Writ of summons - Van Diepen Van der Kroef

‘In the determination of his civil rights and obligations or of any criminal chargeagainst him, everyone is entitled to a fair and public hearing within a reasonable timeby an independent and impartial tribunal established by law.’It is generally acknowledged that the guarantee of a “fair trial” in Article 6 paragraph 1EECHR also implies the right of access to the court. This has been the enduring caselawof the European Court of Human Rights since Golder v. United Kingdom (Applicationno. 4451/70). In the Case Waite and Kennedy v. Germany (Application no. 26083/94)the European Court of Human Rights once again confirmed this with the followingjudgment (legal consideration 67):‘It should be recalled that the Convention is intended to guarantee not theoretical orillusory rights, but rights that are practical and effective. This is particularly true forthe right of access to the courts in view of the prominent place held in a democraticsociety by the right to a fair trial.’Moreover, the European Court of Human Rights in the Case Waite and Kennedy v.Germany permitted the claim of immunity invoked by the European Space Agency(ESA) to prevail only because alternative legal remedies were available. That impliesthat in the present case immunity cannot be accorded as Plaintiff has no alternative legalremedy available against the UN.Article 105 UN Charter is consequently irreconcilable with the above basic assumptionsor provisions because a claim by the UN to immunity would lead in the present case toPlaintiff being afforded no access to an independent court.457. The UN has itself realized to a certain degree the problematic regarding an alternativelegal remedy. That problematic is the reason why Section 29 of the Conventionprovides:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com190