CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 décembre 2007

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text-indent:0pt; display:inline-block } .sA0F8D92C { width:161.76pt; text-indent:0pt; display:inline-block } .s3A253A10 { width:190.77pt; text-indent:0pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     THIRD SECTION     CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY     (Application no. 40998/98)       JUDGMENT     STRASBOURG     13 December 2007       FINAL     13/03/2008     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:   Boštjan M. Zupančič, President ,   Corneliu Bîrsan,   Rıza Türmen,   Alvina Gyulumyan,   Egbert Myjer,   Ineta Ziemele,   Isabelle Berro-Lefèvre, judges , and Stanley Naismith, Deputy Section Registrar , Having deliberated in private on 22 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     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 company”), on 18 December 1997. Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with Article 5 § 2 thereof, the case was examined by the Court. 2.     The applicant company was represented by Mr T. Marshall, Mr   D.   Lloyd Jones and Ms J. Stradford, lawyers practising in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.     The applicant company alleged that the seizure by the Turkish authorities of the cargo aboard a Cypriot-owned vessel of which it was time charterer had constituted an unjustified control of the use of property within the meaning of Article 1 of Protocol No. 1. 4.     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 the use of property and the alleged denial of the 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 5.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Background to the case 6.     By a charter of 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 voyage to the south Iranian ports. The duration of the voyage was stated to be fifty days and the purpose to carry general cargo, steels and commercial containers. 7.     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. “IMCO 1” denotes cargo which falls within the “Class 1 – Explosives” category of the International Maritime Dangerous Goods Code. 8.     The applicant company ordered the vessel to proceed to the port of Burgas in Bulgaria and, on 8 October 1991, further cargo commenced loading. This consisted of general cargo but also arms, ammunition and military spare parts which fell within the “IMCO Class 1” category (“the arms cargo”). 9.     The applicant company’s agent in Burgas 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 Tartus in the Syrian Arab Republic. The shipper was stated to be “Socotrade” and the consignee as “to order”. 10.     The applicant company’s agent in Burgas 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 Tartus. The applicant company at all times intended that the arms cargo should be discharged at the port of Bandar Abbas in Iran. The vessel sailed from Burgas at 7 p.m. on 21 October 1991 and was ordered to proceed to Setúbal in Portugal in order to load further cargo. In order to reach Setúbal from Burgas, the vessel had to transit through the Bosphorus. B.     The seizure of the vessel 11.     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. 12.     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. 13.     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 engines. 14.     The Turkish coastguard 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. 15.     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. 16.     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. C.     The proceedings before the Istanbul State Security Court 17.     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, namely the master, the first officer and the radio operator. The judge referred in his decision to “systematic weapon smuggling” and stated that the “evidence confirmed that the above-mentioned smuggled weapons could be used against the security of the Republic of Turkey”. 18.     On 30 October 1991 that 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 decision, setting out the relevant provisions of the Montreux Convention and noting that Turkey was not in a state of war with any country within the meaning of the provisions of its Constitution and that there was neither a threat nor a risk of war. 19.     On 4 November 1991 the Istanbul State Security Court dismissed that objection. 20.     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 ammunition. 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 ceasefire achieved through the efforts of the United Nations 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 has become 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 do 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 that ship and the weapons contained therein.” 21.     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. 22.     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 Minister for Foreign Affairs 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 in fact being carried on behalf of the Iranian State. 23.     On 12 November 1991 the Turkish Minister for Foreign Affairs 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. 24.     On 13 November 1991 the lawyer acting on behalf of the owners and the master of the vessel pointed out to the Istanbul State Security Court that the assumption that 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 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. 25.     On 18 November 1991 the lawyer filed another application with the court reiterating that Turkey was not at war with any country (Cyprus included) and seeking the release of the master on bail. 26.     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”. 27.     In another communication, dated 29 November 1991, the applicant company’s lawyer sent 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 charterers had control over the cargo and its documentation. 28.     The Turkish Ministry of Foreign Affairs responded to the questions posed by the Istanbul State Security Court in two letters of 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, the 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 Burgas. 3.     Except for the limitations set out in Articles 4 and 5 of the Montreux Convention in ‘time 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 ‘time 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 ...” 29.     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 on suspicion of their being intended for use for the commission or preparation of a crime. 30.     On 10 January 1992 the public prosecutor filed his 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. 31.     By January 1992 the applicant company had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed. The applicant company applied through its Turkish lawyer, Mr Aydın, to intervene in the proceedings before the Istanbul State Security Court. In its application, the applicant company 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. It therefore asked for the unconditional release of the vessel and its cargo. The court ordered that the applicant company be joined as an intervening party in the proceedings. 32.     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 ...” 33.     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 and sentenced him to five years’ imprisonment and a fine of 50,000 Turkish liras (TRL). The court ordered that the arms cargo and the vessel be confiscated pursuant to the final paragraph of section 12 of Law no. 6136, that all the cargo other than the arms be returned to the applicant company 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 [1] , the Istanbul State Security Court held that in the present case there was bad faith on the part of the applicant company 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, the 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 until now no agreement has been reached, and that inter-State negotiations are in progress. Therefore, the letter of the Ministry of Foreign Affairs ... and the letter of the Prime Minister ... were disregarded.” 34.     The judgment went on to refer to the Vassoula case [2] , concerning another vessel, and concluded that “the existence of a state of war has been confirmed”. 35.     Following the judgment of the Istanbul State Security Court, the applicant company paid the hire charge and expenses due to the owner and the charter party in the sum of 1,161,374.50 United States dollars (USD). Although the judgment of the Istanbul State Security Court had ordered the return of the non-arms cargo to the applicant company, it was not returned and, by an order of 29 May 1992, the Istanbul Court of Commerce granted an injunction to the owner of the vessel which imposed a lien of TRL   4,111,168,608 over the cargo to secure the unpaid hire. The owner of the vessel, Seabeach Shipping Ltd, then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant company. D.     The appeal 36.     On 13 March 1992 the applicant company appealed against the judgment of the Istanbul State Security Court. The applicant company 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 court’s reliance on the earlier Vassoula case, and pointed out that the arms cargo had only been in transit through the Straits. 37.     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 Ministry of Foreign Affairs and the Prime Minister which explicitly state that ‘Turkey is not at 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. ...” 38.     The case was remitted to the State Security Court for retrial. 39.     In an application of 3 September 1992, pending the retrial of the master of the vessel before the Istanbul State Security Court, the applicant company sought removal of the lien which had been imposed by the Istanbul Court of Commerce over the cargo. 40.     On 8 September 1992 the Istanbul Court of Commerce refused the applicant company’s request, so on 18 September 1992 the applicant company agreed to pay 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 that agreement the applicant company had to pay 80% of the hire charge in respect of the period from 14 March 1992 to 13   September 1992 inclusive (USD 1,118,074.40). The applicant company also agreed to pay 100% of future charges, as and when the payments fell due. The owner provided the applicant company with a guarantee to repay the sum of USD 1,118,074.40. The applicant company considered that it was obliged to pay the hire charges due, otherwise the Istanbul Court of Commerce and the owner would not have released the vessel and its cargo. 41.     On 30 September 1992 the Istanbul State Security Court acquitted the master on retrial. An appeal by the public prosecutor against that judgment was dismissed by the Court of Cassation in a decision of 12   November 1992, which was approved on 13 November 1992. 42.     On 18 November 1992 the Istanbul State Security Court ordered the release of the vessel and the arms cargo. The vessel left Turkey on 8   December 1992 and was returned to the owner by the applicant company under the terms of the charter party on 9 March 1993. E.     The compensation proceedings 43.     In a written application of 22 July 1993, the applicant company brought an action before the Istanbul Court of Commerce claiming TRL   38,087,249,964 (equivalent to USD 3,386,598.98) plus interest against the Ministry of Finance and Customs, with reference to the Ministry of the Interior and the Ministry of Defence. The applicant company based its claim on Article 41 of the Code of Obligations and submitted that the seizure and detention of the vessel and its cargo had been unjustified. It argued in this connection that the arms and ammunition had belonged to the Islamic Republic of Iran, that the vessel had been wrongfully impounded for 413   days, 2 hours and 30 minutes and, as a result, it had had to pay USD   3,263,522.92 to the owner, USD 81,978.86 in fuel charges and USD   41,097.20 in harbour fees. 44.     The application went on to distinguish this case from the Vassoula case, and to explain the circumstances in which the applicant company had been forced to pay the hire charges and other expenses to the owner of the vessel. 45.     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 company’s claim should be declared inadmissible, principally on the basis that the applicant company had chosen voluntarily and without legal compulsion to pay the hire charges under the charter party. 46.     The applicant company objected to the first report and the Court of Commerce ordered the preparation of a second expert report on 11   November 1994. 47.     On 3 April 1995 the second expert report was submitted to the court with the conclusion that the applicant company’s claim should be dismissed. This second panel of experts considered that the owner of the vessel, but not the applicant company, might in appropriate circumstances claim compensation from the Turkish State. They expressed the opinion that the applicant company’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. 48.     On 13 June 1995 the applicant company filed an objection against the second report and requested the court to rule on the case without obtaining a further report, or alternatively to order a third expert report. 49.     By a decision of 20 September 1995, the Istanbul Court of Commerce dismissed the applicant company’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 merely carried out their statutory duty to investigate 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. 50.     On 6 November 1995 the applicant company appealed. 51.     On 27 December 1996 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul Court of Commerce. A request by the applicant company for rectification of that decision was rejected by a new decision of the Court of Cassation of 22 May 1997, served on the applicant company on 22 June 1997. F.     The London arbitration 52.     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 company and the owner of the vessel concerning the hire charges and other expenses paid by the applicant company. 53.     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 company 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 USD 1,300,403.83 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. G.     The proceedings instituted by the owner of the vessel and the cargo receiver 54.     Meanwhile, the owner of the vessel, Seabeach Shipping Ltd, brought an action in the Beyoğlu Commercial Court in Istanbul seeking a 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. 55.     The cargo receiver, the Mobarakeh Steel Complex, also brought an action in the Beyoğlu Commercial Court claiming USD 2,236,208 in damages from the Ministry of Finance on behalf of the Ministry of the Interior and the Ministry of Defence. It submitted that it had lost revenue 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. 56.     In a judgment of 17 January 2000, the Beyoğlu Commercial Court dismissed that claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated on 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. It accordingly held that the defendant must be liable for the damage resulting from the wrongful confiscation of the goods. 57.     In a judgment of 15 December 2000, the Beyoğlu Commercial Court confirmed its earlier judgment and held that the plaintiff’s claim must be dismissed on the grounds that the seizure and detention of the vessel had been in compliance with domestic law and the Montreux Convention governing the Straits. Taking into account the fact that the vessel had been sailing under the Cypriot flag, and the inconsistency between the cargo and the documents, the court considered that the seizure of the vessel had been lawful. 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 that judgment. 58.     On 21 November 2000 the Court of Cassation sitting as a 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. That being so, any arms trafficking would adversely affect Turkey and would thus mean that the 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   1098 and 1114 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 acknowledgment 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 as well as the 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 such 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 LEGAL MATERIALS AND DOMESTIC LAW A.     The Montreux Convention of 20 July 1936 59.     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 to 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, the principle enshrined in Article 23 of the Treaty of Peace signed at Lausanne on the 24th July, 1923”. The relevant provisions of the convention read as follows: 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 “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. No taxes or charges other than those authorised by Annex I to the present Convention shall be levied by the Turkish authorities on these vessels when passing in transit without calling at a port in the Straits. 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 guards and they shall be disembarked at a sanitary station on departure from the Straits.” Article 4 “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 “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 “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 Articles 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 60.     The relevant provisions provide as follows: Article 35 “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 Turkish Code of Obligations 61.     This provides as relevant: Article 41 “Any person who causes damage to another in an unjust manner, be it intentionally or negligently, shall afford redress for that damage.” 62.     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 Laws nos. 2249 and 2478 of 12 June 1979 and 23 June 1981 respectively) 63.     Section 12 makes it an offence to smuggle, to attempt to smuggle or to assist in smuggling firearms or ammunition into the country. E.     Article 36 of the former Turkish Criminal Code 64.     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 the commission or preparation of a crime. F.     Article 90 § 5 of the Turkish Constitution 65.     The relevant parts of Article 90 § 5 provide: “International agreements duly put into effect bear the force of law ... In the event of a conflict between international agreements in the area of fundamental rights and freedoms 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 66.     The applicant company complained that the seizure by the Turkish authorities of the vessel and its cargo had constituted an unjustified control of the 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 67.     The Government alleged that the applicant company did not have locus standi and that it was therefore not entitle