy and obliterate the business of a wholly innocent party when the FRY owners had already been punished by blocked bank accounts. The ECJ found that: “It is settled case-law that the fundamental rights invoked by [the applicant] are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community [see the above-cited Hauer case, Case 5/88 Wachauf v Bundesamt fuer Ernaehrung und Forstwirtschaft [1989] ECR 2609 and the above-cited Germany v Council case.) Any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions. Moreover, the importance of the aims pursued by the regulation at issue is such as to justify negative consequences, even of a substantial nature, for some operators. The provisions of [EC Regulation 990/93] contribute in particular to the implementation at Community level of the sanctions against the [FRY] adopted, and later strengthened, by several resolutions of the [UN] Security Council. The third recital in the preamble to [EC Regulation   990/93] states that "the prolonged direct and indirect activities of the [FRY] in, and with regard to, the Republic of Bosnia-Herzegovina are the main cause for the dramatic developments in the Republic of Bosnia-Herzegovina"; the fourth recital states that "a continuation of these activities will lead to further unacceptable loss of human life and material damage and to a further breach of international peace and security in the region"; and the seventh recital states that "the Bosnian Serb party has hitherto not accepted, in full, the peace plan of the International Conference on the Former Yugoslavia in spite of appeals thereto by the Security Council". It is in the light of those circumstances that the aim pursued by the sanctions assumes a special importance, which is, in particular, in terms of [EC Regulation 990/93] and more especially the eighth recital in the preamble thereto, to dissuade the [FRY] from "further violating the integrity and security of the Republic of Bosnia-Herzegovina and to induce the Bosnian Serb party to co-operate in the restoration of peace in this Republic". As compared with an objective of general interest so fundamental for the international community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the [FRY], cannot be regarded as inappropriate or disproportionate. Article 8 of [EC Regulation 990/93] applies to an aircraft which is owned by an undertaking based in or operating from the [FRY], even though the owner has leased it for four years to another undertaking, neither based in nor operating from [the FRY] and in which no person or undertaking based in or operating from [the FRY] has a majority or controlling interest.” The applicant had referred to EC Regulation 2427/94 of 10 October 1994 in its observations to the ECJ and to the ironic consequence that JAT aircraft could by then operate and its own aircraft could not. The ECJ did not refer to that regulation or submission. On 6 August 1996 the Minister re-instated the impounding of the aircraft under Article 8 of EC Regulation 990/93. 8.     The first judicial review proceedings : the Supreme Court On 29 November 1996 the Supreme Court delivered its judgment allowing the appeal of the Minister from the order of the High Court of 21   June 1994. It noted that the sole issue in the case was whether the Minister had been bound by Article 8 of EC Regulation 990/93 to impound the aircraft. Having noted the response of the ECJ that the Regulation applied to the aircraft, the Supreme Court confined itself to saying that it was bound by that decision and the appeal by the Minister was allowed.     9.     The return to JAT of the aircraft By letters dated 19 July 1996 Turkish Ministry of Transport notified its FRY counterpart that the de-registration of the two leased aircraft had stopped, and that they remained on the Turkish aviation register, pursuant to the order of the Ankara courts, pending resolution of the proceedings which had been initiated in Turkey by the applicant. Correspondence submitted by the applicant demonstrates that the continued place on that aviation register was notified to the FRY Ministry of Transport and to JAT (in July 1996) and to the Irish Aviation Authority (in November 1996). The latter were also informed that the applicant was taking steps to bring the aircraft back to Turkey. On 30 July 1997 the Irish Aviation Authority and TEAM were reminded of the aircraft’s continued registration in Turkey. On 30 July 1997 the aircraft, following an agreement between JAT and the Government, was returned to JAT. The State waived some outstanding maintenance and parking costs. By letter dated 31 July 1997 the Irish Aviation Authority notified their Turkish counterparts of the removal and of the new FRY registration number of the aircraft. By letter of the same date, the latter protested the giving of flight clearance to the aircraft re-registered under the FRY aviation register while it had not been de-registered in Turkey. The Irish Aviation Authority responded on 15 August 1997 stating that the Department had decided that the aircraft be released. 10.     Relevant related proceedings and decisions (a)     On 11 January 1993 the Office of Foreign Assets Control of the Treasury Department of the United States had granted a licence, expressly under the UN sanctions’ regime, for the applicant to receive, inter alia , spare and replacement parts, technical support and maintenance services directly from the manufacturer of the leased aircraft (Boeing) and from other companies in the United States. That licence was subsequently revoked (14 June 1993) once Ireland impounded one of the leased aircraft. (b)     Shortly after the aircraft was impounded in Ireland, SNECMA brought proceedings against JAT and the applicant regarding alleged debts concerning aero-engines supplied for the aircraft. On 12 March 1994 SNECMA obtained an injunction in the High Court prohibiting the applicant from removing the aircraft from the Irish jurisdiction. The trial took place between 17 January and 30 March 1995. On 11 April 1995 SNECMA’s injunction was lifted and SNECMA later discontinued their proceedings against the applicant in Ireland and in France. (c)     Once the aircraft had been impounded, the British Aviation Insurance Group, which insured the applicant’s aircraft, raised queries with the Sanctions’ Unit of the British Department of Trade and Industry regarding its insuring the applicant’s aircraft. By letter dated 2 July 1993 that Sanctions’ Unit confirmed that the UN embargo did not require a licence for a contract of insurance to cover the aircraft operated by the applicant because the aircraft was registered in Turkey, was chartered by a Turkish company and because the purpose was to insure the applicant and not, wholly or partly, JAT. (d)     A legal opinion dated 21 October 1996 and prepared by Turkish lawyers for the applicant recorded that the second aircraft had been detained in Istanbul by the Turkish Government given the “situation in Ireland”. It stated that the arbitration clause in the lease (in favour of the former Yugoslavia) was null and void and that, in compensation for the intervening circumstances, the applicant should get an extension of the lease. In 1999 the applicant took proceedings against JAT in Turkey for specific performance of the alleged non-performed portion of the lease and for compensation. A hearing date was fixed for March 2001 and it appears that those proceedings are pending. (e)     Pursuant to the arbitration clause in the lease agreement, the Belgrade Chamber of Commerce conducted an arbitration at which both parties were represented. In 1998 an order was made in favour of JAT which was not discharged by the applicant. JAT then applied to the courts in Ankara for execution of the arbitration order and in March 2000 the applicant filed its objections and defence. It appears that these proceedings are also pending. (f)       By letter dated 26 February 2001 the Turkish Ministry of Transport confirmed to the applicant that its second aircraft had not been impounded pursuant to UNSC Resolution 820 (1993) but had been “withheld from flight”. B.     Relevant domestic and international law and practice 1.     Relevant provisions of international instruments Article 1(3) of the Charter of the United Nations (“UN”) provides that one of the purposes of the organisation is: “... to achieve international co-operation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, s