JOINT CONCURRING OPINION OF JUDGES BRATZA, NICOLAOU AND YUDKIVSKA

1. While we have joined in the finding of a violation of Article 8 of the Convention in the present case, we cannot fully share the reasoning in the judgment leading to such a finding. In particular, we entertain considerable doubts about the conclusion that Switzerland “enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council” (see paragraph 180 of the judgment). This conclusion is not in our view borne out by the terms of the resolutions themselves or by the provisions of the United Nations Charter under which they were issued. Moreover, despite the attention devoted to the point in the judgment, it does not ultimately appear to have played a central role in the Court’s conclusion that Article 8 was violated, a conclusion which is founded less on Switzerland’s failure to exploit any latitude afforded to it in the relevant resolutions than on its failure to take any, or any sufficient, measures to safeguard the applicant’s Convention rights within the constraints set by those resolutions.

2. As is correctly pointed out in the judgment, Resolution 1390 (2002) expressly required States to prevent individuals whose names appeared in the list of the Sanctions Committee of the United Nations from entering or transiting through their territory. In this respect, the case differs from that examined by the Court in Al-Jedda v. the United Kingdom ([GC], no. 27021/08, ECHR 2011), where the Court held that the wording of the Resolution in issue did not specifically mention internment without trial and that, in the absence of clear and explicit language to the contrary, there was a presumption that the Security Council did not intend to impose any obligation on member States to breach fundamental principles of human rights. In the present case, clear and specific language was used in the relevant Resolution, as well as in paragraph 7 of Resolution 1267 (1999) in which the Security Council was even more explicit, setting aside any other international obligations that might be incompatible with the Resolution in question.

3. True it is, as is pointed out in the judgment, that at the time when it adopted the Taliban Ordinance of 2 October 2000 and when it added Article 4 (a) of the Ordinance to give effect to Resolution 1390 (2002), Switzerland was not a member of the United Nations but was already bound by the European Convention. However this is, we consider, of little significance. As is noted in the judgment, the relevant resolutions were addressed to “all States” and not only to the member States of the United Nations. It is also clear that the requirement to prevent the entry into or transit through Swiss territory in any event applied to Switzerland from the date on which it became a member of the United Nations in September 2002. Not only was Switzerland obliged to add the applicant to the list of proscribed persons at the latest from that date but we note that, in October 2003, following criticism by the Monitoring Group established under Resolution 1363 (2001), Switzerland was obliged to revoke the applicant’s special border-crossing permit which had enabled him to travel relatively freely between Switzerland and Italy (see paragraph 25 of the judgment).

4. The finding in the judgment that a latitude was left to States is essentially based on an argument that the United Nations Charter does not impose a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII, the Charter leaving in principle to the member States of the United Nations a free choice among the various possible models for transposing those resolutions into their domestic legal order (see paragraph 176 of the judgment).

5. We readily accept that different means may be open to States by which to give effect to obligations imposed on them by the relevant Security Council resolutions. But the obligation imposed on States under Resolution 1390 (2002) was a binding one which, subject to the exceptions or exemptions expressly contained in the Resolution itself, allowed no flexibility or discretion to the States as to whether to give full effect to the sanctions imposed but required them to prohibit the entry into or transit through their territories of all persons included in the Sanctions Committee list. The only relevant exception was that contained in paragraph 2 (b) of the Resolution which disapplied the provisions where entry or transit was necessary for the fulfilment of a judicial process.

6. We similarly find no support for the view in paragraph 178 of the judgment that latitude was afforded to States by paragraph 8 of the Resolution itself, in which States were urged to take immediate steps to enforce and strengthen “through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic law or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution”. Certainly, as noted in the judgment, the words “where appropriate” contemplated that the authorities would have a choice between legislative and administrative measures and were thereby granted a certain flexibility in the means by which the measures were enforced and strengthened. But those words certainly do not suggest that any latitude was granted so far as concerned the obligations on States to give full effect to the terms of paragraph 2 of the Resolution.

7. We are also unpersuaded by the reliance in paragraph 179 of the judgment on the motion of 1 March 2010 by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that, from the end of 2010, it would no longer in certain cases apply the sanctions prescribed against individuals under the counterterrorism resolutions. Doubtless, the Swiss Parliament by adopting that motion may have been “expressing its intention to allow a certain discretion in the application of the ... counterterrorism resolutions”. However, the fact that several months after the applicant’s name had been deleted from the list the Parliament unilaterally asserted a discretion to refuse to comply unconditionally with the terms of the Resolution is one thing; whether any such discretion or latitude was afforded to Switzerland under the Resolution itself is quite another. In our view, it clearly was not.

8. Like the Swiss Federal Court, we accordingly consider that States enjoyed no latitude in their obligation to implement the sanctions imposed by the relevant Security Council regulations and that Switzerland was debarred from deciding of its own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee list.

9. However, this does not resolve the issue under Article 8 of the Convention. Although constrained to act strictly in accordance with the provisions of Resolution 1390 (2002) notwithstanding any rights or obligations conferred under the Convention, States were not absolved from the obligations to take such steps as were open to them to mitigate the effects of the measures in so far as they had an impact on the private or family life of the individuals concerned.

10. The situation of the present applicant was, if not unique, highly exceptional and the impact of the Taliban Ordinance on his private and family life was indisputably serious. The impugned measures constituted, as the Federal Court expressly found, a significant restriction on the applicant’s freedom on account of the location of Campione d’Italia, a small enclave surrounded by the Swiss Canton of Ticino where he had established his home since 1970. He was prevented, at least from October 2003, not only from entering Switzerland but from leaving Campione d’Italia at all, even to travel to other parts of Italy, the country of which he was a national. The prohibition made it exceptionally difficult for him to maintain contact with others, including members of his own family, living outside the enclave. In these circumstances, the Swiss authorities were, as the Federal Court put it, “obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions”. They were also, in our view, required to take all such other steps as were reasonably open to them to bring about a change in the regime so as to reduce so far as possible its serious impact on the private and family life of the applicant.

11. Switzerland was not able of its own motion and consistently with the relevant resolutions, to delete the applicant’s name from Annex 2 to the Taliban Ordinance, the Sanctions Committee alone being responsible for the deletion of persons or entities. Nor, since the applicant’s name was not added to the list on the initiative of Switzerland and since it was neither the State of the applicant’s citizenship nor that of his residence, did Switzerland have any formal competence under the resolutions to take action to have the applicant’s name deleted by the Sanctions Committee. Nevertheless, in common with the other members of the Grand Chamber, we consider that the Swiss authorities did not sufficiently take into account the specific circumstances of the applicant’s case, including the considerable duration of the measures imposed, and the applicant’s nationality, age and health. Nor, in our view, did those authorities take all reasonable steps open to them to seek to mitigate the effect of the sanctions regime by the grant of requests for exemption for medical reasons or in connection with judicial proceedings, or to bring about a change in the sanctions regime against the applicant so as to secure so far as possible his Convention rights.

12. Of the measures open to the authorities which are referred to in the judgment, we attach special importance to the failure of the authorities to inform the Sanctions Committee until 2 September 2009 of the conclusions of the investigation against the applicant, which had been discontinued well over four years before, on 31 May 2005. The fact that the investigation against the applicant had been discontinued was of obvious importance to the prospect of the removal of the sanctions against him. In this regard, we note that the applicant’s name was in fact deleted from the list on 23 September 2009, shortly after Switzerland sent to the Sanctions Committee a copy of the letter from the Federal Prosecutor’s Office confirming that the judicial police investigation against the applicant had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban. The failure to communicate this information was the subject of specific criticism by the Federal Court which, while noting that by the date of its judgment in November 2007 the applicant was able to apply himself to initiate the delisting procedure, emphasised that he continued to rely on the support of Switzerland, since this was the only country to have conducted a comprehensive preliminary investigation into the applicant’s activities. We fully share the view of the Federal Court that, while Switzerland could not itself proceed with deletion, it could at the very least have transmitted the results of the investigation to the Sanctions Committee and have actively supported the delisting of the applicant. With the benefit of the results of its own investigation, it could also have encouraged Italy, as the State of nationality and residence of the applicant, to take steps earlier than July 2008 to request the deletion of the applicant’s name. Such measures were not bound to have met with success. There remained, however, a real prospect that they would have resulted in the deletion of the applicant’s name and the restoration of his Article 8 rights at a much earlier stage than eventually occurred.