Preliminary objections dismissed (Article 35-3 - Ratione personae);Preliminary objections dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life)

Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristina Pardalos;Mihai Poalelungi;Nicolas Bratza;Sverre Erik Jebens

The applicant was born in DATE and has been living since DATE in Campione d’Italia , which is an NORP enclave of QUANTITY . km in GPE ) , surrounded by the Swiss Canton of GPE and separated from the rest of GPE by GPE .

He describes himself as a practising NORP and a prominent businessman in the financial and political world , in which he purports to be highly regarded . An engineer by training , he has worked in very diverse sectors , in particular banking , foreign trade , industry and real estate . In the course of his business activities , he founded numerous companies of which he was the sole or principal shareholder .

In his submission , he is opposed to all uses of terrorism and has never had any involvement with ORG . On the contrary , he has consistently denounced not only the means used by that organisation , but also its ideology .

The applicant has further indicated that he has CARDINAL kidney that is still functioning properly ( the other having deteriorated in DATE ) . He also suffers from bleeding in his left eye , as shown by a medical certificate of DATE , and arthritis in the neck . In addition , according to a medical certificate issued by a doctor in GPE on DATE , he sustained a fracture in his right hand which was due to be operated on in DATE . The applicant has alleged that , because of the restrictions imposed on him which gave rise to the present application , he was unable to undergo this operation and has continued to suffer from the consequences of the fracture .

On DATE , in response to the CARDINAL DATE bombings by PERSON and members of his network against the GPE embassies in GPE ( GPE ) and GPE ( GPE ) ORG of ORG ( adopted , under LAW , LAW ( DATE ) , providing for sanctions against the ORG ( see paragraph CARDINAL below ) and created a committee consisting of all the members of ORG to monitor the enforcement of that ORG ( “ the ORG ” ) .

On DATE , to implement that ORG , ORG ( the federal executive ) adopted an Ordinance “ instituting measures against the ORG ” ( “ the LAW ” – see paragraph CARDINAL below ) , which subsequently underwent a number of amendments , including to its title .

By CARDINAL ) of DATE ( see paragraph CARDINAL below ) , ORG extended the sanctions regime . It was now also directed against PERSON and the ORG organisation , as well as the ORG ’s senior officials and advisers . In both Resolutions CARDINAL ( DATE ) and CARDINAL ( DATE ) , ORG requested ORG to maintain a list , based on information provided by GPE and regional organisations , of individuals and entities associated with PERSON and ORG .

On DATE the NORP government amended the GPE Ordinance in order to implement LAW ( DATE ) . It added a new LAW , paragraph CARDINAL of which prohibited entry into and transit through GPE for the individuals and entities concerned by the ORG ( but without naming them ) .

On DATE ORG opened an investigation in respect of the applicant .

On DATE the President of GPE blocked the assets of ORG , of which the applicant was the Chairman and principal shareholder .

On DATE the applicant and a number of organisations associated with him were added to ORG list . On DATE ( or CARDINAL DATE according to the applicant ’s observations ) , their names were added to the list in an annex to the Taliban Ordinance .

On DATE ORG adopted Resolution CARDINAL ( DATE ) , introducing an entry - and - transit ban in respect of “ individuals , groups , undertakings and entities associated with them , as referred to in the list created pursuant to LAW ( DATE ) and CARDINAL ( DATE ) ” ( see paragraphs DATE and CARDINAL below ) . On DATE Article CARDINAL of the Taliban Ordinance was amended accordingly : the entry - and - transit ban applied henceforth to all individuals named in Annex CARDINAL to the GPE , including the applicant .

On DATE GPE became a member of ORG .

When he visited GPE in DATE , the applicant was arrested and removed to GPE , his money also being seized .

On DATE , following criticism by ORG for the application of the sanctions ( see paragraph CARDINAL below ) , the GPE of GPE revoked the applicant ’s special border - crossing permit . ORG had observed , in the course of its inquiry into the applicant ’s activities , that he was able to move relatively freely between GPE and GPE . In the ORG ’s submission , it was only from DATE that the applicant was actually affected by the entry - and - transit ban .

On DATE ORG ( ORG ) informed the applicant that he was no longer authorised to cross the border .

On DATE the applicant lodged a request with the FAC for leave to enter or transit through GPE for the purposes of medical treatment in that country and legal proceedings in both GPE and GPE . The ORG dismissed that request on DATE as being ill - founded . Moreover , it indicated to the applicant that the grounds put forward in support of his request , namely , the need to consult his lawyers and receive treatment and , secondly , the specific situation related to his residence in FAC d’Italia , were not such as to permit the authorities to grant him an exemption from the measure taken against him .

By a decision of DATE , ORG ordered ORG either to discontinue the proceedings or to send the case to the competent federal investigating judge by DATE . By an order of that date ORG , finding that the accusations against the applicant were unsubstantiated , closed the investigation in respect of the applicant .

On DATE the applicant requested ORG to delete his name and those of the organisations associated with him from the annex to the ORG Ordinance . He argued , in support of his claim , that the police investigation concerning him had been discontinued by a decision of ORG and that it was therefore no longer justified to subject him to sanctions .

By a decision of DATE , ORG ( ORG ) rejected his request on the ground that GPE could not delete names from the annex to the ORG Ordinance while they still appeared on ORG list .

On DATE the applicant lodged an administrative appeal with ORG ( “ the GPE ” ) .

By a decision of DATE , the ORG dismissed that appeal . It confirmed that the deletion of a name from the annex to the GPE could be envisaged only once that name had been deleted from ORG list , and explained that , for this purpose , it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to ORG institutions . As GPE was neither the applicant ’s State of citizenship nor his ORG of residence , the ORG found that the NORP authorities were not competent to initiate such a procedure .

On DATE the applicant appealed to ORG against the ORG ’s decision . He requested that his name and those of a certain number of organisations associated with him be deleted from the list in ORG to the Taliban Ordinance .

On DATE ORG ( FOM ) , which had been created in DATE , incorporating the IMES , granted the applicant an exemption for DATE , DATE , so that he could go to GPE for legal proceedings . The applicant did not make use of that authorisation .

On DATE the applicant sent to the “ focal point ” of ORG DATE a body set up by LAW ( DATE ) to receive requests for delisting from individuals or entities on ORG lists ( see paragraph CARDINAL below ) – a request for the deletion of his name from the relevant list .

By a decision of DATE ORG , ruling on the appeal of DATE , referred the case to ORG , finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions ; also that LAW consequently applied to his request for deletion from the annex to the Taliban Ordinance , and that , accordingly , the case had to be examined by an independent and impartial tribunal .

In its observations , the ORG submitted that the appeal should be dismissed , pointing out that ORG DATE ) of DATE allowed persons and organisations whose names appeared on ORG list to apply for delisting on an individual basis rather than through their ORG of citizenship or residence .

The applicant maintained his submissions . Moreover , he alleged that on account of the ORG ’s evident reluctance to grant exemptions under LAW of the Taliban Ordinance , he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there , or even go to GPE for administrative or judicial reasons , and that he had therefore effectively spent DATE under house arrest . The addition of his name to ORG list was also tantamount to accusing him publicly of being associated with PERSON , ORG and the ORG , when that was not the case . Furthermore , he argued that the listing , without any justification or any possibility for him to be heard beforehand , breached the principles of prohibition of discrimination , individual freedom , enjoyment of possessions and economic freedom , together with the right to be heard and the right to a fair trial . Lastly , taking the view that ORG sanctions were contrary to LAW and to the peremptory norms of international law ( jus cogens ) , he argued that GPE was not obliged to implement them .

By a decision of CARDINAL DATE , in which it indicated the remedy available , the ORG dismissed a new exemption request by the applicant . By a decision of CARDINAL DATE , once again indicating the available remedies , it refused to examine a letter from the applicant that it regarded as a request for review . In a letter of DATE , the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption . On DATE the ORG again rejected his request , reminding him that he could challenge the decision by lodging an appeal with ORG . The applicant did not appeal against the decision .

On DATE the focal point for delisting requests denied the applicant ’s request of DATE to have his name removed from ORG list ( see paragraph CARDINAL above ) . On DATE the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation , invoking the confidentiality of the process . Lastly , in letters of CARDINAL and CARDINAL DATE the focal point reaffirmed the confidentiality of the process , but nevertheless informed the applicant that a ORG whose identity could not be disclosed had opposed his delisting .

By a judgment of CARDINAL DATE ORG , to which ORG had referred the applicant ’s appeal ( see paragraph CARDINAL above ) , declared that appeal admissible but dismissed it on the merits .

It firstly pointed out that , under LAW , the ORG member GPE had undertaken to accept and carry out the decisions of ORG in accordance with the LAW . It then observed that under LAW the obligations arising from that instrument did not only prevail over the domestic law of the member GPE but also over obligations under other international agreements , regardless of their nature , whether bilateral or multilateral . It further stated that this primacy did not relate only to the LAW but extended to all obligations which arose from a binding resolution of ORG .

ORG observed , however , that ORG was itself bound by the LAW and was required to act in accordance with its purposes and principles ( LAW ) , which included respecting human rights and fundamental freedoms ( LAW of the LAW ) . At the same time , it took the view that the member GPE were not permitted to avoid an obligation on the ground that a decision ( or resolution ) by ORG was substantively inconsistent with the LAW , in particular decisions ( resolutions ) based on Chapter VII thereof ( action with respect to threats to the peace , breaches of the peace and acts of aggression ) .

ORG then observed that under LAW ( see paragraph CARDINAL below ) , it was bound by federal laws and international law . It took the view that the applicable international law , in addition to international treaties ratified by GPE , also included customary international law , general principles of law and the decisions of international organisations which were binding on GPE , including ORG decisions concerning the sanctions regime .

However , it observed that LAW contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on GPE , and that in the present case there was such a conflict between ORG decisions on the one hand and the guarantees of LAW and LAW on the other . It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties , it would be necessary , in order to settle the issue , to look to the hierarchy of international legal norms , according to which obligations under LAW prevailed over obligations under any other international agreement ( Article CARDINAL of the LAW , taken together with LAW on the Law of Treaties ; see paragraphs CARDINAL and CARDINAL below ) . ORG was of the opinion that the uniform application of ORG sanctions would be endangered if the courts of GPE Parties to ORG or LAW were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations .

The court nevertheless accepted that the obligation to implement ORG decisions was limited by norms of jus cogens . Accordingly , it considered itself bound to ascertain whether the sanctions regime set up by ORG was capable of breaching the peremptory norms of international law , as the applicant had claimed .

ORG then cited , as examples of jus cogens norms , the right to life , protection from torture and inhuman or degrading treatment , the prohibition of slavery , the prohibition of collective punishment , the principle of individual criminal responsibility and the non - refoulement principle . It took the view , however , that the enjoyment of possessions , economic freedom , the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens .

As regards the consequences for the applicant of the measures taken against him , in particular the ban on entry into and transit through GPE , ORG found as follows :

“ CARDINAL.CARDINAL ... These sanctions include far - reaching commercial restrictions for those affected ; the funds necessary for their survival are not , however , blocked ( see Resolution CARDINAL ( DATE ) , paragraph CARDINAL(a ) ) , as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment .

The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty : they are free to move around within their country of residence ( see , however , point CARDINAL below regarding the appellant ’s particular situation ) ; journeys to their home country are also specifically permitted ( see Resolution DATE ) , paragraph CARDINAL(b ) ) .

ORG further indicated that , generally speaking , sanctions were decided by ORG without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts . It mentioned in this connection that , in particular under the terms of LAW ( DATE ) , the delisting procedure allowing individuals to have direct access to ORG already represented substantial progress , even though the system still had considerable shortcomings from the point of view of human rights .

ORG then examined the question of the extent to which GPE was bound by the relevant resolutions , in other words whether it had any latitude ( Ermessensspielraum ) in implementing them :

“ CARDINAL ORG adopted Resolution CARDINAL ( DATE ) and the subsequent Resolutions regarding sanctions affecting ORG and the ORG on the basis of Chapter VII of LAW , with the express obligation on all member GPE to adopt an integral and strict approach to implementing the sanctions envisaged therein , ignoring any existing rights and obligations under international agreements or contracts ( see paragraph CARDINAL of Resolution CARDINAL ( DATE ) ) .

The sanctions ( freezing of assets , entry - and - transit ban , arms embargo ) are described in detail and afford member GPE no margin of appreciation in their implementation . The names of those affected by the sanctions are also indicated to the member GPE : this is determined by the list drawn up and maintained by ORG ( see paragraph PERCENT of CARDINAL ) ) .

As regards the possibility of obtaining deletion from the list , ORG has introduced a specific procedure ( see paragraphs CARDINAL et seq . of Resolution DATE ) and the directives of ORG dated DATE ) . The member GPE 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 ORG list .

GPE would therefore be in breach of its obligations under the LAW were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance .

NORP In view of the foregoing , GPE is not permitted , of its own motion , to delete the appellant ’s name from FAC to the ORG Ordinance .

It is to be admitted that in this situation no effective remedy is available to the appellant . ORG may certainly examine whether and to what extent GPE is bound by ORG , but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights .

ORG alone is responsible for the delisting of persons or entities . In spite of the improvements mentioned above , the delisting procedure fails to meet both the requirement of access to a court under LAW , LAW ] and LAW , and that of an effective remedy within the meaning of LAW ] and LAW of LAW ... ”

ORG further examined whether GPE , even if it were not authorised to delete the applicant ’s name from the list on its own initiative , was nevertheless at least obliged to assist him in connection with the delisting procedure . Its reasoning was as follows :

“ CARDINAL.CARDINAL The lower courts examined whether GPE was obliged to initiate the delisting procedure on behalf of the appellant . In the meantime , this issue has become irrelevant as , since the amendment of the delisting procedure , the appellant has been able to make an application himself and has indeed availed himself of this opportunity .

CARDINAL For his application to be successful he nevertheless relies on the support of GPE , since this is the only country to have conducted a comprehensive preliminary investigation , with numerous letters of request , house searches and questioning of witnesses .

ORG member GPE are obliged to prosecute persons suspected of financing or supporting terrorism ( see paragraph CARDINAL(e ) of ORG DATE ) ) ...

On the other hand , should the criminal proceedings end in an acquittal or be discontinued , this should lead to the removal of the preventive sanctions . Admittedly , the country which has conducted the criminal proceedings or preliminary investigation can not itself proceed with the deletion , but it can at least transmit the results of its investigations to ORG and request or support the person ’s delisting . ”

Lastly , ORG examined whether the travel ban enforced under LAW of the Taliban Ordinance extended beyond the sanctions introduced by ORG and whether the NORP authorities thus had any latitude in that connection . The court found as follows :

“ CARDINAL.CARDINAL Article CARDINAL § CARDINAL of the NORP Ordinance prohibits the individuals listed in LAW from entering or transiting through GPE . Article CARDINAL § CARDINAL provides that , in agreement with ORG decisions or for the protection of NORP interests , ORG is entitled to grant exemptions .

According to ORG , the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process . In addition , exemptions can be granted in individual cases with the agreement of ORG ( see paragraph CARDINAL(b ) of Resolution DATE ) ) . This includes in particular travel on medical , humanitarian or religious grounds ...

QUANTITY Article CARDINAL § CARDINAL of the Taliban Ordinance is formulated as an ‘ enabling’ provision and gives the impression that ORG has a certain margin of appreciation . Constitutionally however , the provision is to be interpreted as meaning that an exemption should be granted in all cases where the ORG sanctions regime so permits . A more far - reaching restriction on the appellant ’s freedom of movement could not be regarded as based on ORG , would not be in the public interest and would be disproportionate in the light of the appellant ’s particular situation .

The appellant lives in PERSON , an NORP enclave in GPE , with an area of CARDINAL sq . km . As a result of the ban on entry into and transit through GPE , he is unable to leave PERSON . Practically speaking , as the appellant correctly argued , this is tantamount to house arrest and thus represents a serious restriction on his personal liberty . In these circumstances the NORP authorities are obliged to exhaust all the relaxations of the sanctions regime available under ORG .

ORG thus has no margin of appreciation . Rather , it must examine whether the conditions for the granting of an exemption are met . Should the request not fall within CARDINAL of the general exemptions envisaged by ORG , it must be submitted to ORG for approval .

CARDINAL The question whether ORG has disregarded the constitutional requirements in dealing with the appellant ’s applications for leave to travel abroad does not need to be examined here : the relevant orders of ORG have not been challenged by the appellant and are not a matter of dispute in the present proceedings .

The same applies to the question whether the appellant should have moved his place of residence from the NORP enclave of PERSON to GPE . To date the appellant has made no such request . ”

Following ORG judgment , the applicant wrote to the ORG to request it to re - examine the possibility of applying general exemptions to his particular situation . On DATE he lodged a new request seeking the suspension of the entry - and - transit ban for DATE . By a letter of CARDINAL DATE , the ORG denied that request , stating that it was unable to grant a suspension for such a long period without referring the matter to ORG , but that it could grant CARDINAL - off safe conducts . The applicant did not challenge that decision .

On DATE , at a meeting between the NORP authorities and the applicant ’s representative on the subject of the support that GPE could provide to the applicant in his efforts to obtain his delisting , a representative of ORG observed that the situation was rather singular as the applicant , on the one hand , was asking what support the NORP authorities could give him in the ORG delisting procedure and , on the other , had brought a case against GPE before the ORG .

During the meeting the applicant ’s representative explained that he had received verbal confirmation from the ORG to the effect that his client would be granted CARDINAL - off authorisations to go to GPE , in order to consult his lawyer in GPE . The representative of ORG also indicated that the applicant could ask ORG for a more extensive exemption on account of his particular situation . However , she also repeated that GPE could not itself apply to ORG for the applicant ’s delisting . She added that her government would nevertheless be prepared to support him , in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued . The applicant ’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient .

As to the applicant ’s requests to the NORP authorities with a view to obtaining their support in a delisting procedure , ORG representative suggested that the lawyer contact ORG to the United Nations , adding that GPE had , at that time , a seat on ORG .

The Government informed the ORG that in DATE an NORP military tribunal had sentenced the applicant in absentia to CARDINAL years’ imprisonment for providing financial support to the ORG organisation ( see the article on this subject in the DATE newspaper ORG of DATE ) . The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer . For those reasons , and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian , he claimed that the proceedings in question were clearly in breach of LAW .

On DATE the NORP government submitted to ORG a request for the applicant ’s delisting on the ground that the case against him in GPE had been dismissed . ORG denied that request by a decision of DATE . In the applicant ’s submission , ORG had not allowed him to submit his observations to it beforehand .

On DATE the ORG granted the applicant the right to enter GPE and to remain in the country for DATE , but the applicant did not make use of this authorisation .

By a letter of DATE , the ORG informed the applicant that the entry of GPE into LOC , on DATE , did not affect his situation .

In their observations before the ORG , ORG stated that , to their knowledge , the applicant ’s listing had been initiated by a request from GPE , and that the same ORG had submitted to ORG , on DATE , a request for the delisting of a number of individuals , including the applicant .

On DATE , in accordance with the procedure laid down by ORG DATE ) , the applicant submitted a request to the focal point for delisting requests for the deletion of his name from ORG list .

On DATE GPE sent to ORG a copy of a letter of CARDINAL DATE from ORG to the applicant ’s lawyer , in which that ORG confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with PERSON , ORG or the ORG .

On DATE the applicant ’s name was deleted from the list annexed to ORG providing for the sanctions in question . According to the applicant , the procedure provided for under LAW ( DATE ) was not followed and he received no explanation in this connection . On DATE the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on DATE .

By a motion passed on DATE , ORG of ORG ( lower house of ORG ) requested ORG to inform ORG that from DATE it would no longer , in certain cases , be applying the sanctions prescribed against individuals under the counterterrorism resolutions . It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the GPE . The motion had been introduced on DATE by PERSON , a member of ORG ( upper house of ORG ) , and it referred to the applicant ’s case by way of example .

The Government asserted that even though GPE was not a member of ORG it had , with other GPE , actively worked since becoming a member of ORG on DATE to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned . Thus , in DATE , it had launched with GPE and GPE a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure . Pursuing its initiative , GPE had submitted to ORG in DATE , together with GPE , GPE , GPE , the GPE and GPE , concrete proposals for the setting - up of an advisory panel of independent experts authorised to submit delisting proposals to ORG . Moreover , in the autumn of DATE GPE had worked intensively with its partners to ensure that the ORG on the renewal of the sanctions regime against ORG and the ORG , scheduled for adoption in DATE , met that need . In the meantime GPE had supported the publication in DATE of a report proposing , as an option for an advisory review mechanism , the creation of an ombudsperson . On DATE ORG adopted DATE ( DATE ) , setting up the office of ombudsperson to receive complaints from individuals affected by ORG counterterrorism sanctions ( see paragraph CARDINAL below ) . Lastly , GPE had called on many occasions , before ORG and ORG , for an improvement in the procedural rights of the persons concerned by the sanctions .

Article CARDINAL ( “ Applicable law ” ) of LAW provides :

“ ORG and the other authorities shall be required to apply federal statutes and international law . ”

The Ordinance of DATE , instituting measures against persons and entities associated with PERSON , the group “ ORG ” or the ORG , has been amended several times . The relevant provisions read as follows , in the version that was in force in the period under consideration in the present case , and in particular at the time when ORG delivered its judgment ( DATE ) .

“ CARDINAL . The supply , sale or brokerage of arms of all types , including weapons and ammunition , military vehicles and equipment , paramilitary equipment , and spare parts or accessories for the above - mentioned , to the individuals , undertakings , groups or entities referred to in FAC hereto , shall be prohibited .

NORP The supply , sale or brokerage of technical advice , assistance and training related to military activities , to the individuals , undertakings , groups or entities referred to in FAC hereto , shall be prohibited .

Paragraphs CARDINAL and CARDINAL above shall apply only to the extent that LAW of DATE , LAW of DATE and their respective implementing ordinances are not applicable .

“ CARDINAL . Assets and economic resources owned or controlled by the individuals , undertakings , groups or entities referred to in FAC hereto shall be frozen .

It shall be prohibited to supply funds to the individuals , undertakings , groups or entities referred to in Annex QUANTITY hereto , or to make assets or economic resources available to them , directly or indirectly .

ORG ( ORG ) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs CARDINAL and CARDINAL above .

The ORG may authorise , after consulting the competent services of ORG and ORG , payments from blocked accounts , transfers of frozen capital assets and the release of frozen economic resources , in order to protect NORP interests or to prevent hardship cases . ”

“ CARDINAL . Anyone holding or managing assets acknowledged to be covered by the freezing of assets under LAW hereof must immediately declare them to the ORG .

Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under LAW hereof must immediately declare them to the ORG .

The declaration must give the name of the beneficiary , the purpose and the amount of the assets or economic resources frozen . ”

“ CARDINAL . Entry into and transit through GPE shall be prohibited for the individuals listed in FAC hereto .

ORG may , in conformity with the decisions of ORG or for the protection of NORP interests , grant exemptions . ”

LAW was signed in GPE on DATE . The relevant provisions for the present case read as follows .

“ We the peoples of ORG , determined

to save succeeding generations from the scourge of war , which twice in our lifetime has brought untold sorrow to mankind , and

to reaffirm faith in fundamental human rights , in the dignity and worth of the human person , in the equal rights of men and women and of nations large and small , and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained , and

to promote social progress and better standards of life in larger freedom ,

and for these ends

to practice tolerance and live together in peace with one another as good neighbors , and

to unite our strength to maintain international peace and security , and

to ensure , by the acceptance of principles and the institution of methods , that armed force shall not be used , save in the common interest , and

to employ international machinery for the promotion of the economic and social advancement of all peoples ,

have resolved to combine our efforts to accomplish these aims .

Accordingly , our respective ORG , through representatives assembled in the city of GPE , who have exhibited their full powers found to be in good and due form , have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as ORG . ”

“ The Purposes of ORG are :

To maintain international peace and security , and to that end : to take effective collective measures for the prevention and removal of threats to the peace , and for the suppression of acts of aggression or other breaches of the peace , and to bring about by peaceful means , and in conformity with the principles of justice and international law , adjustment or settlement of international disputes or situations which might lead to a breach of the peace ;

To achieve international cooperation in solving international problems of an economic , social , cultural , or humanitarian character , and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race , sex , language , or religion ; and

“ CARDINAL . In order to ensure prompt and effective action by ORG , its members confer on the ORG primary responsibility for the maintenance of international peace and security , and agree that in carrying out its duties under this responsibility ORG acts on their behalf .

NORP In discharging these duties the ORG shall act in accordance with the Purposes and Principles of ORG . The specific powers granted to ORG for the discharge of these duties are laid down in Chapters VI , VII , ORG , and ORG .

“ The members of ORG agree to accept and carry out the decisions of ORG in accordance with the present Charter . ”

Chapter VII of the LAW is entitled “ Action with respect to threats to the peace , breaches of the peace , and acts of aggression ” . Article CARDINAL reads as follows :

“ The Security Council shall determine the existence of any threat to the peace , breach of the peace , or act of aggression and shall make recommendations , or decide what measures shall be taken in accordance with ORG CARDINAL and DATE , to maintain or restore international peace and security . ”

Chapter ORG is entitled “ Miscellaneous Provisions ” . Article CARDINAL reads as follows :

“ In the event of a conflict between the obligations of the members of ORG under the present Charter and their obligations under any other international agreement , their obligations under the present Charter shall prevail . ”

Resolution CARDINAL ( DATE ) was adopted on DATE . It created ORG , consisting of all ORG members . ORG was in particular entrusted with the task of requesting all GPE to keep it informed of the steps taken to ensure the effective implementation of the measures required under the ORG , namely the denial of permission for aircraft associated with the ORG to use their territory for take - off or landing , unless ORG had approved the flight in advance for humanitarian reasons and , secondly , the freezing of the ORG ’s funds and other financial resources . The relevant parts of this ORG read as follows .

ORG ,

Reaffirming its previous resolutions , in particular Resolutions CARDINAL ( DATE ) of CARDINAL DATE , CARDINAL ( DATE ) of CARDINAL DATE ) of DATE , and the statements of its President on the situation in GPE ,

Reaffirming its strong commitment to the sovereignty , independence , territorial integrity and national unity of GPE , and its respect for GPE ’s cultural and historical heritage ,

Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights , particularly discrimination against women and girls , and over the significant rise in the illicit production of opium , and stressing that the capture by the ORG of FAC and the murder of NORP diplomats and a journalist in GPE constituted flagrant violations of established international law ,

Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists ,

Strongly condemning the continuing use of NORP territory , especially areas controlled by the ORG , for the sheltering and training of terrorists and planning of terrorist acts , and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security ,

Deploring the fact that the ORG continues to provide safe haven to [ PERSON ] and to allow him and others associated with him to operate a network of terrorist training camps from ORG - controlled territory and to use GPE as a base from which to sponsor international terrorist operations ,

Noting the indictment of [ PERSON ] and his associates by GPE for , inter alia , the DATE bombings of the GPE embassies in GPE , GPE , and GPE , GPE and for conspiring to kill NORP nationals outside GPE , and noting also the request of GPE to the ORG to surrender them for trial ( S/CARDINAL/CARDINAL ) ,

Determining that the failure of the ORG authorities to respond to the demands in paragraph CARDINAL of Resolution CARDINAL ( DATE ) constitutes a threat to international peace and security ,

Stressing its determination to ensure respect for its resolutions ,

Acting under LAW of ORG ,

Decides that on DATE all GPE shall impose the measures set out in DATE below , unless the ORG has previously decided , on the basis of a report of the Secretary - General , that the ORG has fully complied with the obligation set out in paragraph CARDINAL above ;

Decides further that , in order to enforce paragraph CARDINAL above , all GPE shall :

( a ) Deny permission for any aircraft to take off from or land in their territory if it is owned , leased or operated by or on behalf of the ORG as designated by ORG established by paragraph CARDINAL below , unless the particular flight has been approved in advance by ORG grounds of humanitarian need , including religious obligation such as the performance of the PERSON ;

( b ) ORG funds and other financial resources , including funds derived or generated from property owned or controlled directly or indirectly by the ORG , or by any undertaking owned or controlled by the ORG , as designated by ORG established by paragraph CARDINAL below , and ensure that neither they nor any other funds or financial resources so designated are made available , by their nationals or by any persons within their territory , to or for the benefit of the ORG or any undertaking owned or controlled , directly or indirectly , by the ORG , except as may be authorized by ORG on a case - by - case basis on the grounds of humanitarian need ;

Urges all GPE to cooperate with efforts to fulfil the demand in paragraph CARDINAL above , and to consider further measures against [ PERSON ] and his associates ;

Decides to establish , in accordance with rule CARDINAL of its provisional rules of procedure , a Committee of the ORG consisting of all the members of the ORG to undertake the following tasks and to report on its work to the ORG with its observations and recommendations :

Calls upon all GPE to act strictly in accordance with the provisions of this ORG , notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph CARDINAL above ;

Calls upon GPE to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph CARDINAL above and to impose appropriate penalties ;

Calls upon all ORG to cooperate fully with the ORG established by paragraph CARDINAL above in the fulfilment of its tasks , including supplying such information as may be required by ORG in pursuance of this ORG ;

Requests all States to report to ORG established by paragraph CARDINAL above within DATE of the coming into force of the measures imposed by paragraph CARDINAL above on the steps they have taken with a view to effectively implementing paragraph CARDINAL above ;

By CARDINAL ) , adopted on DATE , ORG extended the application of the sanctions provided for under LAW ( DATE ) to any individuals or entities identified by ORG as being associated with ORG or PERSON . The ORG further required a list to be maintained for the implementation of the ORG sanctions . The passages that are relevant to the present case read as follows .

ORG ,

Reaffirming its previous resolutions , in particular LAW ( DATE ) of DATE and the statements of its President on the situation in GPE ,

Reaffirming its strong commitment to the sovereignty , independence , territorial integrity and national unity of GPE , and its respect for GPE ’s cultural and historical heritage ,

Recognizing the critical humanitarian needs of the NORP people ,

Decides that all GPE shall take further measures :

( a ) To close immediately and completely all ORG offices in their territories ;

( b ) To close immediately all offices of ORG in their territories ;

( c ) To freeze without delay funds and other financial assets of [ PERSON ] and individuals and entities associated with him as designated by ORG , including those in the [ ORG ] organization , and including funds derived or generated from property owned or controlled directly or indirectly by [ PERSON ] and individuals and entities associated with him , and to ensure that neither they nor any other funds or financial resources are made available , by their nationals or by any persons within their territory , directly or indirectly for the benefit of [ PERSON ] , his associates or any entities owned or controlled , directly or indirectly , by [ PERSON ] or individuals and entities associated with him including the [ ORG ] organization and requests ORG to maintain an updated list , based on information provided by GPE and regional organizations , of the individuals and entities designated as being associated with [ PERSON ] , including those in the [ ORG ] organization ;

Decides further that the ORG shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to GPE , including ORG and its agencies , governmental relief agencies providing humanitarian assistance , ORG and non - governmental organizations as appropriate , that the prohibition imposed by paragraph CARDINAL above shall not apply to humanitarian flights operated by , or on behalf of , organizations and governmental relief agencies on the list approved by ORG , that the ORG shall keep the list under regular review , adding new organizations and governmental relief agencies as appropriate and that the ORG shall remove organizations and governmental agencies from the list if it decides that they are operating , or are likely to operate , flights for other than humanitarian purposes , and shall notify such organizations and governmental agencies immediately that any flights operated by them , or on their behalf , are thereby subject to the provisions of paragraph CARDINAL above ;

Requests the ORG to fulfil its mandate by undertaking the following tasks in addition to those set out in LAW ( DATE ) :

( a ) To establish and maintain updated lists based on information provided by GPE , regional , and international organizations of all points of entry and landing areas for aircraft within the territory of GPE under control by the ORG and to notify member GPE of the contents of such lists ;

( b ) To establish and maintain updated lists , based on information provided by GPE and regional organizations , of individuals and entities designated as being associated with [ PERSON ] , in accordance with paragraph CARDINAL ( c ) above ;

( c ) To give consideration to , and decide upon , requests for the exceptions set out in DATE and QUANTITY above ;

( d ) To establish DATE after the adoption of this ORG and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to GPE , in accordance with paragraph CARDINAL above ;

Calls upon all GPE and all international and regional organizations , including ORG and its specialized agencies , to act strictly in accordance with the provisions of this ORG , notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by DATE , DATE , DATE and QUANTITY above ;

In Resolution CARDINAL ( DATE ) , adopted on DATE , ORG decided to set up a mechanism to monitor the measures imposed by Resolutions CARDINAL ( DATE ) and CARDINAL ( DATE ) ( “ the ORG ” ) , consisting of CARDINAL experts selected on the basis of equitable geographical distribution .

In Resolution CARDINAL ( DATE ) , adopted on DATE – following the events of DATE – ORG decided that GPE should take a series of measures to combat international terrorism and ensure effective border controls in this connection . The passages that are relevant to the present case read as follows .

ORG ,

Decides that all GPE shall :

( a ) Prevent and suppress the financing of terrorist acts ;

( b ) PERSON the wilful provision or collection , by any means , directly or indirectly , of funds by their nationals or in their territories with the intention that the funds should be used , or in the knowledge that they are to be used , in order to carry out terrorist acts ;

( c ) Freeze without delay funds and other financial assets or economic resources of persons who commit , or attempt to commit , terrorist acts or participate in or facilitate the commission of terrorist acts ; of entities owned or controlled directly or indirectly by such persons ; and of persons and entities acting on behalf of , or at the direction of such persons and entities , including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities ;

( d ) Prohibit their nationals or any persons and entities within their territories from making any funds , financial assets or economic resources or financial or other related services available , directly or indirectly , for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts , of entities owned or controlled , directly or indirectly , by such persons and of persons and entities acting on behalf of or at the direction of such persons ;

PERSON also that all GPE shall :

( a ) Refrain from providing any form of support , active or passive , to entities or persons involved in terrorist acts , including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists ;

( b ) Take the necessary steps to prevent the commission of terrorist acts , including by provision of early warning to other GPE by exchange of information ;

( c ) Deny safe haven to those who finance , plan , support , or commit terrorist acts , or provide safe havens ;

( d ) Prevent those who finance , plan , facilitate or commit terrorist acts from using their respective territories for those purposes against other GPE or their citizens ;

( e ) Ensure that any person who participates in the financing , planning , preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that , in addition to any other measures against them , such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts ;

Calls upon all GPE to :

( f ) Take appropriate measures in conformity with the relevant provisions of national and international law , including international standards of human rights , before granting refugee status , for the purpose of ensuring that the asylum - seeker has not planned , facilitated or participated in the commission of terrorist acts ;

In Resolution CARDINAL ( DATE ) , adopted on DATE , ORG decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions . This ORG also made the sanctions regime more precise and transparent , because ORG was requested to update regularly the list of persons concerned by the sanctions , to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions , and to make any information it considered relevant , including the list of persons concerned , publicly available . The passages that are relevant to the present case read as follows :

ORG ,

Decides that all GPE shall take the following measures with respect to [ PERSON ] , members of the [ ORG ] organization and the ORG and other individuals , groups , undertakings and entities associated with them , as referred to in the list created pursuant to LAW ( DATE ) and CARDINAL ( DATE ) to be updated regularly by the ORG established pursuant to LAW ( DATE ) hereinafter referred to as ‘ the ORG ;

( a ) Freeze without delay the funds and other financial assets or economic resources of these individuals , groups , undertakings and entities , including funds derived from property owned or controlled , directly or indirectly , by them or by persons acting on their behalf or at their direction , and ensure that neither these nor any other funds , financial assets or economic resources are made available , directly or indirectly , for such ORG benefit , by their nationals or by any persons within their territory ;

( b ) Prevent the entry into or the transit through their territories of these individuals , provided that nothing in this paragraph shall oblige any ORG to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the ORG determines on a case by case basis only that entry or transit is justified ;

( c ) Prevent the direct or indirect supply , sale and transfer , to these individuals , groups , undertakings and entities from their territories or by their nationals outside their territories , or using their flag vessels or aircraft , of arms and related materiel of all types including weapons and ammunition , military vehicles and equipment , paramilitary equipment , and spare parts for the aforementioned and technical advice , assistance , or training related to military activities ;

Urges all GPE to take immediate steps to enforce and strengthen through legislative enactments or administrative measures , where appropriate , the measures imposed under domestic laws 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 CARDINAL of this ORG , and to inform ORG such measures , and invites GPE to report the results of all related investigations or enforcement actions to the ORG unless to do so would compromise the investigation or enforcement actions ; ... ”

In DATE ) , adopted on DATE , ORG requested States , on the submission of new names to be added to the ORG ’s list , to supply information facilitating the identification of the persons or entities concerned . It also expressly encouraged ORG to inform , as far as possible , the persons and entities on the ORG ’s list of the measures taken against them , of the ORG ’s guidelines and of LAW ( DATE ) concerning the possibility of exemption from certain sanctions .

DATE . In response to a surge in criticism of the sanctions regime , ORG adopted increasingly detailed resolutions to strengthen the procedural safeguards . In this connection , LAW ( DATE ) established the current procedure by creating a “ focal point ” to receive delisting requests in respect of persons or entities on the lists kept by ORG . Under that ORG the focal point was responsible for forwarding such requests , for their information and possible comments , to the designating government(s ) and to the government(s ) of citizenship and residence . That was to be followed by a consultation between the governments concerned , with or without the focal point acting as an intermediary . If recommended by CARDINAL of those governments , the delisting request was to be placed on the agenda of ORG , which would take decisions by consensus among its CARDINAL members .

Resolution DATE ) established a procedure for notifying the individuals or entities whose names were on the list . It further clarified the criteria for delisting as follows :

“ CARDINAL . ... the ORG , in determining whether to remove names from ORG , may consider , among other things , ( i ) whether the individual or entity was placed on the ORG due to a mistake of identity , or ( ii ) whether the individual or entity no longer meets the criteria set out in relevant resolutions , in particular LAW ( DATE ) ; in making the evaluation in ( ii ) above , the ORG may consider , among other things , whether the individual is deceased , or whether it has been affirmatively shown that the individual or entity has severed all association , as defined in LAW ( DATE ) , with [ ORG ] , [ PERSON ] , the ORG , and their supporters , including all individuals and entities on the ORG ; ”

The procedure was subsequently reinforced with the adoption of Resolutions DATE ) and DATE ( DATE ) , which post - date the present case . In the latter , adopted on DATE , ORG decided to create ORG PERSON , whose task is to receive requests from individuals concerned by the sanctions imposed by ORG in the fight against terrorism . Under that ORG , persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the PERSON , who examines each case impartially and independently and then submits a report to ORG explaining the reasons for or against delisting .

DATE ( “ Internal law and observance of treaties ” ) of LAW on LAW reads as follows :

“ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . ... ”

DATE ( “ Application of successive treaties relating to the same subject matter ” ) reads as follows :

“ CARDINAL . Subject to LAW , the rights and obligations of GPE Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs .

When a treaty specifies that it is subject to , or that it is not to be considered as incompatible with , an earlier or later treaty , the provisions of that other treaty prevail .

When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under LAW , the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty .

When the parties to the later treaty do not include all the parties to the earlier CARDINAL :

( a ) as between GPE Parties to both treaties the same rule applies as in paragraph CARDINAL ;

( b ) as between a ORG to both treaties and a ORG to CARDINAL of the treaties , the treaty to which both GPE are Parties governs their mutual rights and obligations .

Paragraph CARDINAL is without prejudice to LAW , or to any question of the termination or suspension of the operation of a treaty under LAW or to any question of responsibility which may arise for a ORG from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another ORG under another treaty . ”

NORP The report of the study group of ORG entitled “ Fragmentation of international law : difficulties arising from the diversification and expansion of international law ” , published in DATE , contains the following observations concerning LAW :

“ CARDINAL . In international law , there is a strong presumption against normative conflict . Treaty interpretation is diplomacy , and it is the business of diplomacy to avoid or mitigate conflict . This extends to adjudication as well . As PERSON puts the duties of a judge in CARDINAL of the earlier but still more useful discussions of treaty conflict :

... lorsqu’il est en présence de deux accords de volontés divergentes , il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [ PERSON , “ ORG compatibilité des normes juridiques contradictoires dans l’ordre international ” , RGDIP vol . DATE ) , p. CARDINAL ] .

This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways . It may appear as the thumb - rule that when creating new obligations , GPE are assumed not to derogate from their obligations . PERSON and LOC , for example , note the presence of a :

presumption that the parties intend something not inconsistent with generally recognized principles of international law , or with previous treaty obligations towards GPE [ Sir PERSON and Sir PERSON ( eds . ) , ORG ’s ORG GPE : PERSON , DATE ) ( CARDINALth ed ) , p. CARDINAL . For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also PERSON , ORG ... , pp . CARDINAL - CARDINAL ] .

As ORG stated in the Right of PERSON case :

it is a rule of interpretation that a text emanating from a government must , in principle , be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [ Case concerning the Right of Passage over NORP Territory ( Preliminary Objections ) ( GPE v. GPE ) ICJ Reports DATE p. CARDINAL ] .

Article CARDINAL does not say that the Charter prevails , but refers to obligations under the Charter . Apart from the rights and obligations in the LAW itself , this also covers duties based on binding decisions by ORG bodies . The most important case is that of LAW that obliges member GPE to accept and carry out resolutions of ORG that have been adopted LAW . Even if the primacy of ORG decisions under LAW is not expressly spelled out in the LAW , it has been widely accepted in practice as well as in doctrine ... ”

The measures taken under the ORG resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined , at international level , by ORG of ORG ( “ LOC ) and by ORG .

The case of PERSON and ORG Council of ORG of ORG ( joined cases C-CARDINAL/CARDINAL P and C-CARDINAL/CARDINAL P – hereinafter “ LOC ) concerned the freezing of the ORG assets pursuant to ORG adopted in connection with the implementation of ORG CARDINAL ( DATE ) , CARDINAL ( DATE ) and CARDINAL ( DATE ) , which , among other things , required all ORG member GPE to take measures to freeze the funds and other financial resources of the individuals and entities identified by ORG as being associated with PERSON , ORG or the ORG . In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by LAW instituting ORG ( “ the LAW ” ) . They contended that ORG had been adopted ultra vires .

On DATE ORG ( which on DATE became known as the “ ORG ” ) rejected those complaints and confirmed the lawfulness of the Regulations , finding mainly that LAW had the effect of placing ORG resolutions above all other international obligations ( except for those covered by jus cogens ) , including those arising from LAW . It concluded that it was not entitled to review ORG resolutions , even on an incidental basis , to ascertain whether they respected fundamental rights .

Mr Kadi appealed to ORG which on DATE became known as the “ ORG of ORG ” ) . The appeal was examined by a ORG jointly with another case . In its judgment of DATE , the ORG found that , in view of the internal and autonomous nature of the Community legal order , it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a ORG resolution . It thus held that , even though it was not for the “ Community judicature ” to examine the lawfulness of ORG resolutions , it was entitled to review ORG acts or acts of member GPE designed to give effect to such resolutions , and that this “ would not entail any challenge to the primacy of that resolution in international law ” .

The ORG concluded that the Community judicature had to 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 , were designed to give effect to resolutions of ORG . The judgment contained the following relevant passages :

In this connection it is to be borne in mind that the ORG is based on the rule of law , inasmuch as neither its member GPE nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter , LAW , which established a complete system of legal remedies and procedures designed to enable ORG to review the legality of acts of the institutions ( Case CARDINAL PERSON v. ORG [ DATE ] ECR CARDINAL , paragraph CARDINAL ) .

It must therefore be considered whether , as ORG held , as a result of the principles governing the relationship between the international legal order under ORG and the ORG legal order , any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded , notwithstanding the fact that , as is clear from the decisions referred to in CARDINAL above , such review is a constitutional guarantee forming part of the very foundations of the ORG .

Observance of the undertakings given in the context of ORG is required just as much in the sphere of the maintenance of international peace and security when the ORG gives effect , by means of the adoption of Community measures taken on the basis of Articles CARDINAL ORG and CARDINAL ORG , to resolutions adopted by ORG under LAW of ORG .

In the exercise of that latter power it is necessary for the ORG to attach special importance to the fact that , in accordance with LAW , the adoption by ORG of resolutions under LAW constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level , a responsibility which , LAW , includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them .

NORP Although , because of the adoption of such an act , the Community is bound to take , under LAW , the measures necessitated by that act , that obligation means , when the object is to implement a resolution of ORG adopted under LAW of ORG , that in drawing up those measures the ORG is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under LAW relating to such implementation .

Furthermore , the ORG has previously held that , for the purposes of the interpretation of the contested Regulation , account must also be taken of the wording and purpose of LAW ( DATE ) which that Regulation , according to the fourth recital in the preamble thereto , is designed to implement ( GPE and PERSON - Niehuus , paragraph DATE and case - law cited ) .

It must however be noted that the Charter of ORG does not impose the choice of a particular model for the implementation of resolutions adopted by ORG under LAW , since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of ORG . LAW leaves the members of ORG a free choice among the various possible models for transposition of those resolutions into their domestic legal order .

It follows from all those considerations that it is not a consequence of the principles governing the international legal order under ORG that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of ORG adopted under LAW of ORG .

What is more , such immunity from jurisdiction for a Community measure like the contested Regulation , as a corollary of the principle of the primacy at the level of international law of obligations under LAW , especially those relating to the implementation of resolutions of ORG adopted under LAW , can not find a basis in LAW . ”

The ORG concluded that the contested Regulations , which did not provide for any remedy in respect of the freezing of assets , were in breach of fundamental rights and were to be annulled .

In the case brought by PERSON and PERSON against GPE ( Views of ORG of DATE , concerning Communication no . DATE ) , ORG had occasion to examine the national implementation of the sanctions regime established by ORG in Resolution CARDINAL ( DATE ) . The CARDINAL complainants , NORP nationals , had been placed on the lists appended to that ORG in DATE , on the basis of information which had been provided to ORG by GPE , shortly after the commencement of a domestic criminal investigation in DATE . They had submitted several delisting requests at national , regional and ORG levels , all to no avail . In DATE , ORG had ordered ORG , inter alia , to initiate urgently a delisting procedure with ORG , and the ORG had subsequently done so .

ORG noted that the travel ban imposed on the complainants resulted from the transmittal by GPE of their names to ORG , before they had been heard . It thus took the view that even though GPE was not competent to remove their names from either ORG or ORG lists , it was responsible for the presence of their names on the lists , and for the resulting travel ban . ORG found a violation of the ORG right to freedom of movement under LAW , because both the dismissal of the criminal investigation and ORG delisting requests showed that the restrictions were not necessary to protect national security or public order .

The ORG also found an unlawful attack on the ORG honour and reputation , in breach of LAW , based on the accessibility of the list on the Internet , a number of press articles , the transmittal of the information about them prior to the conclusion of the criminal investigation , and the fact that , despite ORG requests for removal , their personal contact details were still accessible to the public .

In the ORG ’s opinion , although ORG itself was not competent to remove the names from the list , it had the duty to do all it could to obtain that deletion as soon as possible , to provide the complainants with compensation , to make public the requests for delisting , and to ensure that similar violations did not occur in the future .

On DATE the ORG names were removed from the list pursuant to a decision of ORG .

The measures in question have also been examined at national level , by ORG and ORG .

The case of PERSON and others v. PERSON , examined by ORG of GPE on DATE , concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions CARDINAL ( DATE ) and DATE ( DATE ) . ORG took the view that the government had acted ultra vires the powers conferred upon it by CARDINAL of LAW in making certain orders to implement ORG resolutions on sanctions .

In particular , Lord Hope , Deputy President of ORG , made the following observations :

“ CARDINAL . ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the ORG have taken really is within the powers that LAW has given them . Even in the face of the threat of international terrorism , the safety of the people is not the supreme law . We must be just as careful to guard against unrestrained encroachments on personal liberty . ”

He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows :

“ CARDINAL . I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy . As PERSON indicates , seeking a judicial review of the ORG ’s decision to treat him as a designated person will get him nowhere . G answers to that description because he has been designated by ORG [ ORG ] . What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review . This is something that , under the system that ORG currently operates , is denied to him . I would hold that LAW ( b ) of the LAW [ ORG ] , which has this effect , is ultra vires section CARDINAL of the CARDINAL Act . It is not necessary to consider for the purposes of this case whether the ORG as a whole is ultra vires except to say that I am not to be taken as indicating that LAW , had it been applicable in G ’s case , would have survived scrutiny .

I would treat ORG ’s case in the same way . He too is a designated person by reason of the fact that his name is on the CARDINAL ORG ’s list . As has already been observed , GPE is now seeking that his name should be removed from it . By letter dated DATE the ORG ’s ORG informed his solicitors that the delisting request was submitted on DATE but that at the ORG ’s first consideration of it a number of GPE were not in a position to accede to the request . Further efforts to obtain delisting are continuing , but this has still not been achieved . So he remains subject to the ORG . In this situation he too is being denied an effective remedy . ”

ORG found unlawful both the order implementing Resolution CARDINAL ( DATE ) in a general counterterrorism context ( “ the Terrorism Order ” ) and the order implementing the ORG and ORG ( “ the ORG Order ” ) . However , it annulled the ORG only in so far as it did not provide for an effective remedy ( see Lord PERSON ’s dissenting opinion on this point ) .

In its judgment of CARDINAL June DATE in the case of NORP v. GPE ( Minister of ORG ) , GPE ’s ORG took the view that the listing procedure of the ORG and ORG was incompatible with the right to an effective remedy . The case concerned a ban on the return to GPE of the applicant , who had NORP and NORP nationality , as a result of the application by GPE of ORG establishing the sanctions regime . The applicant was thus forced to live in the NORP embassy in GPE , GPE , fearing possible detention and torture should he leave this sanctuary .

PERSON , who pronounced the lead judgment in the case , stated in particular :

“ CARDINAL . I add my name to those who view the DATE ORG regime as a denial of basic legal remedies and as untenable under the principles of international human rights . There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness . ”

He further observed :

“ DATE . ... it is frightening to learn that a citizen of this or any other country might find himself on the DATE ORG list , based only on suspicion . ”

After reviewing the measures implementing the travel ban on the basis of the ORG and ORG , the judge concluded that the applicant ’s right to enter GPE had been breached , contrary to the provisions of LAW ( see paragraphs CARDINAL et seq . of the judgment ) .


Mr PERSON was born on DATE in GPE and has NORP nationality . He came to GPE in DATE and lived there continuously until his deportation . His parents and his CARDINAL brothers and sisters reside in GPE . CARDINAL of his brothers and sisters were born there . He claims that he lived with a woman of NORP nationality ( Miss PERSON ) , whose child , born on DATE , he formally recognised on DATE .

ORG The applicant was convicted on a number of occasions . On DATE he was sentenced to CARDINAL months’ imprisonment , CARDINAL of which were suspended , for burglary . On DATE he was sentenced to CARDINAL months’ imprisonment for an assault resulting in the victim ’s not being fit for work for DATE . On DATE he was fined MONEY for driving without a licence and without insurance and on DATE he was sentenced to CARDINAL years’ imprisonment for living on the earnings of prostitution with aggravating circumstances .

ORG On DATE the Minister of the ORG issued an order for Mr GPE ’s deportation worded a follows :

" ... Having regard to sections DATE and CARDINAL of Ordinance no . CARDINAL of DATE , as amended , concerning the conditions of entry and residence ofaliens in GPE ;

Having regard to Decree no . CARDINAL - CARDINAL of CARDINAL DATE ;

Whereas PERSON ... committed the followingoffences : on CARDINAL DATE a burglary ; onCARDINAL DATE an assault on the person of arepresentative of the public authority who was performinghis duties ; on DATE an assault ; and from CARDINAL DATE to DATE , acts amounting toliving on the earnings of prostitution with aggravating circumstances ;

Whereas on account of his behaviour the presence of thisforeign national on NORP territory represents a threatto public order ;

... IT IS HEREBY ORDERED AS FOLLOWS

Article CARDINAL : the above - mentioned person is enjoined to leave the NORP territory ;

LAW the Prefect of Police and the prefects are instructed to serve and execute this order .

ORG The deportation order was executed on CARDINAL DATE but the applicant returned to GPE and lived there illegally .

ORG On DATE ORG dismissed the applicant ’s appeal alleging that the deportation order was an abuse of authority .

ORG On DATE the applicant applied to the Minister of the Interior to have the deportation order rescinded . His application was rejected on CARDINAL DATE on the following grounds :

I hereby inform you that the deportation order was madeby the competent authorities in view of the nature andincreasing gravity of the offences committed by theapplicant . The threat to public order was also assessedwith reference to Mr GPE ’s general conduct as wasrequired under the circular on the implementation of theLaw of CARDINAL September CARDINAL .

In addition , ORG ] confirmed the deportation order on DATE .

It is accordingly impossible for me to grant your request . The deportation order of DATE must therefore remain in force .

ORG On DATE Mr Boughanemi lodged with ORG an application for judicial review of the Minister ’s decision refusing to rescind the deportation order . In its judgment of CARDINAL DATE dismissing the application , the PERSON court gave the following grounds :

Under section CARDINAL of the Ordinance of DATE , asamended in particular by GPE DATE to the provisions of LAW maybe decided by order of the Minister of the ORG if analien ’s presence on NORP territory constitutes aserious threat to public order . The deportation ordermay be rescinded at any time by the Minister of theInterior ... ’ Although section CARDINAL , as amended by theaforementioned PERSON , prohibits the Minister , save in casesof extreme urgency as provided for in section CARDINAL , fromordering the deportation of certain categories of alien , that provision can not be usefully invoked to support anapplication to have a previously issued deportation orderrescinded . It is exclusively a matter for the PERSON whom such an application has been made to assesspursuant to LAW whether the presence of the personconcerned on NORP territory constitutes at the date onwhich he gives his decision a serious threat to public order .

In the first place , it follows from the foregoing thatthe submission based on the fact that Mr Boughanemi haslived continuously in GPE since DATE and thatfor that reason , in accordance with the new section CARDINAL ofthe Ordinance of DATE , a deportation ordercould not be made against him after the coming intooperation of the PERSON of DATE is without force inregard to the decision refusing to rescind thedeportation order made against him on DATE . PERSON he rely on the principle that more lenient criminallegislation should be applied with retrospective effect .

Secondly , an appeal brought against the deportationdecision of CARDINAL DATE alleging that it was an abuse ofauthority was dismissed as unfounded by a judgment ofthis court on DATE . That decision carries withit the authority of res judicata , which precludesMr Boughanemi from pleading the unlawfulness of thatmeasure in support of his submissions directed againstthe refusal to rescind it .

Finally , the documents in the file show that theMinister , who took his decision in the light of all thecircumstances of the case , did not make a manifest errorof assessment in concluding , on the basis of the actsthat gave rise to the applicant ’s being arrested andprosecuted on several occasions DATE andaspects of PERSON conduct , that the latter’spresence on NORP territory constituted a serious threatto public order and in refusing on those grounds torescind the deportation order made against him .

It follows from all the foregoing considerations that the applicant ’s submission that the impugned decision isvitiated as an abuse of authority is unfounded and hisapplication to have it set aside on that ground must fail . "

ORG On DATE the ORG d’Etat dismissed the applicant ’s appeal lodged on DATE . It gave , inter alia , the following reasons :

Although the wording of LAW of the above - mentioned LAW of DATE was amended by the PERSON of DATE , PERSON can not usefully rely on thischange in the legal position in order to plead that the Minister of the ORG was under a duty to rescind thedeportation order issued against him under previouslegislation concerning aliens . It was exclusively amatter for the Minister to whom an application for suchan order to be rescinded has been made to determinewhether , in accordance with section CARDINAL of the Ordinance of DATE as in force at the date of theapplication , the presence of the person concerned PERSON territory represented a serious threat to public order .

It appears from the documents in the file that the Minister , who took his decision in the light of all theevidence in the case , did not make a manifest error ofassessment in finding that the presence in GPE of theappellant , who had committed repeated and increasingly serious offences , including that of living on theearnings of prostitution with aggravating circumstances , still represented , as at DATE , a serious threatto public order . He was therefore entitled to refuse torescind the order for Mr Boughanemi ’s deportation .

In the circumstances of this case , the Minister of the ORG ’s refusal to rescind the deportation order made against PERSON , who returned to GPE and lived there illegally after the execution of that deportationorder , did not interfere with the latter ’s family life toan extent that exceeded what was necessary to preservepublic order . Thus the submission that the refusal torescind the deportation order of CARDINAL DATE infringed the right to respect for family life guaranteed PERSON ( article CARDINAL) of ORG must fail .

Mr Boughanemi was arrested on DATE for breach of the deportation order and was sentenced to CARDINAL months’ imprisonment . On DATE he was deported to GPE .

ORG On DATE the ORG received from Miss PERSON ( see paragraph CARDINAL above ) the following letter , dated DATE :

" As partner ( concubine ) and mother of the child ofMr PERSON , I wish by this letter to draw yourattention to our situation .

The difficulty of getting his identity papers back makesit impossible for us to lead a normal life .

There is also the fact that , as I am myself unemployed , my financial circumstances make it impossible for me togive him either moral or financial support . What ismore , I am his partner and , despite all his efforts to berecognised as a normal citizen , it is unfortunately impossible for us to live together . Faced with all the problems raised by his getting administrative recognition , I write to you in the hope that you willtake account of the fact that both he and I are acting ingood faith .

On DATE Miss PERSON made the following statement to an officer of the criminal investigation department ( extracts from the police report ) :

I do know ORG . I ’ve known him for DATE . I lived with him from DATE till DATE when we separated because of a disagreement .

When we lived together he was out of work . He lived at my place ... I paid for his keep .

He never gave me any money because he did n’t have any .

He did n’t recognise my son until DATE , because tobegin with I was n’t too keen on the idea .

So far he has never sent any money for our child . PERSON me from time to time to find out if there is anynews about his application to ORG . I do n’t intend to live with him if he comes back .

I have nothing else to say on this matter .

Deportation is governed by Ordinance no . CARDINAL - CARDINAL of DATE concerning the conditions of entry and residence of aliens in GPE , as amended by , inter alia , the following Laws : no . CARDINAL of DATE ; no . CARDINAL - CARDINAL of DATE ; no . CARDINAL - CARDINAL of DATE ; no . CARDINAL of DATE ; and no . CARDINAL of DATE .

ORG According to the first paragraph of LAW of the Ordinance , as amended by LAW , " subject to the provisions of LAW , deportation may be decided by order of the Minister of the ORG if an alien ’s presence on NORP territory constitutes a threat to public order " .

The PERSON of DATE restored the wording that this section had contained prior to the PERSON of DATE , to the effect that deportation might only be ordered in the event of a " serious " threat to public order .

Section CARDINAL , as amended by LAW DATE and DATE , stated :

" PERSON as provided for in section CARDINAL may be orderedonly where the following conditions are satisfied :

CARDINAL The alien must be given advance notice in accordancewith the conditions laid down in a decree of the Conseild’Etat ;

CARDINAL The alien shall be summoned to be interviewed by aboard which is convened by the prefect and is composed asfollows :

the President of the tribunal de grande instance of theadministrative capital of the département or a judge delegated by him , chairman ;

a judicial officer ( magistrat ) designated by the generalassembly of the tribunal de grande instance of theadministrative capital of the département ; and

an administrative court judge .

The head of the GPE department at the prefectureshall act as rapporteur ; the director of health andsocial affairs of the département or his representativeshall be heard by the board . They shall not attend theboard ’s deliberations .

The summons , which must be served on the alien at leasteight DATE before the board ’s meeting , shall inform himthat he has the right to be assisted by a lawyer or byany other person of his choice and to be heard with thehelp of an interpreter .

The alien may request legal aid in accordance with theconditions laid down in PERSON no . CARDINAL of DATE CARDINAL.This possibility shall be mentioned in the summons . ORG grant of legal aid may be decided by thechairman of the board .

The board ’s hearing shall be public . The chairman shallensure the proper conduct of the proceedings . All theorders made by him to that end must be executedimmediately . Before the board the alien may put forwardall the reasons that militate against his deportation . A report recording the alien ’s statements shall betransmitted , together with the board ’s opinion , to NORP of the ORG , who shall give a decision . ORG opinion shall also be communicated to the person concerned . "

The PERSON of DATE inserted , inter alia , the following provision :

" CARDINAL If the board issues an opinion opposing deportation , a deportation order may not be made . "

The latter provision was however repealed by LAW DATE .

Section CARDINAL of the Ordinance , as amended by the Law of DATE , subsequently amended by the PERSON of DATE , provided :

" A deportation order made under LAW may not be issued against the following persons :

CARDINAL A minor alien DATE , unless adeportation or removal order has been made against thepersons who actually provide for his or her maintenanceand no other person lawfully residing in GPE is in aposition to so provide for him or her ; in the case of aminor alien under DATE , the opinion of thedeportation board of the département must be in favour ofdeportation ;

CARDINAL An alien , who has been married for DATE whose spouse is a NORP national , provided that CARDINAL spouses genuinely live together ;

CARDINAL An alien who is the father or the mother of a ORG residing in GPE provided that he or sheexercises parental rights , even only on a partial basis , in respect of the child or actually provides for him orher ;

CARDINAL An alien who proves by any means that he hashabitually resided in GPE since the age of CARDINAL oryounger or for over DATE and who has not beenconvicted with final effect of an offence for which he orshe has been sentenced to a non - suspended term ofimprisonment of DATE or a suspended termof DATE or several terms of imprisonment whoseaggregate is at least equal to such periods ;

CARDINAL An alien who is in receipt of an industrial accidentdisability pension paid by a NORP institution where hisor her permanent and partial disability is PERCENT . "

The Law of DATE amended those provisions , restoring to a large extent the wording in force prior to the PERSON of DATE :

" A deportation order made under LAW may not beissued against the following persons :

CARDINAL A minor alien DATE ;

CARDINAL An alien who proves by any means that he hashabitually resided in GPE since the age of CARDINAL oryounger ;

CARDINAL An alien who proves by any means that he hashabitually resided in GPE for CARDINAL yearsor an alien who has lawfully resided in GPE for morethan DATE ;

CARDINAL An alien , who has been married for CARDINAL monthsand whose spouse is a NORP national ;

CARDINAL An alien who is in receipt of an industrial accidentor occupational disability pension paid by a ORG where his or her permanent disability is atleast PERCENT ;

CARDINAL An alien residing lawfully in GPE by virtue of oneof the residence permits provided for in this PERSON in the international agreements , who has not beensentenced with final effect to a non - suspended term ofimprisonment of DATE or more .

The same law added a paragraph , which was worded as follows :

" The aliens referred to in sub - paragraphs CARDINAL maynot be the subject of a removal order made undersection CARDINAL of this GPE or of an exclusion ordermade by a court under LAW of this LOC them from entering the territory . "

Section CARDINAL was further amended and supplemented by LAW DATE and CARDINAL DATE :

CARDINAL A minor alien DATE ;

CARDINAL An alien who proves by any means that he hashabitually resided in GPE since DATE oryounger ;

CARDINAL An alien who proves by any means that he hashabitually resided in GPE for CARDINAL yearsor an alien who has lawfully resided in GPE for DATE , unless for the whole of this period hehas been in possession of a temporary residence permitbearing the word ‘ ORG ;

CARDINAL An alien , who has been married for DATE whose spouse is a NORP national provided that theyhave not ceased to live together and that the spouse haskept his or her NORP nationality ;

CARDINAL An alien residing lawfully in GPE by virtue of CARDINAL of the residence permits provided for in this PERSON in the international agreements , who has not beensentenced with final effect to a non - suspended term ofimprisonment of DATE or more .

The aliens referred to in sub - paragraphs CARDINAL may notbe the subject of a removal order made under section CARDINALof this Ordinance .

By way of derogation from the provisions of this section , a deportation order under sections CARDINAL and DATE may be madeagainst an alien falling within one of the categorieslisted in sub - paragraphs CARDINAL , CARDINAL , CARDINAL and CARDINAL if he or shehas been sentenced with final effect to a non - suspendedterm of imprisonment of DATE . "

ORG Section CARDINAL of the LAW , as amended by LAW DATE provided :

" In cases of extreme urgency and by way of derogation from sections CARDINAL , deportation may be ordered where the alien ’s presence on NORP territory constitutes a particularly serious threat to public order

This procedure may not however be applied in respect ofminors under DATE . "

Section CARDINAL was subsequently amended by the Law of DATE and then by the PERSON of DATE and now reads as follows :

" PERSON may be ordered :

( a ) in cases of extreme urgency , by way of derogationfrom section CARDINAL ( CARDINAL ) ;

( b ) where such a measure constitutes an absolutenecessity for the security of the ORG and publicsafety , by way of derogation from section CARDINAL .

In cases of extreme urgency and where the measure is anabsolute necessity for the security of the ORG andpublic safety , deportation may be ordered by way ofderogation from sections CARDINAL ( CARDINAL ) and CARDINAL .

The procedures provided for in this section may not beapplied in respect of a minor alien under CARDINAL . "

ORG The second paragraph of section CARDINAL of the GPE , as amended by LAW , provided :

" The deportation order may at any time be rescinded bythe Minister of the ORG . Where the application foran order to be rescinded is submitted on the expiry of aperiod of DATE from the actual execution of theorder , it may be rejected only after the opinion of theboard provided for in section DATE has been sought . The person concerned may be represented before the board . "

The wording that applied prior to the PERSON of DATE was restored by the Law of DATE : the Minister was required to abide by the opinion expressed by the board .

However , this provision was again amended by LAW DATE to the effect that the board ’s opinion must compulsorily be sought , but it no longer binds the Minister .

Section CARDINAL of the GPE , as amended by LAW , provided :

" Any alien who has evaded or attempted to evade theexecution of a deportation order or a removal order orwho , having been deported or being subject to aprohibition on entering the territory , re - enters the national territory without an authorisation shall beliable to a term of imprisonment of from DATE .

The court may in addition issue an order banning a personso convicted from re - entering the territory for a periodnot exceeding DATE .

The ban on re - entering the territory automaticallyentails the convicted person ’s removal from ORG , on completion of his prison sentence whereappropriate . "

ORG The PERSON of DATE states that the same penalty applies to " any alien who has evaded or attempted to evade the execution of a measure refusing him or her entry into GPE " ( the first paragraph as supplemented ) or " who has not submitted to the relevant administrative authority the travel documents making possible the execution of one of the measures referred to in the first paragraph or who , where he or she has no such documents , has failed to communicate the information making it possible to execute such measures " ( new paragraph inserted between the first and second paragraphs ) .