TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Vous n'enterrinerez pas une confiscation intervenue hors de toutes les garanties de l'article 6, certainement pas pour les motifs invoqués, l'impossibilité de contester la confiscation pendant des années est à peine concevable dans une société démocratique, c'est le paragraphe 131.
AP1 (Applicant): Monsieur le Président, j'en ai terminé, je sollicite respectueusement que vous passiez la parole à mon co-conseil, le professeur Andrea Bianchi, et je vous remercie pour votre attention.
Dean Spielmann (JudgeP): Merci, maître Michel.
Dean Spielmann (JudgeP): La parole est à M. le professeur Andrea Bianchi.
Dean Spielmann (JudgeP): M. le professeur, vous avez la parole.
AP2 (Applicant): Mr. President, distinguished members
AP2 (Applicant): of the European Court of Human Rights, I feel privileged to be able to address the court on a case of such importance.
AP2 (Applicant): The applicants, as the chamber conclusively ascertained, had the very essence of the right of access to a court impaired, as they were prevented from effectively challenging the confiscation of their assets before the Swiss courts.
AP2 (Applicant): This is really not controversial, as on the facts of the case, even the respondent state, at least implicitly, acknowledges in its written submissions a violation of Article VI, Paragraph 1.
AP2 (Applicant): A difference of opinion exists, however, as regards the limits that could justify restrictions on the exercise of Article VI.
AP2 (Applicant): And in this respect, a few remarks are in order.
AP2 (Applicant): Although, in principle, the measures in question might be considered as pursuing a legitimate aim, namely the maintenance of international peace and security, at closer scrutiny, it is indeed difficult to maintain that the confiscation of the applicant's assets does pursue such an aim.
AP2 (Applicant): In our individual request, we took issue with the contention that the contested measures could be regarded as being concerned with the legitimate aim of maintaining international peace and security.
AP2 (Applicant): We wrote then, and I quote, that one should not have the temerity of arguing that we are now before a concrete and imminent threat to international peace and security, end quote.
AP2 (Applicant): A few years later, also the chamber aptly recognized that in the case at hand, and unlike the situation in NADA, it was not a question of responding to an imminent threat of terrorism.
AP2 (Applicant): Perhaps at the time of its adoption, Resolution 1483 could be seen as a resolution taken up with the maintenance of international peace and security when the latter was threatened by the previous Iraqi regime.
AP2 (Applicant): Maybe at that time, the proportionality of temporary measures of vassal freezing might have been conceivable.
AP2 (Applicant): But now, so many years after the demise of that regime, how could one justify a confiscation of the assets of an individual who's never been served by any tribunal anywhere, and the denial to that very individual of his right of access to a court to challenge that confiscation?
AP2 (Applicant): How could this ever be justified?
AP2 (Applicant): But little matters if one is to tackle the issue in the context of the identification of a legitimate aim, as we had done at the time, or rather from the perspective of the necessity and proportionality test, as the chamber did when it held that there was no reasonable relationship or proportionality between the means employed and the aim sought to be realized.
AP2 (Applicant): To assert that these measures are legitimate under the law of the European Convention simply does not withstand scrutiny.
AP2 (Applicant): Concern has been voiced that if the court were to uphold the unlawful character of the restrictions imposed by the respondents date on the applicant's right of access to a court, this would be tantamount to reviewing the legality of Security Council resolutions.
AP2 (Applicant): No, that's not true.
AP2 (Applicant): The court is not called upon to exercise its scrutiny over the Security Council's measures.
AP2 (Applicant): Its mandate consists of supervising the proper implementation of the guarantees of the convention in respect of the high contracting parties' acts and emissions.
AP2 (Applicant): Judicial review is being exercised under domestic measures, legislative, administrative, and judicial, taken by the respondent state to implement resolution 1483.
AP2 (Applicant): The chamber did precisely that and did not abdicate its mission.
AP2 (Applicant): It made sure, as the court's case law and jurisprudence clearly require, that the guarantees of the human rights enshrined in the convention are not theoretical and illusory, but practical and effective.
AP2 (Applicant): All the more so as regards the right of access to a court, which is part and parcel of the right of fair trial, that holds, in the very words of the case law of the court, a prominent place in the democratic society.
AP2 (Applicant): It is indeed difficult not to concur with the chamber's conclusion, and I quote, that the applicant's inability to challenge the confiscation measure for several years is difficult to accept in a democratic society, unquote.
AP2 (Applicant): This conclusion, in support of which the chamber provided numerous and diverse judicial authorities, is hardly contestable and leads to the ineluctable conclusion that the respondent state has violated Article VI, paragraph 1 of the European Convention.
AP2 (Applicant): Let me now turn to the second prong of my argument.
AP2 (Applicant): let's not hide behind the technicalities.
AP2 (Applicant): Whatever perspective you take on the matter, whether you want to look at it as a question of jurisdiction, ratione, and persona, or as the chamber quite reasonably did, as a preliminary issue pertaining to the merit of the case, the fundamental question remains that of establishing whether the Convention's human rights guarantees can coexist with the obligations stemming from the Security Council Chapter 7 resolutions.
AP2 (Applicant): A clash between conflicting obligations and irreconcilable values, that's how the respondent state and the two intervening parties want us to look at the matter.
AP2 (Applicant): They obsessively repeat that Article 103 of the Charter must prevail.
AP2 (Applicant): Theirs is a world of Newtonian mechanics, where deterministic laws apply, where one proviso in one treaty would trump any other international rule that stands in the way.
AP2 (Applicant): Incidentally, this is wrong as a matter of law.
AP2 (Applicant): Central to their claim is that the respondent state finds itself facing a dilemma.
AP2 (Applicant): How not to violate the Convention in order to meet the requirements of a conflicting Security Council's binding obligation?
AP2 (Applicant): Our claim is different.
AP2 (Applicant): Our claim is that there is no dilemma, as there is no conflict.
AP2 (Applicant): We do believe that these different obligations can be reconciled within the framework of the European Convention system, as well as under international law.
AP2 (Applicant): To link together the two dimensions, the European Convention system and international law, is of paramount importance, as the Court rightly sees itself and the Convention system as part and parcel of the wider fabric of the international legal order.
AP2 (Applicant): As recently as in the Hassan case, the Court has reiterated that the Convention must not be interpreted in the backroom, but must be interpreted having recourse to Article 31.3c of the Vienna Convention
AP2 (Applicant): on the Law of Treaties.
AP2 (Applicant): Consideration of other principles and rules of international law, of which the Convention system forms part, ought to lead to an interpretation which is in harmony, your own words, not in conflict with such other principles and rules in international law.
AP2 (Applicant): The European Court of Human Rights has always been considerate of such inter-systemic needs.
AP2 (Applicant): Particularly at a time of increasing complexity, it is of fundamental importance to ensure coordination among such systems in the broader framework of international law.
AP2 (Applicant): The respondent state's position, as well as the intervening parties, are very much at odds with this, and unnecessarily so, if I may add.
AP2 (Applicant): The endorsement of their demands would undermine the tradition of balance, reasonableness, and harmonization that has long characterized the jurisprudence of the Strasbourg Court, or matters in which consideration of other rules and principles of international law were at stake.
AP2 (Applicant): Has the Court ever conceived the Convention system and international humanitarian law to be in a reconcilable conflict with each other?
AP2 (Applicant): No, never.
AP2 (Applicant): It has constantly and wisely attempted to reconcile interpretively the two branches of the law, in order not to create unnecessary conflicts, potentially unsettling imbalances.
AP2 (Applicant): And the same considerations hold truth for the case at hand.
AP2 (Applicant): The European Court itself has created an interpretive doctrine which aims precisely at ensuring consistency between the Convention system on the one hand, and the international legal system, and in particular, international organizations on the other hand.
AP2 (Applicant): This doctrine is the equivalent protection doctrine.
AP2 (Applicant): The equivalent protection doctrine is the instrument that is applicable, vis-a-vis the contracting parties acting in the framework of their participation in international organizations, including the United Nations.
AP2 (Applicant): The rationale of the doctrine has been spelled out in Bosphorus, and later confirmed by Gasparini and Michaud, among others.
AP2 (Applicant): The rationale of the doctrine consists in saying, and I quote from Bosphorus, that, contracting states cannot be absolved completely from their Convention responsibility where they were simply complying with their obligations as members of an international organization, as this would be incompatible with the object and purpose of the Convention.
AP2 (Applicant): The guarantees of the Convention could be limited or excluded at will, thereby depriving it of its preemptory character and undermining the practical and effective nature of its safeguards, unquote.
AP2 (Applicant): However, in order to facilitate contracting states' participation in international organizations, and in order to ensure smooth cooperation and interaction among different legal regimes, the Court has created the presumption of equivalent protection.
AP2 (Applicant): And it has held that whenever the relevant other legal regime presents a comparable set of protections as regards human rights, it will be presumed that action taken by the European Convention contracting parties to ensure compliance with that other legal regime's obligations is justified.
AP2 (Applicant): This presumption can be rebutted, however, if, under circumstances of each particular case, the protection of the Convention's rights is manifestly deficient in the other system.
AP2 (Applicant): In describing the rationale and the content of the equivalent protection doctrine, I have extensively quoted from Bosphorus.
AP2 (Applicant): And undoubtedly, Bosphorus is the controlling precedent, contrary to what the UK and Switzerland maintain in trying to distinguish Bosphorus from the case at hand on a very flimsy basis, indeed, simply by emphasizing the relevant elements.
AP2 (Applicant): As much as I have sympathy with the technique of distinguishing cases, particularly those that happen to be embarrassingly unfavorable to one's own side, no distinction is exempt from the duty of persuasion.
AP2 (Applicant): So Bosphorus is the controlling precedent.
AP2 (Applicant): And Bosphorus specifies that the equivalent protection doctrine covers both, and I quote, the substantive guarantees offered and the mechanisms controlling their observance in a manner which can be considered at least equivalent, that is to say, not identical, but comparable to that which the Convention provides for, unquote.
AP2 (Applicant): It seems to me that a few incontrovertible consequences can be inferred from the acknowledgment of the centrality of the equivalent protection doctrine to our case.
AP2 (Applicant): First, everyone admits that the mechanisms of human rights protection provided by the Security Council in this context currently are manifestly deficient.
AP2 (Applicant): And as such, apt to rebut the presumption of consistency that the doctrine of equivalent protection relies upon.
AP2 (Applicant): Perhaps this will be different in future cases, as the court held in Bosphorus the assessment of the manifest deficiency is not final and is susceptible to review.
AP2 (Applicant): This is only temporary, as long as.
AP2 (Applicant): As long as the Security Council sanctions will not be able to provide a system of fundamental human rights protection which is at least comparable to that of the Convention, the presumption of having acted consistently with the Convention is rebutted.
AP2 (Applicant): And the wisdom of this doctrine lies in the fact that it may well work as an incentive for international organizations to introduce or to bring up to an adequate level their system of human rights protection.
AP2 (Applicant): A similar process that the one that occurred with the Solange jurisprudence or the Bumas Verfassungskrieg temporarily used to spur the development of the system of human rights protection within the European communities.
AP2 (Applicant): Here, once again, the main framework of reference is that of an international legal order whose different components are in harmony with one another and where human rights constitute shared and common values and not an ancillary or secondary goal hierarchically subordinate to the primacy of security concerns.
AP2 (Applicant): Second, the equivalent protection doctrine applies regardless of states having or not having any margin for maneuvering in the implementation of the measures.
AP2 (Applicant): It may be debatable whether Switzerland had or did not have a margin for maneuvering in implementing the relevant Security Council's resolution, and we argued it did.
AP2 (Applicant): But be that as it may, as the chamber correctly noted, the equivalent protection doctrine applies to the case even if Switzerland were left with no discretion.
AP2 (Applicant): Finally, the doctrine of equivalent protection is precisely aimed at avoiding the state parties to the convention have to face a dilemma.
AP2 (Applicant): As the court held in Michaux, the doctrine of equivalent protection is intended in particular to ensure that the state parties not faced with any such dilemma.
AP2 (Applicant): The doctrine allows reconciling and ensuring coordination between regimes, does not antagonize them.
AP2 (Applicant): The doctrine of equivalent protection is thus the instrument that the court has designed to apply in this particular context to avoid construing the two sets of obligations as conflicting with each other consistently with the case law and the jurisprudence of your court, Mr. President, distinguished members of the court.
AP2 (Applicant): Indeed, the presumption of consistency between rules belonging to different legal regimes is important in the court's jurisprudence.
AP2 (Applicant): Besides the already mentioned passage in Assange, in which the court reminded us of its jurisprudence that, and I quote, the convention must be interpreted in harmony with other rules of international law, which it forms part, unquote, the court used similar language in Al-Jadda to state, and I quote again, in the event of any ambiguity in the terms of the United Nations Security Council's resolution, the court must therefore choose the interpretation which is most in harmony with the requirements of the convention which avoids any conflict of obligations, unquote.
AP2 (Applicant): Also in Al-Jadda, the court, and I quote for the last time, said, where a number of apparently contradictory instruments are simultaneously applicable international case law and academic opinion endeavor to construe them in such a way as to coordinate their effects and avoid any opposition between them.
AP2 (Applicant): Two divergent commitments must therefore be harmonized as far as possible so that they produce effects that are full in accordance with existing law, unquote.
AP2 (Applicant): It is noteworthy that the presumption of consistency as formulated by the court in Al-Jadda has also been relied upon by domestic courts, such as the High Court of Justice and the recently decided Mohammed versus Ministry of Defense case.
AP2 (Applicant): Reliance by domestic courts on your jurisprudence, Mr. Preston, distinguished members of the court,
AP2 (Applicant): is an important indicator of the acceptance by domestic jurisdictions of your guidance as well as of their approval of the interpretive solution you provided.
AP2 (Applicant): It would be reductive, however, to limit the importance of the presumption of consistency as a tool to ensure interpretive harmony to the context of the European Convention system.
AP2 (Applicant): Also, an international law at a time of increasing complexity respects for the presumption of consistency is of greatest importance.
AP2 (Applicant): How odd to see the International Law Commission's study on fragmentation cited by the respondent states in support of conflict in Article 183.
AP2 (Applicant): To extrapolate from the study a few passages describing Article 183 as if the study could be put forward as supporting a hierarchical solution to normative conflicts is just preposterous.
AP2 (Applicant): The main message that the International Commission's study on fragmentation attempts to get across is that interpretation should take place on the basis of the principle of systemic integration.
AP2 (Applicant): That is, in a manner that avoids conflict and promotes harmonious interpretation of the different rules and principles of international law as an integrated system.
AP2 (Applicant): The study clearly states in paragraph 37 that in international law there is a strong presumption against normative conflict.
AP2 (Applicant): Curiously, the architecture of the argument of both the respondent states and the intervening third party seems to have been partly shaped by the decision of the European Court of First Instance, as it was then called, in the first Cali case in 2005.
AP2 (Applicant): Besides having been embarrassingly overruled by the European Court of Justice for its having neglected no less than Article 6 of the Treaty on the European Union, everything that has happened ever since that judgment has shown how dangerous for the stability of the system to follow that kind of rigid and hierarchically structured reasoning would have been.
AP2 (Applicant): But as I said earlier, respondent states and intervening third parties have a vision of the international legal system which is similar to that of Newtonian mechanics.
AP2 (Applicant): Theirs is a world where power is sovereign and where the hubris of power is doomed to prevail.
AP2 (Applicant): Theirs is a world of states, false states, made by states, where the individual has hardly any place.
AP2 (Applicant): The individual is conspicuously absent from the respondent states and the intervening parties written submission.
AP2 (Applicant): The individual is, I suppose, an inevitable casualty, some sort of collateral damage to the imperatives of international peace and security.
AP2 (Applicant): Intervening parties' statements barely engage with the chambers of the applicants' arguments.
AP2 (Applicant): They simply state, repeat, state again, and reiterate their state-centric vision, whereby the primacy of the collective security system, firmly in the hands of the five permanent members, should prevail.
AP2 (Applicant): Human rights have been created and are still there precisely to counter this narrative of power.
AP2 (Applicant): Human rights are still the most effective way of speaking truth to power.
AP2 (Applicant): They are the only guarantees against the agglomeration, the abuse of power, whatever form the latter takes.
AP2 (Applicant): Let's not be led astray by unnecessary considerations of conflict and systemic irreconcilability between legal regimes.
AP2 (Applicant): This is not what the law prescribes, let alone the law of the European Convention.
AP2 (Applicant): This is not what the large majority of the high contracting parties want.
AP2 (Applicant): This is not even what the Security Council asks for.
AP2 (Applicant): There will be no detrimental, let alone fatal, consequences for the prerogatives of the Security Council or for international peace and security in the circumstances of the case.
AP2 (Applicant): Respondent states and intervening third parties cleverly resorted in their written submissions to a well-known rhetorical device, the oral vacui argument.
AP2 (Applicant): They want us to believe that were the court not to endorse the view that Article 103 trumps the rules of the European Convention, the fragmentation of the entire international legal system and the demise of the collective security system would inevitably ensue.
AP2 (Applicant): Rather, the contrary is true.
AP2 (Applicant): In an international legal order where an effort is made to interpret its rules and obligations as consistently as possible with one another, in harmony with one another, to use your own words, there will be less chances of conflict, division, and incongruities of legal solutions.
AP2 (Applicant): The chamber has clearly shown the way to go by its conclusive and compelling reasoning on the fundamental question of determining whether Security Council's obligations and obligations stemming from the Convention can be reconciled by a harmonious interpretation.
AP2 (Applicant): May it please the court to judge and declare that the chamber was correct in its findings and that nothing in the law of the European Convention, nor in international law for that matter, makes the Convention's fundamental protection of Article 6 inapplicable in the case at hand.
AP2 (Applicant): I have always thought, since I was a student, that one of the most inspiring and important contributions to the interpretation of human rights treaties by this court is that the Convention is intended to guarantee rights that are not theoretical and illusory, but practical and effective.
AP2 (Applicant): Let this be so.
AP2 (Applicant): I thank you for your kind attention.
Dean Spielmann (JudgeP): Merci, monsieur le professeur.
Dean Spielmann (JudgeP): Maintenant, je donne la parole au gouvernement suisse et à monsieur Schürmann.
GR1 (Government): Monsieur le Président, Mesdames et Messieurs les membres de la Cour, après l'affaire Nada débattue en 2011, c'est aujourd'hui la deuxième fois que la Grande Chambre est appelée à juger une affaire suisse qui soulève la même question de principe.
GR1 (Government): Est-ce qu'un État parti à la Convention peut être tenu pour responsable si la prétendue violation de la Convention était la conséquence du respect d'une résolution contraignante adoptée par le Conseil de sécurité en application du chapitre 7 de la Charte?
GR1 (Government): Dans la Règle Nada, la Cour a estimé qu'il n'était pas nécessaire de donner une réponse à cette question.
GR1 (Government): Se basant sur les circonstances du cas d'espèce, elle avait conclu que la violation n'était pas inévitable parce que la Suisse jouissait d'une latitude dans la mise en œuvre de la résolution pertinente.
GR1 (Government): Or, il ressort de l'arrêt de la Chambre et les sept juges y consentent que pareille latitude n'existait pas dans la présente affaire.
GR1 (Government): Le 6 août 1990, profondément préoccupé par le fait que l'invasion du Kouwaïte se poursuit, entraînant de nouvelles pertes en vie humaine et de nouvelles destructions, le Conseil de sécurité a adopté la résolution n°661, établissant un embargo général à l'encontre de l'Irak.
GR1 (Government): Embargo général, non pas gel et confiscation.
GR1 (Government): Cette résolution s'adressait expressément à tous les États, donc également à la Suisse qui, à l'époque, n'était pas encore membre des Nations unies.