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the maintenance of international peace and security cannot operate so as to silencethe general principles of Community law and deprive individuals of theirfundamental rights. This does not detract from the importance of the interest inmaintaining international peace and security; it simply means that it remains theduty of the courts to assess the lawfulness of measures that may conflict withother interests that are equally of great importance and with the protection ofwhich the courts are entrusted. (…)’‘35. Certainly, extraordinary circumstances may justify restrictions on individualfreedom that would be unacceptable under normal conditions. However, thatshould not induce us to say that ‘there are cases in which a veil should be drawn fora while over liberty, as it was customary to cover the statues of the gods’. Nor doesit mean, as the United Kingdom submits, that judicial review in those cases shouldbe only ‘of the most marginal kind’. On the contrary, when the risks to publicsecurity are believed to be extraordinarily high, the pressure is particularly strongto take measures that disregard individual rights, especially in respect ofindividuals who have little or no access to the political process. Therefore, in thoseinstances, the courts should fulfil their duty to uphold the rule of law withincreased vigilance. Thus, the same circumstances that may justify exceptionalrestrictions on fundamental rights also require the courts to ascertain carefullywhether those restrictions go beyond what is necessary. As I shall discuss below, theCourt must verify whether the claim that extraordinarily high security risks exist issubstantiated and it must ensure that the measures adopted strike a proper balancebetween the nature of the security risk and the extent to which these measuresencroach upon the fundamental rights of individuals’.‘37. It is certainly correct to say that, in ensuring the observance of fundamental rightswithin the Community, the Court of Justice draws inspiration from the case-law ofthe European Court of Human Rights. None the less, there remain importantdifferences between the two courts. The task of the European Court of HumanRights is to ensure the observance of the commitments entered into by theContracting States under the Convention. (…) The EC Treaty, by contrast, hasfounded an autonomous legal order, within which States as well as individuals have© Van Diepen Van der Kroef Advocaten page 88 of 99
immediate rights and obligations. The duty of the Court of Justice is to act as theconstitutional court of the municipal legal order that is the Community. (…)’‘38. The Council asserted at the hearing that, by exercising its judicial task in respect ofacts of Community institutions which have their source in Security Councilresolutions, the Court would exceed its proper function and ‘speak on behalf of theinternational community’. However, that assertion clearly goes too far. Of course,if the Court were to find that the contested resolution cannot be applied in theCommunity legal order, this is likely to have certain repercussions on theinternational stage. It should be noted, however, that these repercussions need notnecessarily be negative. They are the immediate consequence of the fact that, asthe system governing the functioning of the United Nations now stands, the onlyoption available to individuals who wish to have access to an independent tribunalin order to obtain adequate protection of their fundamental rights is to challengedomestic implementing measures before a domestic court. (…)’‘44. (…) However, the Court cannot, in deference to the views of those institutions(intended: such as the Security Council, addition of counsel),, turn its back on thefundamental values that lie at the basis of the Community legal order and which ithas the duty to protect. Respect for other institutions is meaningful only if it canbe built on a shared understanding of these values and on a mutual commitment toprotect them.Consequently, in situations where the Community’s fundamental values are in thebalance, the Court may be required to reassess, and possibly annul, measuresadopted by the Community institutions, even when those measures reflect thewishes of the Security Council ...’45. The fact that the measures at issue are intended to suppress internationalterrorism should not inhibit the Court from fulfilling its duty to preserve the ruleof law. In doing so, rather than trespassing into the domain of politics, the Court isreaffirming the limits that the law imposes on certain political decisions. This isnever an easy task, and, indeed, it is a great challenge for a court to apply wisdomin matters relating to the threat of terrorism. Yet, the same holds true for thepolitical institutions. Especially in matters of public security, the political process© Van Diepen Van der Kroef Advocaten page 89 of 99
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Against:1. The State of the Netherl
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- the motion by the State of the Ne
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options exist side by side and do n
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22. The Public Prosecutions Departm
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Explanation of ground of appeal 427
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eferred to the fact that the proces
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No legal relevant interest of the S
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The Article envisages a situation i
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The Hague District Public Prosecuto
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54. The District Court is evidently
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functional necessity. In that conte
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only in Germany. It was not dispute
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immunity of the UN has no absolute
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‘Darüber hinaus kann gefragt wer
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the purpose would become subservien
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exercise of their functions in conn
Page 38 and 39: ) leads to a result which is manife
Page 40 and 41: 90. The ICJ gave an Advisory Opinio
Page 42 and 43: of functional necessity for immunit
Page 44 and 45: 100. Even where the District Court
Page 46 and 47: 105. The District Court referred un
Page 48 and 49: necessary that change is there effe
Page 50 and 51: 115. It is also incomprehensible th
Page 52 and 53: consideration 3.3.6). Under legal c
Page 54 and 55: desirable that national courts do n
Page 56 and 57: evidence of the necessity of conduc
Page 58 and 59: The whole point of the Genocide Con
Page 60 and 61: prevent the genocide. Worse still,
Page 62 and 63: 137. It was known at the UN - and b
Page 64 and 65: 144. It is established as a result
Page 66 and 67: 151. The Basic Principles provide t
Page 68 and 69: Convention and the Geneva Conventio
Page 70 and 71: uling of the European Court of Huma
Page 72 and 73: torture must be accountable is not
Page 74 and 75: is in that connection incorrect. Th
Page 76 and 77: Ground of appeal 14178. The Distric
Page 78 and 79: human rights treaties, ECHR and ICC
Page 80 and 81: they rely for their effectiveness o
Page 82 and 83: Association et al. will below furth
Page 84 and 85: And also:‘Reaffirming their profo
Page 86 and 87: eason enjoys immunity from jurisdic
Page 90 and 91: is liable to become overly responsi
Page 92 and 93: lack of jurisdiction of the Communi
Page 94 and 95: would occupy in the hierarchy of no
Page 96 and 97: 209. To conclude, the Association e
Page 98 and 99: Explanation of ground of appeal 172
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