CONCURRING OPINION OF JUDGE ROZAKIS JOINED BY JUDGES SPIELMANN AND BERRO-LEFÈVRE

I fully share the decisions of the Court under all heads, and have voted accordingly. There is nevertheless a point on which I wish to depart from the reasoning of my colleagues. It is a matter which does not affect the overall approach or the way that I have voted. And it consists of the following.

The applicant complained that the measure by which he was prohibited from entering or passing through Switzerland had breached his right to respect for his private life, including his professional life and his family life (see paragraph 149 of the judgment). In support of his contention, he invoked a number of instances showing that his private and family life had been affected. Among them he claimed that the addition of his name to the list annexed to the Taliban Ordinance had impugned his honour and reputation, and he thus relied for all these complaints on Article 8 of the Convention.

The Court, while it examined in detail all the particular aspects of his complaints, when dealing both with the admissibility and with the merits of the case, preferred not to raise at all the issue of his honour and reputation. In its concluding paragraph (see paragraph 199) it simply refers to the honour and reputation complaint by “side-stepping” it, using the well-known formula that there is no need to examine this complaint separately.

Here, then, lies my difference of approach. The applicant’s complaint concerning his honour and reputation is not a distinct complaint which is independent from all the other aspects of his allegation of a violation of Article 8 of the Convention. It is one of the constitutive parts of his main complaint that his private and family life was affected by the Swiss authorities’ conduct. It is well known – and undoubtedly the applicant was relying on this – that honour and reputation have been considered by the Court as an element of private life worthy of particular protection under Article 8. By discarding this particular aspect of an otherwise homogeneous and comprehensive complaint, the Court has given the wrong impression that honour and reputation should be examined separately – if at all – and that they do not necessarily belong to the hard core of the constitutive parts of private life.

For these reasons I would like to express my disagreement with the way that paragraph 199 is drafted and the failure by the Court to take on board the issue of honour and reputation. After all, the reasoning required to encompass that particular aspect as well would not have differed radically from that adopted by the Court in its overall analysis of Article 8, leading to the finding of a violation.

CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

1. I share the Court’s opinion that in the present case there has been a violation of Article 8 of the Convention. I am not, however, convinced by the reasoning through which it reached that conclusion.

I

2. The Court’s entire line of argument is based on the statement that, in implementing the Security Council resolutions, the respondent State “enjoyed some latitude, which was admittedly limited but nevertheless real” (see paragraph 180 of the judgment). To support that statement it gives the following reasons (see paragraphs 175-79).

3. The Court begins by noting that the respondent State’s latitude derives from the very wording of those resolutions. Paragraph 2(b) of Resolution 1390 (2002) thus provides that the prohibition does not apply “where entry or transit is necessary for the fulfilment of a judicial process ...”. The Court infers from this that the adjective “necessary” allows the authorities a certain latitude and is “to be construed on a case-by-case basis” (see paragraph 177). Whilst that is certainly true, the Court appears to overlook the fact that the wording here concerns an exception to the general rule set out in that same provision, far more than being an acknowledgment of any room for manoeuvre that the domestic authorities may have had in applying the latter. Moreover, apart from the case of judicial proceedings, this provision grants such latitude to the Sanctions Committee, but not to the States.

4. The Court further relies on the expression “where appropriate” in paragraph 8 of Resolution 1390 (2002) to assert that the wording also had the effect of “affording the national authorities a certain flexibility in the mode of implementation of the Resolution” (see paragraph 178). In my view, however, it misconstrues that provision of Resolution 1390. The expression “where appropriate” in fact relates to the words immediately before it, namely “legislative enactments or administrative measures”. This simply means that, depending on the legal order of the various States, and in the particular circumstances, the State will either have to make legislative enactments or to take administrative measures. No conclusion can thus be drawn from this about the latitude afforded to States in the implementation of the Resolution.

5. The Court’s last argument concerns the motion by which the Foreign Policy Commission of the Swiss National Council requested the Federal Council to inform the United Nations Security Council that it would no longer unconditionally be applying the sanctions prescribed against individuals under the counterterrorism resolutions. In adopting that motion, it is said, the Federal Parliament was expressing “its intention to allow a certain discretion in the application of the Security Council’s counterterrorism resolutions” (see paragraph 179). Whilst that is certainly true, no inferences can be drawn from this about the latitude afforded to Switzerland in the present case, as the motion was adopted on 1 March 2010 (see paragraph 63), that is to say after the applicant’s name had been deleted from the list, on 23 September 2009 (see paragraph 62).

6. On the strength of its finding that the respondent State enjoyed a certain latitude in the implementation of the United Nations resolutions, the Court then examined whether, in the present case, the interference with the rights protected by Article 8 respected the principle of proportionality. It answered that question in the negative, finding in particular that “the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health”. Accordingly, in the Court’s view, the interference with the applicant’s right to respect for his private and family life “was not necessary in a democratic society”.

7. Some of the arguments used by the Court to reach this conclusion do not, however, appear convincing. Thus, can Switzerland seriously be criticised – bearing in mind that the applicant was not a Swiss national – for failing to provide him with assistance in seeking from the Sanctions Committee a broader exemption from the sanctions affecting him because of his specific situation, when he had not even requested such assistance (see paragraph 193)? Or for failing to encourage Italy to take steps to obtain the deletion of the applicant’s name from the Sanctions Committee’s list, when it was for the State of citizenship or residence of the person concerned to initiate the delisting procedure (see paragraph 194)?

II

8. The opinion that Switzerland had not been afforded any room for manoeuvre was, moreover, also expressed by the Federal Court, which found as follows in this connection (see paragraph 50):

“8.1 ... The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation ...

The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list.”

Further on, the Federal Court examined whether the travel ban under Article 4(a) of the Federal Taliban Ordinance went beyond the sanctions introduced by the Security Council resolutions and, if so, whether the Swiss authorities had a certain latitude in this area. It answered in the negative (see paragraph 52):

“10.2 Article 4a § 2 of the ... Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation ...

The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met.” (Emphasis added)

9. The French and United Kingdom Governments, intervening as third parties, shared this opinion and stated that the Swiss authorities had no latitude in the implementation of the Security Council resolutions (see paragraph 175). In the submission of the United Kingdom Government, in particular, the Security Council had used “clear and explicit language” to impose specific measures on States (see paragraph 111).

10. In conclusion, taking into account the very clear and mandatory terms of the Security Council resolutions in question, obliging States to apply them strictly and in full, without consideration of the rights and obligations arising from any other international conventions that they had ratified, and since the sanctions were described in a detailed manner, with the names of the persons concerned appearing on exhaustive lists, it is difficult, in my opinion, to sustain the argument that Switzerland had any room for manoeuvre in the present case. The situation here was undeniably one of mandatory power and not one of discretionary power. I therefore believe that the Court erred in its approach. In my view, it should have followed that of the Federal Court, but to arrive at the opposite conclusion.

III

11. The Federal Court, as it could not infer from the wording of the United Nations resolutions which it had to apply that there was any room for manoeuvre enabling it to interpret them consistently with the applicant’s fundamental rights, had no choice but to settle the question before it on the basis of the hierarchy of norms principle. It gave priority to Switzerland’s obligations under the resolutions in question over those imposed on it by the Convention and by the International Covenant on Civil and Political Rights. Was that decision correct or can the Swiss Supreme Court be criticised for blindly enforcing, without calling into question, the obligations imposed on Switzerland by the Security Council resolutions?

12. The Court did not address this question. In its view, the conclusion that it had reached dispensed it from “determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. ... [T]he important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent” (see paragraph 197). I have great difficulty sharing this view, for the following reasons.

13. The Security Council was well aware of the conflict that would inevitably arise between its own resolutions and the obligations that certain States had assumed in ratifying international human rights treaties. For each of the resolutions that it adopted, it thus expressly stipulated that States were obliged to comply with them “notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement ... prior to the date of coming into force of the measures imposed” (Resolution 1267 (1999), paragraph 7 and Resolution 1333 (2000), paragraph 17, as quoted in paragraphs 70 and 71 of the judgment).

14. Was the Security Council entitled to act in that manner? Of course, under Article 25 of the United Nations Charter, the member States are required to accept and apply its decisions. Moreover, Article 103 of the Charter stipulates that in the event of any conflict between the obligations of United Nations members under the Charter and their obligations under any other international agreement, the Charter obligations will prevail. And according to the case-law of the International Court of Justice, that primacy is not limited to the provisions of the Charter itself but extends to all obligations arising from binding resolutions of the Security Council [2] .

15. But do those two Charter provisions actually give the Security Council carte blanche? That is far from certain. Like any other organ of the United Nations, the Security Council is itself also bound by the provisions of the Charter. And Article 25 in fine thereof stipulates that members of the world organisation are required to carry out the decisions of the Security Council “in accordance with the present Charter”. In Article 24 § 2 the Charter also provides that in discharging its duties “the Security Council shall act in accordance with the Purposes and Principles of the United Nations”. Article 1 § 3 of the Charter reveals that those purposes and principles precisely include “respect for human rights and for fundamental freedoms”. One does not need to be a genius to conclude from this that the Security Council itself must also respect human rights, even when acting in its peace-keeping role. This view indeed seems to have been confirmed by decisions recently taken by certain international bodies.

16. In its Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities judgment of 3 September 2008 (hereinafter “ Kadi ”) [3] , the Court of Justice of the European Communities (“CJEC”) readily found that it had jurisdiction to examine the lawfulness of Regulation (EC) No. 881/2002, which implemented the Security Council’s al-Qaeda and Taliban Resolutions. It went on to find that the applicants’ rights, in particular their defence rights, right to effective judicial review and their right to property, had been infringed (§ 326):

“It follows from the foregoing that the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations .” (Emphasis added.)

17. The CJEC thus set aside the two judgments under appeal, finding that the Court of First Instance had erred in law when it held that

“it followed from the principles governing the relationship between the international legal order under the United Nations and the Community legal order that the contested Regulation, since it [was] designed to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations affording no latitude in that respect, must enjoy immunity from jurisdiction so far as concern[ed] its internal lawfulness ...” (§ 327).

18. That judgment of the Luxembourg Court may be described as historic, as it made the point that respect for human rights formed the constitutional foundation of the European Union, with which it was required to ensure compliance, including when examining acts implementing Security Council resolutions [4] .

19. The Human Rights Committee, in its findings of 22 October 2008 in Sayadi and Vinck v. Belgium (see paragraph 88 of the judgment), also found that it was competent to rule on the communication addressed to it, “regardless of the source of the obligations implemented by the State party” (point 7.2), that is to say even if that source were to be found in a Security Council resolution. It therefore examined the compatibility with the Covenant of the national measures adopted to implement the relevant Security Council resolution and found that there had been a violation of some of the Covenant’s provisions.

20. This raises a question: should the Court, as guarantor of respect for human rights in Europe, not be more audacious than the European Court of Justice or the Human Rights Committee when it comes to addressing and settling the sensitive issue of conflict of norms that underlies the present case? After all, is the Court not the “ultimate bulwark against the violation of fundamental rights”? [5] I am totally aware of the fact that the Security Council resolutions as such fall outside the Court’s direct supervision, the United Nations not being a party to the Convention. That is not the case, however, for acts taken by States pursuant to those resolutions. Such acts are capable of engaging the responsibility of States under the Convention. Moreover, the fundamental principles in matters of human rights are nowadays not only enshrined in specific international instruments, but are also part of customary law, which is binding on all subjects of international law, including international organisations. [6]

IV

21. Article 103 of the Charter played a decisive role in the Federal Court’s reasoning. It was on the basis of that provision that it gave priority to the Security Council resolutions over Switzerland’s obligations under the Convention and the International Covenant on Civil and Political Rights. It may be questioned, however, whether such an interpretation of Article 103 is not open to criticism from the standpoint of the balance that States should strike between the requirements of collective security and respect for fundamental rights, since it means that rights will be sacrificed for the sake of security [7] . In its Kadi judgment, the CJEC certainly implied that Security Council resolutions did not enjoy absolute priority in the hierarchy of Community norms, especially in relation to fundamental rights (see Kadi , § 293). In other words, the Kadi judgment is unquestionably the result of a balance between the requirement of the fight against terrorism on the one hand and respect for human rights on the other.

22. Article 103 of the Charter provides for the pre-eminence of that instrument over any other international agreement. As I have already noted, according to the International Court of Justice this primacy is not confined to the Charter provisions alone but extends to all binding provisions of Security Council resolutions. Nevertheless, according to the very wording of Article 103 of the Charter, this provision applies exclusively to “the obligations ... under the present Charter”. Would it not then be appropriate to draw a distinction between the Charter itself, as the primary legislation of the United Nations, and the Security Council resolutions, which, although binding (Article 25), may be regarded more as secondary or subordinate United Nations legislation? Their superiority over “any other international agreement” could then be seen in relative terms, in the light of Article 103 of the Charter, particularly where the agreement in question is an international human rights treaty [8] .

23. Such an approach would be all the more justified by the consideration that, as the Parliamentary Assembly Resolution of 23 January 2008 [9] rightly stated, despite some recent improvements, the basic substantive and procedural standards applied by the Security Council “in no way fulfil the minimum standards ... and violate the fundamental principles of human rights and the rule of law”. The system in place in the United Nations at the material time was thus far from offering an equivalent protection to that guaranteed by the Convention, with the result that it does not seem possible to rely here on a presumption of Convention compliance on the part of the Security Council. The Bosphorus case-law is not yet applicable to the law of the United Nations [10] .

24. This is all the more true as the situation in the present case concerned not general sanctions but targeted sanctions, which as such had a direct impact on the applicant’s fundamental rights, in relation both to the manner of his inclusion on the Sanctions Committee’s list and to the lack of remedies [11] . As one commentator has rightly stated “for as long as the United Nations has not introduced a human rights protection mechanism ... comparable or equivalent to that introduced in the member States and at European level, the domestic and European courts remain competent to verify that acts implementing Security Council decisions respect fundamental rights” [12] . Accordingly, any insufficient, or even deficient, protection of those rights in the context of the United Nations system, where it has not been compensated for by a review of such respect at domestic level, should lead the Court to find a violation of the Convention [13] .

25. It cannot be claimed nowadays that the human rights obligations of States vanish in the event that, instead of acting individually, they decide to cooperate by entrusting certain powers to international organisations that they themselves have set up. In its Waite and Kennedy v. Germany judgment of 18 February 1999, the Court indeed asserted that “where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights”. Also that it “would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution” [14] .

26. International organisations themselves are thus also bound by international human rights norms, since respect for such rights “far from hindering the fight against terrorism, constitutes a weapon against extremist ideologies that prosper by negating them” [15] .

V

27. One last point: in paragraph 199 of its judgment, the Court states that “[h]aving regard to that conclusion [the finding of a violation of Article 8 on account of the restriction of the applicant’s freedom of movement], and notwithstanding that the applicant’s allegation that the addition of his name to the list annexed to the Taliban Ordinance also impugned his honour and reputation constitutes a separate complaint, ... it does not need to examine that complaint separately”.

28. The merits of that conclusion are open to question. The applicant certainly raised two totally separate complaints before the Court (see paragraphs 156 and 157), even though they both fell within the scope of Article 8 in terms of the protection of private life. However, whilst the first complaint concerned physical liberty to move around freely, the second concerned damage to the applicant’s moral integrity, resulting from the very fact that his name appeared on the Sanctions Committee’s list. In addition, whilst the first complaint was intrinsically linked to the highly specific geographical situation of the Campione d’Italia enclave, with its very confined territory, the second was much more general in effect. That aspect of his application was certainly, in the applicant’s view, equally as important – if not more so – as the restrictions that had been imposed on his freedom of movement.

29. For all these reasons, the applicant’s second complaint, in my view, warranted a separate examination; especially as I fail to see how the Court could have, in respect of this complaint, used the same reasoning as that adopted for the first complaint, which was based solely on the latitude afforded to the respondent State in implementing the Security Council resolutions, or could then have found a violation of Article 8 for failure to respect the proportionality principle. For the purposes of examining whether a person’s name should be included on the Sanctions Committee’s list, I certainly find it difficult to imagine a balancing of the interests at stake by the respondent State.

[1] . Text in French as per the original.

[2] . Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) , Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, § 42.

[3] . See paragraph 83 of the present judgment.

[4] . See Hanspeter Mock and Alvaro Borghi, “Vers une sortie du labyrinthe des listes antiterroristes de l’ONU”, in Les droits de l’homme en évolution : mélanges en l’honneur du professeur Petros J. Pararas , Athens-Brussels, 2009, p. 406.

[5] . See Josiane Auvret-Finck, “Le contrôle des décisions du Conseil de sécurité par la Cour européenne des droits de l’homme”, in Sanctions ciblées et protections juridictionnelles des droits fondamentaux dans l’Union européenne ; équilibres et déséquilibres de la balance , Constance Grewe et al. (eds.), Brussels, 2010, p. 214.

[6] . See, to this effect, Luigi Condorelli, “Conclusions”, in G.M. Palmieri (ed.), Les évolutions de la protection juridictionnelle des fonctionnaires internationaux et européens – développements récents , Brussels, 2012, p. 359.

[7] . See Pasquale De Sena, “Le Conseil de sécurité et le contrôle du juge”, in Sanctions ciblées et protections juridictionnelles des droits fondamentaux dans l’Union européenne (supra), p. 44.

[8] . See, to this effect, Mock/Borghi, supra, p. 42

[9] . Resolution 1597 (2008), United Nations Security Council and European Union blacklists.

[10] . See Josiane Auvret-Finck, supra, p. 235.

[11] . See the report by Dick Marty, Doc. 11454, United Nations Security Council and European Union blacklists.

[12] . Constance Grewe, “Les exigences de la protection des droits fondamentaux”, in Sanctions ciblées et protections juridictionnelles des droits fondamentaux dans l’Union européenne (supra).

[13] . See Josiane Auvret-Fink, supra , p. 241.

[14] . See Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999 ‑ I. See also, to this effect, Luigi Condorelli, “Conclusions”, in La soumission des organisations internationales aux normes internationales relatives aux droits de l’homme , Paris, Pédone, 2009, p. 132.

[15] . See Josiane Auvret-Finck, supra, p. 243.