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CASE of IRELAND V. the UNITED KINGDOM

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CASE of IRELAND V. the UNITED KINGDOM Page 1 of 86 COURT (PLENARY) CASE OF IRELAND v. THE UNITED KINGDOM (Application no. 5310/71) JUDGMENT STRASBOURG 18 January 1978 http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=7308599&skin=hudoc-en&actio... 6/5/2006 Page 2 of 86 In the case of Ireland v. the United Kingdom, The European Court of Human Rights, taking its decision in plenary session in application of Rule 48 of the Rules of Court and composed of the following judges: Mr. G. BALLADORE PALLIERI, President, Mr. G. WIARDA, Mr. M. ZEKIA, Mr. J. CREMONA, Mr. P. O’DONOGHUE, Mrs. H. PEDERSEN, Mr. THÓR VILHJÁLMSSON, Mr. R. RYSSDAL, Mr. W. GANSHOF VAN DER MEERSCH, Sir Gerald FITZMAURICE, Mrs. D. BINDSCHEDLER-ROBERT, Mr. D. EVRIGENIS, Mr. P.-H. TEITGEN, Mr. G. LAGERGREN, Mr. L. LIESCH, Mr. F. GÖLCÜKLÜ, Mr. F. MATSCHER, and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar, Having deliberated in private on 10 and 11 February, 22 and 25 to 27 April, 25 to 28 July and 6 to 13 December 1977, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. This case was referred to the Court by the Government of Ireland ("the applicant Government"). It originated in an application against the Government of the United Kingdom of Great Britain and Northern Ireland ("the respondent Government") lodged by the applicant Government with the European Commission of Human Rights ("the Commission") on 16 December 1971 under Article 24 (art. 24) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The report drawn up by the Commission concerning the said application (Article 31 of the Convention) (art. 31) was transmitted to the Committee of Ministers of the Council of Europe on 9 February 1976. 2. The Irish Government’s application to the Court was lodged with he registry on 10 March 1976, within the period of three months laid own by Articles 32 para. 1 and 47 (art. 32-1, art. 47) of the Convention, and referred to Article 48 (art. 48). Its object is "to ensure the observance in Northern Ireland of the engagements undertaken by the respondent Government as a High Contracting Party to the Convention and in particular of the engagements specifically set out by the applicant Government in the pleadings filed and the submissions made on their behalf and described in the evidence adduced before the Commission in the hearings before them". "To this end", the Court is invited "to consider the report of the Commission and to confirm the opinion of the Commission that breaches of the Convention have occurred and also to consider the claims of the applicant Government with regard to other alleged breaches and to make a finding of breach of the Convention where the Court is satisfied that a breach has occurred". The United Kingdom is one of the States which have declared that they recognise the compulsory jurisdiction of the Court (Article 46) (art. 46). 3. The Registrar received twenty-five copies of the Commission’s report from its Secretary on 17 http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=7308599&skin=hudoc-en&actio... 6/5/2006 Page 3 of 86 March 1976. 4. The Chamber of seven judges to be constituted included, as ex officio members, Mr. P. O’Donoghue, the elected judge of Irish nationality, and Sir Gerald Fitzmaurice, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 20 March 1976, the President of the Court drew by lot, in the presence of an official of the registry, the names of the four other members, namely Mr. H. Mosler, Mr. M. Zekia, Mr. S. Petrén and Mrs. D. Bindschedler-Robert (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Mr. Balladore Pallieri assumed the office of President of the Chamber (Rule 21 para. 5). 5. On 29 April 1976, the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court, "considering that the case raise[d] serious questions affecting the interpretation of the Convention". 6. At a meeting held on 18 May 1976, the President ascertained the views of the Agents of the Parties and of the delegates of the Commission regarding the procedure to be followed. He decided by an Order of the same date that the applicant Government should have until 2 August 1976 to file a memorial, that the respondent Government should then have until 30 October 1976 to file a memorial in reply and that the delegates of the Commission should be entitled to present their written observations, if any, within one month of the receipt of the said memorial in reply. By an Order of 19 November 1976, the President extended the last-mentioned time-limit until 15 December. The memorials of the applicant Government, the respondent Government and the delegates of the Commission were received at the registry on 30 July, 28 October and 15 December 1976, respectively. 7. By an Order of 26 July 1976, the President of the Court, having regard to Rule 29 para. 3 and with the agreement of the two Governments concerned and of the Commission, instructed the Registrar to make the Commission’s report public only after incorporation of changes approved by the President and having the sole purpose of protecting the identity of certain persons. The report was so made public as from 2 September 1976. 8. The President met the Agents of the Parties and the delegates of the Commission on 7 December 1976 in order to consult them on the organisation of the hearings. On 7 January 1977, he decided, with the agreement of the Court, that the first part of the oral proceedings would open on 7 February and would concern the following questions: "(a) Is the jurisdiction of the Court to examine any particular issue of fact or law limited by the original allegations of the Government of Ireland and/or by the decision of the Commission on the admissibility of application no. 5310/71? In the affirmative, do certain issues of fact or law fall outside this jurisdiction in the present case? (b) Has the Court jurisdiction to pronounce on the existence of the violations of the Convention found by the Commission in its report and which are not contested by the United Kingdom Government? In the affirmative, should the Court exercise that jurisdiction? (c) Should the Court examine the cases mentioned in paragraphs 2.30 and 2.31 of the memorial of the delegates of the Commission? (d) Is it proper in the circumstances of this case for the Court, without further enquiry into the facts, to: (i) confirm the conclusions of the Commission to the extent that they are not contested? (ii) deal only with the substance of those questions which give rise to dispute between the Parties? (e) Has the Court jurisdiction to review the procedural decisions of the Commission as such and/or should the Court, when assessing the conclusions of the Commission, have regard to the procedure followed by the latter body? (f) Does Article 1 (art. 1) of the Convention create any rights in addition to those defined in Section I and can it be the subject of a separate breach?" Oral hearings were accordingly held in public at the Human Rights Building, Strasbourg, from 7 to 9 February. Immediately afterwards, the Court deliberated in private. At its request, the President, by Order of 11 February, advised the Parties and the Commission of the following matters to be taken into account by them during the further procedure: http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=7308599&skin=hudoc-en&actio... 6/5/2006 Page 4 of 86 "1. In the circumstances of this case, the Court does not consider that the reasons which have been given why it should refrain from pronouncing on the non-contested allegations of violation of Article 3 (art. 3) of the Convention are such as to preclude it from so pronouncing. However, the Court considers that it is already in possession of sufficient information and materials to enable it to make such a pronouncement. 2. The Court takes note of the fact that it is no longer invited by the applicant Government to examine the cases mentioned in paragraph 2.30 of the memorial of the delegates of the Commission; it does not deem it necessary to examine them proprio motu. 3. The Court finds that is has jurisdiction to take cognisance of the other contested cases of violation of Article 3 (art. 3) (paragraph 2.31 of the memorial of the delegates of the Commission) if and to the extent that the applicant Government put them forward as establishing the existence of a practice. 4. The Court finds that it does not have jurisdiction to rule on the correctness of the procedure followed by the Commission for hearing the witnesses G 1, G 2 and G 3 in London on 20 February 1975, but that it is empowered to assess the relevance and probative value of the evidence so obtained." After consulting the representatives of the two Governments concerned and of the Commission, the President, by the same Order, fixed 19 April 1977 as the date for resumption of the hearings. The second part of the hearings was held in public at the Human Rights Building, Strasbourg, from 19 to 22 April. 9. At the hearings of February and/or April 1977 there appeared before the Court: - for the applicant Government: Mr.
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