The incompatibility of such application with the rights to which I have just referred remains to be greater when the alleged act arises from a mistake, which, as is frequently the case in collisions, has not perhaps been dedicated by a single person on board one of the vessels, however by totally different persons on board each ships in collision. Consequently, as quickly as it is admitted that the consequences of the offence were produced on the Turkish vessel, it becomes inconceivable to hold that there may be a rule of worldwide regulation which prohibits Turkey from prosecuting Lieutenant Demons because of the reality that the creator of the offence was on board the French ship. Again, the Court doesn’t know of any cases by which governments have protested towards the truth that the criminal law of some nation contained a rule to this effect or that the courts of a country construed their criminal regulation in this sense. French courts have, in regard to a big selection of conditions, given selections sanctioning this way of interpreting the territorial precept. For the aim of defending ships on the high seas, we must therefore look to an affordable and equal interpretation and software of the precept of the territoriality of ships. In the same order of thought however from another perspective, I find equally menacing to the rights of man the claim to apply the same rules as might be fair in the case of most true offences, to an involuntary offence even when its injurious results went as far as to trigger the death of a person. In the unique protest presented by the French Chargé at Angora on August eleventh, 1926, against the legal prosecution of M.
On the opposite hand, the Turkish Government takes the view that Article 15 allows Turkey jurisdiction every time such jurisdiction does not come into battle with a precept of international regulation. Moreover, the information of the preparation of the Convention respecting conditions of residence and business and jurisdiction wouldn’t furnish anything calculated to overrule the development indicated by the actual phrases of Article 15. – Lieutenant Demons and the captain of the Turkish steamship had been prosecuted collectively and concurrently. The two opposing proposals designed to find out undoubtedly the area of software of Turkish criminal regulation having thus been discarded, the wording in the end adopted by widespread consent for Article 15 can only discuss with the ideas of common worldwide regulation relating to jurisdiction. What I am unable to merely accept in this case is the appliance of jurisdictional rights which would end result within the jurisdictional constraint which I have described.
An examination of the opinions of the judges on this point, as far as they positively expressed any, will show that a mere depend of palms would be altogether misleading, and that, taking together their reasons and their conclusions, if sure rules of law, now undoubtedly established in England, had then been applied, the conclusions would have been totally different. It is true that the representatives of France, Great Britain and Italy rejected the Turkish modification already talked about. If that question is answered in the adverse, as I suppose it must be, istanbul lawyer Article 6 of the Turkish Penal Code didn’t bind France, and the jurisdiction of the Turkish Court to strive Demons could not be supported on this floor. This clearly refers to the basic principles of worldwide law within the strange sense of the time period and it applies to felony as properly as to civil proceedings. Article 15 of the Convention of Lausanne provides that “in all matters underneath reserve of Article 16 questions of judicial competence shall, within the relations between Turkey and the opposite contracting Powers, be regulated conformably to the ideas of worldwide law”.
It is necessary to ensure a enough safety of basic rights. The query simply is whether, by common consent, “protection” of this kind has turn into part of worldwide regulation. In regard to the conception of “connexity” of offences , the Turkish Agent in the submissions of his Counter-Case has referred to the Turkish Code of legal process for trial, the provisions of which are stated to have been taken from the corresponding French Code.
The Court, of course, could never allow itself to be entangled in arguments for and in opposition to the theory. The comparison between judicial and administrative freezing of assets shows a level of difference in protecting particular person rights. The French Government maintains the affirmative within the case before the Court. The fundamental error of this contention is its endeavour to search out sources of international legislation in locations where they don’t exist. International law is not created by an accumulation of opinions and techniques; neither is its supply a sum total of judgments, even when they agree with one another. In the case of the freezing of belongings, the scales are clearly tipped in favour of efficiency. Whereas individuals facing the judicial freezing of property are protected by the guarantees provided in judicial procedures, those being focused by administrative sanctions are denied the identical protection. Within the scope of the investigation in question, the Public Prosecutor might request a decision from the courtroom requesting seizure of the assets thought-about to be acquired from offence.
This principle has been pretty incessantly applied in international instances, particularly in collision instances ; and it might not seem that there is any purpose for not applying it in the case of the Boz-Kourt and Lotus. This view appears to be based on a misconception of the proposition that a ship on the high seas could additionally be considered a half of the territory of the nation whose flag she flies.
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