FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40998/98 
by THE ISLAMIC REPUBLIC OF IRAN SHIPPING LINES 
against Turkey

The European Court of Human Rights (First Section), sitting on 10 April 2003 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr G. Bonello, 
 Mr R. Türmen
 Mr E. Levits
 Mrs S. Botoucharova
 Mr A. Kovler, 
 Mrs E. Steiner, judges
and  Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 18 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, the Islamic Republic Of Iran Shipping Lines, is an Iranian State-owned shipping company incorporated in Teheran (Iran). It is represented before the Court by Mr Timothy Marshall, Mr David Lloyd Jones and Ms Jemina Stradford, lawyers practising in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

By a charter dated 12 September 1991 the applicant company chartered a vessel called “the Cape Maleas” (“the vessel”). The charter-party was on an amended New York Produce Exchange time charter form, and was for a time-charter trip to the South Iranian ports. The voyage duration was stated to be fifty days and the intended service to be in the carriage of general cargo, steels and commercial containers.

By agreement between the parties on 18 September 1991 the charter-party became subject to “Addendum No. 1”. This provided that the applicant charterer could load 2,500 cubic metres of “IMCO 1” cargo. The “IMCO 1” denotes cargoes which fall within “Class 1 - Explosives” category of  the International Maritime Dangerous Goods Code.

The applicant ordered the vessel to proceed to the port of Bourgas in Bulgaria and, on 8 October 1991, further cargo began to be loaded. This consisted of a general cargo but also included a cargo of arms, ammunition and military spare parts which fell within the “IMCO Class 1” category (“The Arms Cargo”).

The applicant’s agent in Bourgas drew up bills of lading in respect of the cargo, including the Arms Cargo (“The Bills of Lading”). These Bills of Lading described the Arms Cargo as “special equipment”, followed by a reference to a numbered contract. The port of discharge for the “special equipment” was specified as Tartous Sar in Syria. The shipper was stated to be “Socotrade” and the consignee as “to order”.

The applicant’s agent in Bourgas also prepared a manifest of cargo. Like the Bills of Lading, this described the Arms Cargo as “special equipment”, and gave the port of discharge as Tartous Sar. The applicant at all times intended that the Arms Cargo should be discharged at the port of Bandar Abbas in Iran. The vessel sailed from Bourgas at 7 p.m. on 21 October 1991 and was ordered to proceed to Setubal in Portugal in order to load further cargo. In order to reach Setubal from Bourgas, the vessel had to transit through the Bosphorus.

2. The Arrest of the Vessel

On 22 October 1991, at about 3.30 p.m., the vessel was about to commence transit through the Bosphorus. Before entering the Straits, the Master of the vessel requested the assistance of a pilot for navigation through the Bosphorus. The vessel was flying the international signal flag to indicate that it carried dangerous cargo.

As a result of information received by the Turkish customs authorities from another Turkish vessel, which had recently arrived from Bulgaria, the Turkish authorities believed that the Arms Cargo on board the vessel was bound for Cyprus, from where it would be smuggled into Turkey.

According to the Turkish authorities, the vessel was first sighted when it was ten miles outside the Straits. After the vessel had entered the Straits, a pilot went on board and invited the Master to declare any hazardous materials which were on board. The Master duly did so, and the vessel proceeded for a few minutes through the Straits, before the pilot instructed the Master to stop the engine of the vessel.

The Turkish coast guard and other Turkish authorities boarded and seized the vessel. Since the waters were rough at the point where the vessel was stopped, it was towed by a military boat to the Turkish port of Bűyűkdere. All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the Straits governed by the Montreux Convention of 20 July 1936 (“The Montreux Convention”).

At Büyükdere the vessel was searched, and the Bills of Lading and Manifest of Cargo examined. The Turkish authorities discovered the Arms Cargo and questioned the Master of the vessel. The statement entitled “Protocol of Facts”, in which the Turkish authorities summarised their allegations and the actions which they had taken in respect of the vessel, was prepared and signed by all the officials who were present at the seizure and search of the vessel. The Master, the First Officer and the Radio Operator of the vessel were taken into custody by the Turkish authorities.

On 24 October 1991 statements were taken from the Master and First Officer in the form of affidavits. These formed part of the file which was submitted by the Public Prosecutor to a single judge of the İstanbul State Security Court.

3. The proceedings before the İstanbul State Security Court

On 28 October 1991, having examined the file and citing, inter alia, Articles 5 and 6 of the Montreux Convention, a single judge of the İstanbul State Security Court, approved the further detention of the vessel, its cargo and 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 aforementioned smuggling weapons could be used against the security of the Republic of Turkey.

On 30 October 1991 this decision was served on the lawyer instructed on behalf of the vessel and the Master. The following day, the lawyer filed an objection against the above decision, setting out the relevant provisions of the Montreux Convention and noting that Turkey is not in any state of war with any country within the provisions of its Constitution and that there is neither threat of war, nor risk thereof.

On 4 November 1991 the State Security Court dismissed this objection.

On 5 November the Chief Public Prosecutor at the İstanbul State Security Court indicted the Master, the First Officer and the Radio Officer of the vessel, charging them with organised transportation of firearms and shells. In the Public Prosecutor’s view, Turkey was at war with Cyprus. He cited various decrees of the Turkish Parliament which had authorised the sending of troops to Cyprus, and stated that:

“... notwithstanding the cease-fire achieved through the efforts of the United Nations Organisation putting an end to the armed conflict, no treaty having yet been signed, the state of war is ongoing from a legal point of view. Consequently, it becomes necessary to enforce Article 5 of the Montreux Convention. (...)

Pursuant to [Article 5 of the Montreux Convention], the commercial vessels of countries in war with Turkey shall not avail of a free passage through the Straits. Thereafter, the passage through the Straits without any restriction of a ship flying the Cypriot flag and laden with weapons not being allowed, the Turkish Government may exercise, for its own security and based on its sovereign rights and Article 5 of the said Convention, control over this ship and the weapons contained therein.” 

Since the vessel was registered as a Cypriot ship and flew the Cypriot flag, the Turkish authorities concluded that they had been entitled under Article 5 of the Montreux Convention to seize the vessel and to launch proceedings for arms smuggling.

During November and December 1991, the Government of the Islamic Republic of Iran sought the release of the vessel and its cargo through high-level diplomatic meetings. The issue was raised at presidential level and, on 11 November 1991, the Iranian Ambassador to Turkey visited the Deputy Foreign Minister to deliver copies of one of the Bills of Lading and of the Montreux Convention. This was intended to establish that the Arms Cargo was indeed being carried on behalf of the Iranian State.

By a letter dated 12 November 1991 the Foreign Minister of Turkey wrote to the Ministry of Justice giving an account of the meetings which had taken place, enclosing copies of the Bill of Lading and the Montreux Convention and offering to obtain further information on the “special equipment” listed on the Bill of Lading.

By a petition dated 13 November 1991, the lawyer acting on behalf of the owners of the vessel and the Master, pointed out to the State Security Court that the assumption according to which Turkey and Cyprus were at war with each other was the “crucial point” of the case. He requested the State Security Court to enquire immediately of the Ministry of Foreign Affairs as to whether a state of war existed. He also submitted that the Presidency of the Parliament should be asked whether there had been a declaration of war.

On 18 November 1991 the lawyer filed another petition with the court reiterating that Turkey was not at war with any other country (Cyprus included) and seeking the release of the Master on bail.

On 25 November 1991 the lawyer submitted a petition to the 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 status of war or not with the State of Cyprus”.

Under cover of a petition dated 29 November 1991, the applicant’s lawyer sent to the State Security Court translations of the charter-party and the Bills of Lading. He explained that the nature of a time charter was similar to a lease, and that the applicant charterers had control over the cargo and its documentation.

The Turkish Ministry of Foreign Affairs responded to the questions posed by the State Security Court in two letters dated 13 and 26 December 1991. The letters stated:

“... as there is no ‘state of war’ between Turkey and any other country, including the Greek Cypriot Administration, it is obvious that the arresting of the ship can not 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 is stated that the arms found on the ship belong to Iran. This has been certified by the Iranian authorities on several occasions.

On the other hand, statements by Bulgarian authorities exist in which it is expressed that the said arms have officially been sold to Iran by an agreement signed between Bulgaria and Iran in 1989 and that the arms were loaded in Bourgas.

3. Except for the limitations set out in Articles 4 and 5 of the Montreux Convention on the ‘state of war’, commercial ships flying  foreign flags enjoy full freedom of transit passage at times of peace, whatever their flag and cargo. It is stated above that it is impossible to invoke the  ‘state of war’ provisions of the Montreux Convention in this case as no state of war with the Greek Cypriot Administration exists. On the other hand, as per the international conventional and contractual laws, ships have the ‘right of innocent passage’ through the territorial waters of other countries...”

On 16 December 1991 the State Security Court ordered the release of the Master on bail, but the vessel and its cargo continued to be held by the Turkish authorities.

On 10 January 1992 the Public Prosecutor filed his written observations on the merits. He maintained his earlier position relying upon Article 5 of the Montreux Convention, contending that the vessel and the Arms Cargo should be seized and the Master imprisoned.

By January 1992 the applicant had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed. The applicant applied through its Turkish lawyer, Mr Aydın, to intervene in the proceedings before the State Security Court. In its application, the applicant set out its interest in the case as owner of the cargo, stressed that the Arms Cargo was being carried as part of a normal and legal commercial transaction and that Turkey was not at war with any country. He therefore asked for the unconditional release of the vessel and its cargo. The court ordered that the applicant be joined as intervener in the proceedings.

On 22 February 1992 the then Prime Minister of Turkey, Mr Sűleyman Demirel, issued a certificate which stated:

“The Republic of Turkey is not in a state of war with any country, Southern Cyprus included...”

By a judgment of 12 March 1992 the İstanbul State Security Court acquitted the First Officer and the Radio Operator, but convicted the Master of the vessel of importing arms into Turkey without official permission. It therefore sentenced him to five years’ imprisonment and a fine of fifty thousand Turkish liras. The court ordered that the Arms Cargo and the vessel be confiscated pursuant to the final paragraph of Article 12 of Law no. 6136, that the cargo other than the arms be returned to the applicant and that the Master bear the costs of the court hearing. With reference to a judgment of the Court of Cassation in a similar case1, the State Security Court held that in the present case there was bad faith on the part of the applicant since the bill of lading gave inaccurate information as to the content of the cargo and the route of the vessel. It noted that there was no justified reason for not informing the Turkish authorities of Iranian weapons passing through the Straits. The court further considered the following in relation to the Montreux Convention:

“The second question is whether the Turkish authorities were entitled to seize the munitions and weapons. Pursuant to the relevant Article of the Montreux Convention, passage of ships carrying firearms and owned by any state with which Turkey is in a state of war is forbidden.

The other important issue is whether Turkey is in a state of war with Greek Cypriot State, or  in other words, whether a peace agreement has been made after the war. It is known that Turkey has made war with the Greek Cypriot State, as a result of which Cyprus has been divided into two sections, that the Turkish Republic of Northern Cyprus has been established, that the Greek Cypriot State has not recognised the Turkish Republic of Northern Cyprus, and that until now, no agreement could be reached, and the interstate negotiations are in progress.

Therefore, the filed letter of the Ministry for Foreign Affairs ... and the filed letter of the Prime Ministry ... were disregarded.”

The judgment went on to refer to the Vassoula case,2 concerning another vessel, and concluded that “the existence of the state of war has been confirmed”.

Following the judgment of the State Security Court, the applicant paid the hire and expenses due to the owner and the charter-party amounting to 1,161,374.50 US dollars. Although the judgment of the State Security Court had ordered the return of the non-arms cargo to the applicant, it was not returned and by order dated 29 May 1992 the İstanbul Court of Commerce granted an injunction to the owner of the vessel which approved a lien for 4,111,168,608 Turkish liras over the cargo to secure unpaid hire.

4. The Appeal

On 13 March 1992 the applicant appealed against the judgment of the State Security Court. The applicant disputed the court’s conclusion that a state of war existed between Turkey and Cyprus. The ground of appeal also questioned the legitimacy of the reliance which the court had placed upon the earlier Vassoula case, and pointed out that the arms cargo had only been in transit through the Straits.

By a decision of 3 June 1992 the Court of Cassation quashed the State Security Court’s judgment. It held that there was no material evidence in the file proving that the arms would be discharged from the vessel in Turkey. As regards the applicability of the provisions of the Montreux Convention, the Court of Cassation held:

“... that the state of war mentioned in Article 4 of the Convention did not exist as also evidenced by the letters of the Foreign Ministry and the Prime Ministry which explicitly states that ‘Turkey is not in war with any country, including the Southern Greek Cyprus Administration’ (...) and that there is no place for application of Article 6 of the Montreux Convention. ...”

The case was remitted to the State Security Court for retrial.

By a petition of 3 September 1992, pending the re-trial of the Master of the vessel before the State Security Court, the applicant sought removal of the lien, which had been imposed by the İstanbul Court of Commerce over the cargo.

On 8 September 1992 the Court of Commerce refused the applicant’s request and therefore, on 18 September 1992, the applicant agreed to pay to the owner some of the hire charges without prejudice as to liability. In return, the owner agreed to relinquish its lien on the non-arms cargo. Under this agreement, the applicant had to pay 80% of the hire in respect of the period from 14 March 1992 to 13 September 1992 inclusive (1,118,074.40 US dollars). The applicant also agreed to pay 100% of future charges, as and when the payments fell due. The owner provided to the applicant a guarantee to repay the sum of 1,118,074.40 US dollars. The applicant was therefore obliged to pay the hire due, otherwise the Court of Commerce and the owner would not have released the vessel and its cargo.

On 30 September 1992 the State Security Court acquitted the Master on re-trial. The Public Prosecutor’s appeal against this judgment was dismissed by the Court of Cassation’s decision of 12 November 1992 and was approved on 13 November 1992.

On 18 November 1992 the State Security Court ordered that the vessel and the Arms Cargo should be released. The vessel left Turkey on 8 December 1992 and was re-delivered to the owner by the applicant under the terms of the charter-party on 9 March 1993.

5. The Compensation Proceedings

By a written petition dated 22 July 1993 the applicant brought an action before the İstanbul Court of Commerce claiming 38,087,249,964 Turkish Liras (equivalent to 3,386,598.98 US dollars) plus interest against the Ministry of Finance and Customs, with reference to the Ministry of Interior and the Ministry of Defence. The applicant based its claim upon Article 41 of the Code of Obligations and submitted that the seizure and detention of the vessel and its cargo was unjustified.

The petition went on to refer to and to distinguish the Vassoula case, and to explain the circumstances in which the applicant was forced to pay the hire charges and other expenses to the owner of the vessel.

On 28 September 1994, a first expert report was submitted to the Court of Commerce following its interlocutory order of 9 March 1994. The experts advised that the applicant’s claim should be declared inadmissible, principally on the basis that the applicant had chosen voluntarily and without legal compulsion to pay the hire charges under the charter-party.

The applicant objected to the first report and the Court of Commerce ordered the preparation of a second expert’s report on 11 November 1994.

On 3 April 1995 the second expert report was submitted to the court with the conclusion that the applicant’s claim should be rejected. This second panel of experts considered that the owner of the vessel, but not the applicant, could in appropriate circumstances claim compensation from the Turkish State. They expressed the opinion that the applicant’s claim might succeed in relation to dock and fuel expenses incurred, as well as supplementary losses under Article 105 of the Code of Obligations, but that the claim in respect of hire charges should fail.

On 13 June 1995 the applicant filed an objection against the second report and requested the court to rule on the case without obtaining a further report, or alternatively to obtain a third expert report.

By a decision dated 20 September 1995 the Court of Commerce dismissed the applicant’s claim for compensation, holding that the vessel was not a merchant vessel since it was carrying, in part, a cargo of arms. The court therefore ruled that there had been no breach of the Montreux Convention or of Turkish law, in particular the Code of Obligations.

On 6 November 1995 the applicant appealed.

On 27 December 1996 the Court of Cassation dismissed the appeal and upheld the judgment of the Court of Commerce. The applicant’s request for rectification of this decision was rejected by the Court of Cassation’s further decision of 22 May 1997. The latter decision was served on the applicant on 22 June 1997.

6. The London Arbitration

The charter-party provided, inter alia, that any dispute arising under it should be referred to arbitration in London. As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent, a dispute arose between the applicant and the owner of the vessel concerning the hire charges and other expenses paid by the applicant.

Following arbitration proceedings in London, it was held that the charter-party had been frustrated by the İstanbul State Security Court’s decision of 12 March 1992. The applicant therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after 12 March 1992, but was unable to recover 1,300,403.83 US dollars which it had paid or which it thereupon had to pay to the owner in respect of the period between the arrest on 22 October 1991 and 12 March 1992.

B.  Relevant international legal materials and domestic law

1. The Montreux Convention of 11 December 1936

The former signatories to the Treaty of Lausanne (1923) together with Yugoslavia and Australia, met at Montreux, Switzerland, in 1936 and abolished the International Straits Commission, returning the Straits zone to Turkish military control. Turkey was authorised to close the Straits to warships of all countries when it was at war or threatened by aggression. Merchant ships were to be allowed free passage during peacetime and, except for countries at war with Turkey, during wartime. The convention was ratified by Turkey, Great Britain, France, the USSR, Bulgaria, Greece, Germany, and Yugoslavia, and—with reservations—by Japan.

Article 2 § 1

“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...”

Article 4 § 1

“In time of war, Turkey not being belligerent, merchant vessels, under any flag or with any kind of cargo, shall enjoy freedom of transit and navigation in the Straits subject to the provisions of Articles 2 and 3.”

Article 5 § 1

“In time of war, Turkey being belligerent, merchant vessels not belonging to a country at war with Turkey shall enjoy freedom of transit and navigation in the Straits on condition that they do not in any way assist the enemy.”

Article 6 § 1

“Should Turkey consider herself to be threatened with imminent danger of war, the provisions of Article 2 shall nevertheless continue to be applied except that vessels must enter the Straits by day and their transit must be effected by the route which shall, in each case1 be indicated by the Turkish authorities.”

2. The Code of Obligations

Article 41

“Every person who causes damage to another in an unjust manner, whether wilfully, or negligently and carelessly or imprudently is obliged to compensate that damage”

The civil courts are not bound by either the findings or the verdict of the criminal court (Article 53).

3. Law no. 6136 of 15 July 1953 (as amended by law nos. 2249 and 2478 of 12 June 1979 and 23 June 1981 respectively)

Article 12 makes it an offence to smuggle, to attempt to smuggle or to assist in smuggling firearms or bullets into the country.

COMPLAINTS

The applicant complains of a violation of Articles 6 § 1, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicant submits that the initial seizure and subsequent detention of the vessel “Cape Maleas” and the exercise of criminal jurisdiction over the officers and the vessel constituted an infringement of public international law, the Montreux Convention and Turkish law, and subsequently breached Article 6 § 1 of the Convention.

The applicant maintains in this connection that the seizure and detention of the vessel and the subsequent exercise of criminal jurisdiction all proceeded on the false assumption that Turkey was in a state of war with Cyprus and that accordingly, the provisions of the Montreux Convention governing free transit did not apply to this Cypriot registered vessel. The Montreux Convention has imposed a territorial limitation upon the authority of Turkey. As a result, the Government of Turkey lacked power to seize the vessel and to subject it to Turkish law. Any other conclusion would nullify the purpose and effect of the Montreux Convention.

The applicant contends under Article 1 of Protocol No. 1 to the Convention that the seizure of the vessel constituted a deprivation of property or, alternatively, an interference with the peaceful enjoyment of its rights under the charter-party within the meaning of Article 1 § 1 of Protocol No. 1. It further asserts that the seizure of the vessel and its cargo constituted an unjustified control of use of use of property under the second paragraph of Article 1 of Protocol No. 1.

The applicant alleges under Article 13, in conjunction with Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1, that it has been denied an effective remedy before the Turkish courts for the violations it has suffered.

The applicant complains under Article 14, in conjunction with Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1, that it has been discriminated against since the Cypriot registration and flag of the vessel caused or contributed to the national authorities’ decision to seize the vessel.

THE LAW

1. The applicant submits under Article 6 § 1 of the Convention that the initial seizure and subsequent detention of the vessel “Cape Maleas” and the exercise of criminal jurisdiction over the officers and the vessel constituted an infringement of public international law, the Montreux Convention and Turkish law.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant contends under Article 1 of Protocol No. 1 to the Convention that the seizure of the vessel constituted a deprivation of property or, alternatively, an interference with the peaceful enjoyment of its rights under the charter party within the meaning of Article 1 § 1 of Protocol No. 1. It further asserts that the seizure of the vessel and its cargo constituted an unjustified control of use of property under the second paragraph of Article of Protocol No. 1.

Article 1 of Protocol No. 1 provides:

“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.”

In so far as the applicant alleges that the seizure of the vessel constituted a deprivation of property or, alternatively, an interference with the peaceful enjoyment of its rights under the charter party, the Court considers that the applicant company cannot be a victim of a violation of the Convention since it is not the owner of the vessel. Accordingly, this limb of the complaint is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 § 3 of the Convention.

However, in so far as the applicant complains that the seizure of the cargo aboard the vessel constituted an unjustifed control of use of property, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant alleges under Article 13, in conjunction with Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1, that it has been denied an effective remedy before the Turkish courts for the violations it has suffered.

Article 13 of the Convention reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 guarantees an individual, who has an arguable claim to the status of a victim of a violation of the rights set forth in the Convention, availability of a remedy at national level in order to have his claim decided and, if appropriate, to obtain redress (see Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, p. 42, § 113). However, it is not necessary under Article 13 that an individual obtains a favourable decision on the substance of his claim (see Salonen v. Finland, no. 27868/95, Commission decision of 2 July 1997, Decisions and Reports (DR) 90, p. 60).

The Court observes that the applicant could successfully appeal to the Court of Cassation and secure the release of the cargo aboard the vessel. It could also bring compensation proceedings before the İstanbul Court of Commerce and the Court of Cassation for the damages resulting from the seizure of the vessel. Both of these instances were competent to examine the substance of the applicant’s claim. Since the “remedy” guaranteed by Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint, the Court considers the above-mentioned remedies effective within the meaning of this provision.

It follows that this part of the application is manifestly ill-founded and, therefore, must be rejected in accordance with Article 35 § 3 of the Convention.

4. The applicant complains under Article 14, in conjunction with Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1, that it has been discriminated against since the Cypriot registration and flag of the vessel caused or contributed to the national authorities’ decision to seize the vessel. Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In the light of the evidence submitted to it, the Court considers that the applicant’s allegations are unsubstantiated.

It follows that this part of the application is also manifestly ill-founded and, therefore, must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that the seizure of the cargo aboard the vessel constituted an unjustified control of use of property within the meaning of Article 1 of Protocol No. 1 to the Convention and that the initial seizure and subsequent detention of the vessel “Cape Maleas” and the exercise of criminal jurisdiction over the officers and the vessel constituted an infringement of public international law, the Montreux Convention and Turkish law contrary to Article 6 § 1 of the Convention.

 

Declares the remainder of the application inadmissible.

Søren Nielsen Christos ROZAKIS 
 Deputy Registrar President

1 By a decision of 19 June 1978 (no. 978/8-189-245) in the “Vassoula” case, the General Criminal Panel of the Court of Cassation held that the state of war had not yet ended following the Cyprus Peace Operation which started on 20 July 1974.


2 ibid


ISLAMIC REPUBLIC OF IRAN v. TURQUIE DECISION


ISLAMIC REPUBLIC OF IRAN v. TURQUIE DECISION