CONCURRING OPINION OF JUDGE KŪRIS

1. I agree with the finding that Switzerland has violated the applicants’ rights under Article 6 § 1 of the Convention. At the same time, I do not unreservedly support the line of reasoning, wherein the basis for the finding of this violation is sought, first of all, in the possibility of a Convention-friendly interpretation of the United Nations Security Council resolutions relevant to the present case. It is difficult to accept unconditionally that Switzerland enjoyed much in the way of meaningful latitude in implementing the resolutions in question. Be that as it may, the violation of Article 6 § 1 had to be found in this case regardless of whether Switzerland enjoyed such latitude or not. The violation thus found is a violation of the law of the Convention, and the law of the Convention has been violated even though the law of the United Nations was scrupulously followed.

2. This case deals with one occurrence of fragmentation of international law. There are more such instances. Full consistency of international law, including full coherence between the law of the Convention and the law of the United Nations, would be an ideal. Ideals are unachievable by definition. Moreover, such coherence cannot be achieved by the efforts of this Court alone, especially bearing in mind its regional nature. Any progress in this direction depends, first and foremost, on the political will of the UN member States, which, given the nature of the international political process, means that such progress cannot go all the way up to the absolute.

3. Still, all attempts to rationally interpret the provisions of the two coexisting and, at the same time, competing legal systems is praiseworthy. In this context, I am of the opinion that the present judgment, wherein the United Nations Security Council resolutions are interpreted in such a manner that the gap between them and the Convention is minimised, at least to some extent, could have benefited from some of the insights so elegantly expounded in the concurring opinion of Judge Paulo Pinto de Albuquerque. Although I am not able to agree with all of his ideas (for instance, with the opinion that this Court should be seen as the “European Constitutional Court”), I endorse many of his arguments aimed at judicial harmonisation of international law.

PARTLY DISSENTING OPINION OF JUDGE ZIEMELE

1. I voted against the finding of a violation of Article 6 § 1 in the circumstances of this case. My disagreement lies primarily with the Court’s analysis of the domestic proceedings and of the reasoning of the domestic courts. At the same time, I share a number of important statements of principle as regards the place of the Convention in the system of international law and its relationship with the obligations stemming from the UN Charter. I will first reiterate those principles.

– The purpose of maintaining international peace and security, which the United Nations pursues, is both a legitimate aim for limiting access to a court, which is an issue at stake in this case, and an important element in the analysis of the alleged conflict of obligations.

– The Court does not interpret the Convention in a vacuum; it takes into account any relevant rules and principles of international law applicable between the Contracting Parties.

– The Court puts forward a presumption of human rights compliance, namely, that the Security Council does not intend to impose any obligations on member States to breach human rights; where there is such an intention, it has to be explicit.

– Conflict of obligations should be avoided through a systemic interpretation and harmonisation of international obligations.

2. The Court has, however, added to the above list the principles that derive specifically from its interpretation of the object and purpose of the Convention. In the case at hand, the Court has considered it necessary to resort to the principle that the Convention is a constitutional instrument of European public order. It explains that “the States parties are required ... to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the most fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle” (see paragraph 145 of the present judgment).

3. In sum, in the Court’s view Contracting Parties should implement their UN Charter obligations in their domestic legal orders in such a manner as to avoid arbitrariness. This is confirmed by the Court’s view in the case at hand that paragraph 23 of Resolution 1483 (2003) cannot be understood as precluding any judicial scrutiny of the measures taken to implement it (see paragraph 148 of the present judgment). While I agree both with the reading of the Resolution and the standard set forth by the Court in terms of the need for judicial scrutiny at domestic level, I cannot agree that the Swiss Federal Court did not exercise such scrutiny in the circumstances of the case. In my view the Court has not, firstly, been very clear as to what the standard of scrutiny should be and in relation to what type of claim. Secondly, and as a result of the first problem, the examination of the domestic proceedings has not sufficiently appreciated what exactly was done by the Swiss authorities.

4. I also note that, even though the Court yet again puts forward the principle of the importance of European public order, this has not given rise to new approaches or obligations, at least not clearly, in the circumstances of the case (see L. Wildhaber, “The European Convention on Human Rights and International Law”, International and Comparative Law Quarterly , vol. 56, April 2007, pp. 217-32; and I. Ziemele, “How International Law Matters for the European Court of Human Rights” in L. Lopez Guerra et al. (eds), El Tribunal Europeo de Derechos Humanos. Una visión desde dentro. En homenaje al Juez Josep Casadevall , Valencia, 2015, pp. 416 ‑ 17).

5. In this regard I should point out that throughout the judgment an uncertainty persists. Thus, the Court determines that it has to ascertain “whether the applicants enjoyed the guarantees of the civil limb of Article 6 § 1 in the procedure concerning the confiscation of their assets” (paragraph 80). The Court takes the view that in this case there was a dispute over the enjoyment of the applicants’ right to property, since the implementation of the UN sanctions at domestic level affected that right in its very essence (paragraph 100). Such delimitation of the question leaves some uncertainty as to which procedure exactly is subject to scrutiny by the Court. Will it be the domestic proceedings or the procedure by which the applicants were included in the UN list compiled on the basis of Resolution 1483 (2003)? This question lingers over the judgment till its very last paragraph.

6. Subsequently, the Court explains the aspect of Article 6 § 1 against which it examines the facts. The Court seeks to establish whether the applicants were granted access to a court (see paragraph 126). More precisely, the Court states that it does not have to assess the essence of the substantive rights or the compatibility of the measures with the Convention. “The Court’s remit here is confined to examining whether or not the applicants enjoyed the guarantees of Article 6 § 1 under its civil head, in other words whether appropriate judicial supervision was available to them ...” (paragraph 143). It appears that the confiscation as such is not part of the case, this approach being compatible with the fact that the applicants did not pursue a property claim in domestic proceedings. Like the Federal Court, which focused on the issue of safeguards at domestic level, the Court too identifies this, in principle, as the subject matter under Article 6.

7. However, already in paragraph 131 the Court observes that the Swiss Federal Court refused to examine the applicants’ allegations concerning the compatibility of the procedure followed for the confiscation of their assets with the guarantees of Article 6 § 1. Here again, it is unclear which procedure the Court has in mind. At the same time, the Court accepts that the Federal Court set out very detailed reasons in its judgments. But the Court insists that the Federal Court did not examine the merits of the case. It characterises the judgments of the Federal Court as confining itself to verifying that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets concerned belonged to them (see paragraph 29). This approach in the judgment, albeit a little circular, seems to suggest that in the Court’s view the very detailed reasoning of the domestic courts in this case is not necessarily Article 6 compliant. It is the substance of the reasoning that the Court is interested in. This suggests that in the Court’s view the reasoning could be arbitrary (see point 3 above) and the Court under Article 6 may look at the quality or substance of the reasoning in domestic proceedings. In view of the Court’s case-law, also referred to in paragraphs 127 to 128, such a broad reading of Article 6 is not obvious and especially if confronted with the principle of subsidiarity and the fourth-instance doctrine. Therefore it was very important to determine and explain the standard of reasoning required in cases concerning UN sanctions.

8. Towards the end of the judgment, where the Court points out what the Federal Court did not achieve, a clearer idea emerges as to the scope of examination of the UN sanctions that the Court considers necessary and appropriate under Article 6. The Court states (paragraph 151) as follows:

“The applicants should, on the contrary, have been afforded at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, in order to show that their inclusion on the impugned lists had been arbitrary. That was not the case, however. The fact that, unlike the situation in Nada (cited above, § 187), the applicants in the present case did not submit, either in the Swiss Federal Court or in this Court, any precise argument to show that they should not have been included on the list drawn up by the Sanctions Committee makes no difference to this analysis, since no such omissions on their part were relied on by the Swiss authorities in refusing to examine their complaints. ...”

At the same time, the Court accepts that the Federal Court was unable to rule on the merits or appropriateness of the measures entailed by the listing of the applicants (see paragraph 150). I do not share the view that the applicants could not submit evidence and arguments to the domestic courts as they would have wanted to. I also have great difficulty in seeing how the very detailed reasoning of the Federal Court could be regarded as arbitrary in terms of Article 6.

9. The Swiss Federal Court addressed all the arguments that the applicants had raised. In essence the applicants’ claim concerned the absence of procedural safeguards at UN level when their inclusion on the list by the Sanctions Committee took place. It is this claim that they submitted for examination in the Swiss domestic proceedings and not the issue of whether or not they were linked to the Saddam Hussein regime or that the manner in which Switzerland had transposed the obligations arising from Resolution 1483 (2003) was contrary to human rights. At the same time, the Federal Court in fact responded to all the aspects of the case (see points 9 and 10 of the domestic judgments, paragraph 29 of the present judgment). It looked at the mandate of Sanctions Committee 1518 and concluded that it was detailed and left no room for interpretation. The list drawn up by Sanctions Committee 1518 is not indicative. In other words, there is no room for Switzerland itself to identify individuals, groups and entities in implementing measures against the former Iraqi regime’s officials, unlike the implementation of other UN Security Council resolutions. Likewise Resolution 1483 (2003) requires the immediate transfer of the frozen assets to the Development Fund for Iraq. It is important to note that Resolution 1483 (2003) superseded Resolution 661 (1990), which had been adopted as part of the international measures to counter the Iraqi invasion of Kuwait, the first international joint action to address unlawful use of force between States after the end of the Cold War. In other words, the overall context of the measures is different and the UN obligations have been differently drafted.

10. In the domestic case of Ahmed and others v. HM Treasury , to which the Court refers in support of its position, the issue at stake was the measures adopted in the United Kingdom to implement UN Security Council anti-terrorism resolutions. This and the other domestic decision referred to in the present judgment do not answer the question whether Article 6, as a minimum human rights standard for Europe, imposes an obligation to conduct domestic judicial proceedings of a particular content concerning the procedure by which persons are included on the list by the Sanctions Committee.

11. The Federal Court responded to the main complaint in dispute (see point 10 of its judgment), namely that the Swiss authorities had accepted the confiscation of the applicants’ assets solely on the basis that their names appeared on the UN list compiled pursuant to Resolution 1483 (2003) without remedying the breach of their procedural rights. The Federal Court explained why the Swiss authorities could not scrutinise the validity of Security Council decisions unless they violated jus cogens norms, and it had already explained that this was not the case. However, it also pointed out that it had the freedom to choose how it transposed UN obligations into domestic law. The facts show that all that could have been done at domestic level was available to the applicants. The confiscation proceedings were suspended while the applicants sought to have the matter re-examined by the Sanctions Committee. They were resumed only upon express application. The applicants had full access to the file and could express themselves before the relevant authority. They were also entitled to lodge an administrative appeal, and they did so. The Federal Court examined all the arguments in detail and responded that Switzerland had no power to delete the applicants’ names from the list drawn up by the Sanctions Committee. They also agreed that the procedure by which the applicants had been included on the list was deficient, as several domestic courts around the world have also pointed out.

12. I would like to contrast the Federal Court’s judgment with the domestic judgments under scrutiny in X v. Latvia ([GC], no. 27853/09, ECHR 2013), where the applicant had submitted arguments and evidence to the domestic courts but the latter had not examined them, considering that their obligations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction prevented such examination in the abduction proceedings. In that case, the difference between the majority and the minority in the Court concerned procedural obligations under Article 8, in particular the role of the domestic courts in child abduction cases, when confronted with different arguments and evidence. In a case concerning the best interests of the child, it was thus not easy for the Court to arrive at a conclusion as to what scrutiny it should apply to domestic courts’ reasoning.

13. In the case at hand, no evidence that would in any manner indicate that the first applicant was not who he was thought to be had been submitted to the courts. It is in this context that it remains unclear whether the Court considers that the Swiss courts ought to have examined of their own motion the issue of his participation in the Hussein regime and, if so, on what principles of the Convention that should have been based (compare, on ex officio obligations in asylum cases, F.G. v. Sweden [GC], no. 43611/11, 23 March 2016). This is not a line that the Court has pursued either.

14. Ultimately, I find that paragraph 153 leaves the question open as to what is expected under Article 6 from the States as far as their domestic proceedings implementing UN Security Council sanctions are concerned. The observation that the Court makes is rather obvious but it is not clear how that is linked to the obligation to exercise proper judicial scrutiny in respect of various claims that may arise within the sanctions context, nor is it clear how the domestic courts could decide on the procedures in the United Nations and what would happen as regards the execution of such judgments. On this point I join Judge Nuβberger in her dissenting opinion.

15. It might seem that the Court has further strengthened the protection of individual rights. For my part, I place this judgment within the framework of deconstructivist thinking. The European Convention has not yet consolidated a constitutional framework for Europe which could be the context for the development of a more demanding human rights standard, if that is what the Court had in mind. For the time being, the Convention is part of an international legal system, something that the Court has itself repeated. If the effect of this judgment is such that it provides a precedent for all domestic courts of the world to scrutinise the obligations imposed on States by the Security Council, that would be the beginning of the end for some elements of global governance emerging within the framework of the United Nations. I believe that it would have been more constructive and in line with the principles of the Convention to indeed scrutinise, on its terms, what the Federal Court said. I can agree that the European Court of Human Rights should engage in the process of improving decision-making in the area of UN Security Council sanctions. This was done in Nada v. Switzerland ([GC], no. 10593/08, ECHR 2012) with correct messages. I do not see how the message of the present judgment would help in that process.