DISSENTING OPINION OF JUDGE LORENZEN JOINED BY JUDGES RAIMONDI AND JOÄŒIENÄ–

I am unable to agree with the majority that there has been a violation of Article 6 of the Convention in the present case. My reasons are as follows.

I fully agree with the majority ’ s finding that the applicants ’ complaint must be understood as an allegation that there has been a violation of the right of access to a court under Article 6 of the Convention. For the reasons given in the judgment I also agree with the majority that the Court had jurisdiction to examine this complaint under Article 1 of the Convention.

It is undisputed that the applicants did not have access to a court to the extent required by Article 6 of the Convention. A crucial question is therefore whether this was justified by the fact that the decision to confiscate their assets was taken in order to comply with Resolution 1483 (2003) adopted by the UN Security Council. According to the majority, a condition for restricting the applicants ’ right of access to a court on account of obligations for the respondent State under other international instruments must be the establishment of “an equal protection” within the relevant international organisation. As this is not the case in respect of the measures prescribed in Resolution 1483 (2003) , the majority conclude that Article 6 has been violated.

I am not able to agree with this reasoning, which in my opinion overlooks important issues which the Court has not ruled upon so far in its jurisprudence. The most crucial one is the impact of Article 103 of the Charter of the United Nations, under which the obligations of the member States of the United Nations prevail in case of a conflict with other international instruments. Such an obligation follows from Article 25 of the Charter, pursuant to which the member States are obliged “to accept and carry out” the decisions of the Security Council.

In earlier cases the Court had to rule on an alleged conflict between decisions of the Security Council and the obligations of a member State under the Convention, but in none of them was it found that a real conflict actually exist ed . Thus in the Al-Jedda case ( Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011) the Grand Chamber found that the decision of the Security Council did not specifically mention internment without trial, which was found to be in breach of Article 5 of the Convention. Furthermore, in the Nada case ( Nada v. Switzerland [GC], no. 10593/08 , § 180, ECHR 2012) the Court found that Switzerland “enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council”.

In Al-Jedda (cited above, § 102) the Court assumed that “it [was] to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law”. Even if there are no indications in Resolution 1483 (2003) that it was the intention that member States should take measures in conflict with such obligations, it remains nevertheless clear that the resolution im poses an unconditional obligation on member States to freeze certain funds or other financial assets and to transfer them to the Development Fund for Iraq. It is undisputed that the assets of the applicants, who were on the list established under Resolution 1518 (2003), were covered by that obligation. The majority have accordingly, like the Swiss Federal Court, concluded that these resolutions “[did] not confer on the States concerned any discretion in the implementation of the obligations arising thereunder” (paragraph 117 of the judgment). I can only agree with that.

In the present case the Court was therefore confronted with a situation where a conflict between obligations under the United Nations Charter and under the Convention could only be solved by giving one of them priority. With sole reference to the “equal protection” principle – which was not applied or even mentioned by the Grand Chamber in Al-Jedda and Nada – the majority have not directly addressed the issue of how such a conflict should be resolved but have only indirectly concluded that, where no equal protection exists, the Convention obligations prevail.

In my opinion the judgment should have addressed the importance of Article 103 of the United Nations Charter, and I find it regrettable that the Swiss Government vetoed the well-founded decision of the Chamber to relinquish this case, raising novel and important issues, to the Grand Chamber.

In the circumstances of the present case, the conflict between the United Nations Charter and the Convention can, in my opinion, only be re solved by accepting that the decision of the Swiss authorities to confiscate the applicants ’ assets in order to comply with Resolution 1483 (2003) could not be judged on the merits in national court proceedings, as the outcome of such proceedings might have had the effect of setting aside the obligations i mposed on member States by the R esolution. In this respect I entirely share the detailed and convincing analysis of the Federal Court, which concludes that in case of a conflict between the obligations under Article 103 of the Charter and obligations under the Convention, States parties to both legal instruments are bound to give the Charter obligations priority. According to the interpretation of the International Court of Justice, the obligations under Article 103 of the Charter include those stemming from the measures adopted by the Security Council under Chapter VII of the Charter. I likewise agree that no other result can in the present case be justified by jus cogens , as the right of access to a court clearly does not belong to such norms. I furthermore observe that the case before the Federal Court only concerned the claim that the decision to confiscate the applicants ’ assets should be annulled and that they were heard before the decision on confiscation was taken and during the Federal Court proceedings . Even though the proceedings thus did not, as such, concern the question whether the applicants had rightly or wrongly been placed on the list under Resolution 1518 (2003), the Federal Court accorded them further time in order to address to the UN Sanctions Committee a new request to have their names deleted from the list. I have noted the judgments of the European Court of Justice in Kadi and the Supreme Court of the United Kingdom in Ahmed and others but have not found that in the circumstances of the present case they could lead to a different result. The Kadi case exclusively related to a measure adopted by an institution within the legal system of the European Union, which is not itself a party to the UN Charter.

If what is stated in paragraph 130 of the judgment intends to say that Resolution 1483 (2003) should be attributed less importance because its aim is not to prevent a n immediate threat of terrorism but to re -establish the autonomy and sovereignty of the Iraqi Government and to give the Iraqi people the possibility of determining their political future and control ling their natural resources, I am not able to agree with such an interpretation. The R esolution states expressly that the situation in Iraq continues to threaten international peace and security, and in any event it is not for the Court to make an assessment of whether the Security Council was justified in presc ribing the measures in the R esolution.

The Federal Court therefore did not violate Article 6 of the Convention by refusing to consider the applicants ’ claim on the merits. Even if the Convention – unlike Article 30 of the Vienna Convention on Treaties – does not contain an express provision giving priority where necessary to the obligations under the United Nations Charter, it must be applied as if this were the case. Furthermore in respect of the right of access to a court , this can be said to follow already from the Court ’ s interpretation of Article 6. The right of access to a court is thus not absolute, but may be subject to limitations permitted by implication. Even if these limitations may normally not restrict or reduce that right to such an extent that its very essence is impaired, there are examples where the Court has accepted limitations which left little, if anything at all, of the right of access to a court (see, for example, concerning State immunity, Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 ‑ XI, and concerning parliamentary immunity, A. v. the United Kingdom , no. 35373/97, ECHR 2002 ‑ X) . The priority for implementing binding resolutions of the UN Security Council can be said to belong to this category of exceptions.

Based on what is said above, I can only come to the conclusion that there has been no violation of Article 6 of the Convention. However, that being said, I would like to add that I fully share the opinions expressed by the majority and by national and international institutions that the proceedings in respect of establishing the lists under the resolutions of the UN Security Council and the possibility of challenging them are clearly unsatisfactory and do not comply with international human rights standards. Nevertheless as long as this has not been remedied by the Security Council – of which three member States of the Council of Europe are permanent members – the obligation under Article 103 of the UN Charter must in my opinion be respected.

[1] For the full text of Resolution 1483 (2003), see paragraph 47 below.

[2] A State can decide, that as a rule, its citizens or residents should address their de-listing requests directly to the focal point. The State will do so by a declaration addressed to the Chairman of the Committee that will be published on the Committee’s website.

[3] . Article 14 § 1 of the Covenant reads as follows: “ All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order ( ordre public ) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children .”

[4] “(34) Recognized hierarchical relations by virtue of a treaty provision: Article 103 of the Charter of the United Nations. A rule of international law may also be superior to other rules by virtue of a treaty provision. This is the case of Article 103 of the United Nations Charter ...

(35) The scope of Article 103 of the Charter. The scope of Article 103 extends not only to the Articles of the Charter but also to binding decisions made by United Nations organs such as the Security Council. Given the character of some Charter provisions, the constitutional character of the Charter and the established practice of States and United Nations organs, Charter obligations may also prevail over inconsistent customary international law.”