CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2013

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SWITZERLAND   (Application no. 5809/08)             JUDGMENT       STRASBOURG   26 November 2013     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 21/06/2016     This judgment may be subject to editorial revision. In the case of Al-Dulimi and Montana Management Inc. v.   Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Danutė Jočienė,   Peer Lorenzen,   András Sajó,   Işıl Karakaş,   Nebojša Vučinić,   Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 5809/08) against the Swiss Confederation lodged with the Court on 1 February 2008 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Khalaf M. Al-Dulimi (“the first applicant”), and by Montana Management Inc. (“the second applicant”), a company incorporated under the laws of Panama and having its registered office in Panama, of which the first applicant was formerly the managing director. 2.     The applicants were represented by Mr J.-C. Michel, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, Mr A. Scheidegger, of the European law and international human rights protection unit of the Federal Office of Justice. 3.     The applicants alleged, in particular, that the confiscation of their assets had been ordered in the absence of any procedure complying with Article 6 of the Convention. 4.     On 12 March 2009 notice of the application was given to the Government. It was also decided that the Chamber would examine the admissibility and merits of the application at the same time (Article 29 § 1) and that the case would be given priority (Rule 41 of the Rules of Court). 5.     On 1 February 2011 the Court’s Sections were reorganised. The application was allocated to the Second Section (Article 25 § 1 and Rule 52 § 1). 6.     The parties each submitted written comments on the other’s observations. Observations were also received from the French and United Kingdom Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 and Rule 44 § 2 [as then in force]). 7.     In a decision of 4 November 2010 the Chamber decided to adjourn the examination of the case until the Grand Chamber had delivered its judgment in the case of Nada v. Switzerland ([GC], no. 10593/08, ECHR 2012). 8.     The applicants also requested that their case be heard in public before the Court. The Chamber did not consider it necessary for the discharge of its functions under the Convention to hold a public hearing on the merits of the case (Rule 59 § 3). 9.     On 28 May 2013 the Section expressed its intention to relinquish the case to the Grand Chamber, in accordance with Article 30 of the Convention. In a letter of 18 June 2013 the respondent Government objected to relinquishment. On 17 September 2013 the Chamber took note of the Government’s opposition and continued to examine the case. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1941 and lives in Amman (Jordan). According to the United Nations Security Council, he was head of finance for the Iraqi secret services under the regime of Saddam Hussein. A.     Background to the case 11.     After Iraq invaded Kuwait on 2 August 1990, the United Nations Security Council adopted Resolution 661 (1990) of 6 August 1990 and Resolution 670 (1990) of 25 September 1990, calling upon United Nations member States and non-member States to apply a general embargo against Iraq and on any Kuwaiti resources confiscated by the occupier, together with an embargo on air transport. 12.     On 7 August 1990 the Swiss Federal Council adopted an ordinance providing for economic measures against the Republic of Iraq (the “Iraq Ordinance”; see paragraph 75 below). The applicants alleged that since that date their assets in Switzerland had remained frozen. 13.     On 10 September 2002 Switzerland became a member of the United Nations. 14.     On 22 May 2003 the United Nations Security Council adopted Resolution 1483 (2003), superseding Resolution 661 (1990), among others. Paragraph 23 of Resolution 1483 (2003) reads as follows: “The Security Council ... Decides that all Member States in which there are: (a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or (b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph 22.” [1] 15.     The Iraq Ordinance of 7 August 1990 underwent numerous amendments, in particular on 30 October 2002, to take into account the entry into force of the Federal Law of 22 March 2002 on the application of international sanctions (the Embargo Act, in force since 1   January 2003), and on 28 May 2003, to take account of Resolution 1483 (2003). Article 2 of the Iraq Ordinance provided in substance for the freezing of assets and economic resources belonging to the former Iraqi Government, to senior officials thereof and to companies or bodies under the control or management of that Government or its officials. Pursuant to the Ordinance, the Federal Department for Economic Affairs was responsible for establishing a list of those assets and resources based on the United Nations data (Article 2, paragraph 2, of the Iraq Ordinance). 16.     On 24 November 2003 a Sanctions Committee (the “1518 Committee”), created by Security Council Resolution 1518 (2003), and consisting of all member States, was given the task of listing the senior officials of the previous Iraqi regime and their immediate family members, together with any entities owned or controlled by them or by persons acting on their behalf or at their direction, in accordance with paragraph 23 of Resolution 1483 (2003). For that purpose, the committee was to keep up to date the lists of individuals and entities already compiled by the former Sanctions Committee, created under Resolution   661 (1990), which had been adopted during the armed conflict between Iraq and Kuwait. 17.     On 26 April 2004 the 1518 Committee added to the list of individuals and entities, respectively, the second applicant, which had its registered office in Geneva, and the first applicant, who was the managing director of the applicant company. 18.     On 12 May 2004 the applicants’ names were added to the list of individuals, legal entities, groups and organisations concerned by the national measures under Article 2 of the Iraq Ordinance. 19.     On 18 May 2004 the Federal Council also adopted, under Article   184, paragraph 3, of the Federal Constitution, an ordinance on the confiscation of the frozen Iraqi assets and economic resources and their transfer to the Development Fund for Iraq (the “Confiscation Ordinance”; see paragraph 76 below). That Ordinance was initially valid until 30 June 2010 and was then extended until 30 June 2013. 20.     The applicants indicated that a confiscation procedure had been initiated in respect of their assets in Switzerland, which had been frozen since 7   August 1990, by the Federal Department for Economic Affairs, when the Confiscation Ordinance entered into force on 18   May   2004. 21.     The first applicant, wishing to apply directly to the 1518 Committee for the removal of his name from the list, called upon the Federal Department for Economic Affairs, in a letter of 25 August 2004, to suspend the confiscation procedure in respect of his assets. 22.     The Swiss Government, in a letter of 5 November 2004 to the Chair of the Sanctions Committee, through its Permanent Representative to the United Nations, supported that application. 23.     In a letter of 3 December 2004, the Chair of the Sanctions Committee informed the applicants that the committee had examined their application and that it was under consideration. He asked them to send supporting documents and any additional information that might substantiate the application. 24.     The first applicant replied in a letter of 21 January 2005 that he wished to give oral evidence to the Sanctions Committee. 25.     As the application remained without effect, the applicants sought, in a letter of 1 September 2005, the continuation of the confiscation procedure in Switzerland. 26.     On 22 May 2006 the Federal Department for Economic Affairs sent the applicants a draft decision on the confiscation and transfer of the funds that were deposited in their names in Geneva. 27.     In observations of 22 June 2006 the applicants challenged that decision. 28.     In a decision of 16 November 2006 addressed to the applicants’ representative, the Federal Department for Economic Affairs ordered the confiscation of the assets, representing sums in Swiss francs (CHF) that were specific to each applicant. It stated the conditions in which the sums would be transferred, within ninety days from the entry into force of the decision, to the bank account of the Development Fund for Iraq. 29.     In support of its decision, the Federal Department for Economic Affairs observed that the applicants’ names appeared on the lists of individuals and entities established by the Sanctions Committee, that Switzerland was bound by the resolutions of the Security Council and that it could only delete a name from the annex to the Iraq Ordinance where the relevant decision had been taken by the Sanctions Committee. 30.     The Federal Department further observed that the applicants had discontinued their discussions with the Sanctions Committee. It indicated that an administrative-law appeal could be lodged against its decision before the Federal Court. 31.     On 19 December 2006 the Security Council, being committed to ensuring that fair and clear procedures existed for placing individuals and entities on sanctions lists, including those of the 1518 Committee, and for removing their names, as well as for granting humanitarian exemptions, adopted Resolution 1730 (2006) (see paragraph 48 below), which created a delisting procedure. 32.     The applicants lodged three administrative-law appeals before the Federal Court, one in respect of the first applicant and two in respect of the second applicant, against the Federal Department’s decision of 16   November   2006. The appeals concerned the confiscation of the assets frozen in Switzerland that were deposited in bank X and bank Y. 33.     In their appeals, the applicants sought the annulment of the decision of 16 November 2006. In support of their submissions, they argued that the confiscation of their assets breached the property right guaranteed by Article   26 of the Federal Constitution and that the procedure leading to the addition of their names to the lists annexed to Resolution 1483 (2003) and to the Iraq Ordinance had breached the basic procedural safeguards enshrined in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) of 16 December 1966, in Articles 6 and 13 of the Convention and in Articles   29 to 32 of the Federal Constitution. The applicants took the view that the Federal Court, and before it the Federal Department for Economic Affairs, had jurisdiction to review the legality and the conformity with the Convention and the ICCPR of the 1518 Committee’s decision to add their names to the list provided for in paragraph 23 (b) of Resolution 1483 (2003). They submitted that there was no incompatibility or conflict between the obligations under the Charter and the fundamental rights guaranteed by the Convention or the ICCPR. 34.     The Federal Department for Economic Affairs submitted that the appeals should be dismissed. 35.     In a decision of 22 March 2007, the President of the Second Public-Law Division of the Federal Court ordered a second round of pleadings. The applicants filed a rejoinder on 27 April 2007 and the Federal Department for Economic Affairs a surrejoinder on 12 June 2007. The parties maintained their submissions. 36.     On 10 December 2007, spontaneously, the applicants filed additional observations limited to an assessment of the scope of a judgment of the Federal Court dated 14 November 2007 (in the case which ultimately led to the Nada v. Switzerland judgment, cited above) concerning the merits of their own appeals. They further sought the opportunity to present oral argument on that point. A copy of these observations was sent to the Federal Department for Economic Affairs for information purposes. 37.     On 18 January 2008 the applicants wrote to the Federal Court drawing its attention to the opinion delivered on 16   January 2008 by the Advocate General in the case of Yassin Abdullah Kadi , then pending before the Court of Justice of the European Communities (which on 1 December 2009 became known as the Court of Justice of the European Union), and reiterating their request of 10 December 2007 to present oral argument. B.     Federal Court judgments of 23 January 2008 38.     In three almost identical judgments, the Federal Court dismissed the appeals on the merits. The relevant parts of those judgments read as follows (unless otherwise stated, this is the text of the judgment concerning the first applicant): “5.1     On 10 September 2002 Switzerland became a member of the United Nations and ratified the United Nations Charter of 26 June 1945 (the Charter; RS   0.120). Article 24, paragraph 1, of the Charter provides that, in order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Under Article 25 of the Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter. The binding nature of Security Council decisions concerning measures taken in accordance with Articles 39, 41 and 42 to maintain or restore international peace and security also stems from Article   48, paragraph 2, of the Charter, which provides that such decisions must be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The mandatory effect of Security Council decisions is the basis for the similar effect of decisions taken by subsidiary organs such as the Sanctions Committees (see Eric Suy and Nicolas Angelet in Jean-Pierre Cot, Alain Pellet and Mathias Forteau, La Charte des Nations Unies, commentaire article par article , 3rd edition, Economica 2005, Article 25, pp. 915 et seq.). 5.2     It was under Chapter VII (Articles 39 to 51) of the Charter that the Security Council adopted Resolution 1483 (2003): having regard to the situation in Iraq, the Security Council considered that it had to take measures ‘to maintain or restore international peace and security’. Those measures included, in particular, the decisions stated in paragraphs 19 and 23 of the Resolution: in particular, the Security Council decided that member States were required to freeze and transfer to the Development Fund for Iraq the assets described in paragraph 23 of the Resolution. It also decided that Sanctions Committee 1518 would have the task of identifying the individuals and entities referred to in paragraph 23. 5.3     At the outset, Sanctions Committee 1518 published a set of guidelines for the application of paragraphs 19 and 23 of Resolution 1483 (2003) (see http://www.un.org/french/sc/committees/1518/indexshtml); they described the manner in which the lists of individuals and entities would be drawn up and disseminated. In that document the Committee requests as follows: ‘The names of individuals and entities proposed for identification should be accompanied by, to the extent possible, a narrative description of the information that forms the basis or justification for taking action pursuant to resolution 1483 (2003)’. The procedure is then described in the following terms. The Committee will reach decisions by consensus. If consensus cannot be reached, the Chairman should undertake such further consultations as may facilitate agreement. If after these consultations, consensus still cannot be reached, the matter may be submitted to the Security Council. Given the specific nature of the information, the Chairman may encourage bilateral exchanges between interested member States in order to clarify the issue prior to a decision. Where the Committee agrees, decisions may be taken by a written procedure. In such cases, the Chairman will circulate to all members of the Committee the proposed decision of the Committee, under the ‘no-objection’ procedure within three working days. If no objection is received within such a period, the decision will be deemed adopted. 5.4     Company S. SA and [the first applicant] appear on the lists of entities and individuals drawn up by Sanctions Committee 1518 under number ... for the company and ... for the latter, on the ground that its managing director is [the first applicant], the head of finance, at the time, of the Iraqi secret services, who also controls the companies H., K. SA and M. [the second applicant], three entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).” The two judgments concerning the second applicant: “5.4 The [second applicant] appears on the lists of entities and individuals drawn up by Sanctions Committee 1518 under number ..., on the ground that its managing director is [the first applicant], who also controls H. et K. SA, two entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).” The judgment concerning the first applicant (continued): “The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003). 6.1     Since 28 November 1974 Switzerland has been a Contracting Party to the European Convention on Human Rights. However, even though it signed, on 19 May 1976, the additional Protocol No. 1 of 20 March 1952, which guarantees in particular the protection of property (Article 1), it has not ratified it to date. That Protocol has not therefore entered into force in respect of Switzerland. Consequently, in Switzerland, the protection of property is guaranteed by the Federal Constitution alone (Article 26). Under Article 1 ECHR, the High Contracting Parties undertake to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention (Articles 2 to 18 ECHR). Article 6 § 1 ECHR, in particular, grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of an individual’s civil rights and obligations or of any criminal charge against him or her. Under Article 13 ECHR, everyone whose rights and freedoms as set forth in the Convention are violated is entitled to an effective remedy before a national authority. ... 6.4     Even though he relies on the guarantee of the protection of property and points out that restrictions on property are possible only under the conditions laid down in Article 36 of the Constitution, the appellant is in reality only complaining of a breach of procedural safeguards and not of a violation of Articles 26 and 36 of the Constitution. He observes that restrictions on the enjoyment of his possessions, such as the confiscation of his property, can be ordered only after due process under domestic law, including a substantive examination of the legal conditions for such restriction, while ensuring the observance of fundamental rights, basic procedural safeguards, and defence rights, or the right to be heard, and in compliance with the requirement to state reasons, the prohibition of any denial of justice, and the equality of arms and adversarial principles (see appellant’s observations, ch. 76-80). He complains that the reasons for his inclusion on the list of Sanctions Committee   1518 were never brought to his knowledge and that he was not able to comment on them or defend himself adversarially before an independent and impartial judicial body, this not being disputed – quite rightly – by the Department for Economic Affairs in the light of the listing procedure (see above, point 4.3). In this connection, the appellant is of the opinion that Switzerland is required to apply Resolution   1483 (2003), but also the provisions of the European Convention on Human Rights and those of the International Covenant on Civil and Political Rights concerning procedural safeguards; he argues that there is no contradiction between those various obligations, and that for this reason the decision appealed against should be quashed and the matter referred back for fresh confiscation proceedings before the Swiss courts, which would examine the merits of the measure in compliance with basic procedural safeguards. It is therefore appropriate to examine the procedural safeguards that Switzerland is required to comply with, having regard to its obligations under the Charter and Resolution   1483 (2003), in the proceedings initiated by the Federal Department for Economic Affairs leading to the confiscation of the appellant’s assets. 7.1     Pursuant to Article 5 paragraph 4, of the Constitution, the Confederation and the Cantons comply with international law. Under Article 190 of the Constitution, the Federal Court and the other authorities are required to apply federal laws and international law. International law, within the meaning of Article 190 of the Constitution, is defined by jurisprudence as the entire body of international law that is binding on Switzerland, comprising international agreements, customary international law, the general rules of the law of nations and the decisions of international organisations that have mandatory effect in Switzerland. Accordingly, the Federal Court is in principle required to comply with the provisions of the Charter, United Nations Security Council resolutions, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. 7.2     Article 190 of the Constitution does not, however, provide for any rule of conflict between the various norms of international law that are equally binding on Switzerland. However, under Article 103 of the Charter, in the event of a conflict between the obligations of the member States of the United Nations under the Charter and their obligations under any other international agreement, their Charter obligations prevail. This primacy is also enshrined in Article 30 § 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“VCLT”; RS 0.111; entered into force in respect of Switzerland on 6 June 1990). According to legal opinion and case-law, this is an absolute and general primacy which applies regardless of the nature of the treaty which is in conflict with the Charter, whether it is bilateral or multilateral, or whether the treaty entered into force before or after the entry into force of the Charter. The primacy is granted not only to the obligations expressly laid down in the Charter, but also, according to the International Court of Justice, to those that stem from binding decisions of United Nations organs, in particular the binding decisions taken by the Security Council pursuant to Article 25 of the Charter (see the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie , ICJ Reports 1992, p. 15, paragraph 39; see also Felipe Paolillo in Les conventions de Vienne sur le droit des traités, commentaire article par article , Olivier Corten and Pierre Klein (eds), Bruylant, Brussels 2006, no. 33 on Article 30 VCLT and the numerous references cited). This primacy does not render null and void the treaty which is in conflict with the Charter obligations, but merely suspends the treaty for as long as the conflict remains (see Eric Suy in Les conventions de Vienne sur le droit des traités , op. cit. , no. 15 on Article 53 VCLT and the references cited). Moreover, neither the European Convention on Human Rights nor the International Covenant on Civil and Political Rights contains clauses which would, in themselves or by virtue of another treaty, prevail over the conflict clause that is enshrined in both Article 103 of the Charter and Article 30 § 1 VCLT. Article 46 ICCPR certainly provides that ‘[n]othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant’. However, according to legal opinion, this provision simply means that the International Covenant on Civil and Political Rights cannot hinder the task of the political organs and specialised agencies which have been entrusted under the Charter with duties relating to human rights (see Manfred Nowak, U.N. Covenant on civil and political Rights, CCPR   Commentary , Kehl 2005, no. 3, on Article 46 ICCPR, p. 798). It does not therefore establish any hierarchy between the decisions of the Security Council and the rights guaranteed by the ICCPR – the United Nations as such is not a party to the latter in any event. It cannot be concluded that the International Covenant on Civil and Political Rights prevails over Charter obligations. 7.3     Consequently, in the event of any conflict between Switzerland’s obligations under the Charter and those deriving from the European Convention on Human Rights or the International Covenant on Civil and Political Rights, the Charter obligations in principle prevail over the latter, as the appellant has not in fact denied. He takes the view, however, that this principle is not absolute. In his opinion, the obligations arising from the Charter, in particular those imposed by Resolution 1483 (2003), lose their binding character if they contravene the rules of jus cogens . 8.     The appellant argues that the procedural safeguards under Article 14 ICCPR and Article 6 ECHR constitute jus cogens norms. In breaching those safeguards, Resolution 1483 (2003) should lose its binding effect. 8.1     Under the heading ‘ Treaties conflicting with a peremptory norm of general international law ( jus cogens ) ’, Article 53 VCLT provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, that is, a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Moreover, Article 64 VCLT provides that, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Article 71 VCLT governs the consequences of the invalidity of a treaty in such cases. 8.2     Article 53 VCLT does not contain any example of peremptory norm of general international law (Report of the International Law Commission, Commentary on Art. 50, ILC Yearbook 1966 II, pp. 269 et seq.). The words ‘by the international community of States as a whole’ do not mean that a norm must be accepted and recognised as peremptory by States unanimously. A significant majority is sufficient. By way of example, the norms concerning the prohibition of the use of force, slavery, genocide, piracy, unequal treaties and racial discrimination are generally cited (see Eric Suy, op. cit. , no. 12 on Article 53 VCLT, p. 1912; Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international public , 7th edition, LGDJ 2002, no. 127, pp.   205 et seq.; and Joe Verhoeven, Droit international public , Larcier 2000, pp. 341 et seq.). This list of examples does not include the rights deriving from Article 14 ICCPR and Article 6 ECHR, which are relied upon by the appellant. Their mere recognition by the International Covenant on Civil and Political Rights and the European Convention on Human Rights does not go so far as making them peremptory norms of general international law. It transpires, moreover, from the preparatory work in respect of Article 53 VCLT and the wording of that provision that in principle there can be no regional jus cogens norms (see Eric Suy, op. cit. , no. 9 on Article 53 VCLT, p. 1910; this is a controversial matter in legal opinion, see inter alia : Eva Kornicker, Ius cogens und Umweltvölkerrecht , Thesis Basle 1997, pp. 62 et seq. and the numerous references cited therein). 8.3     It is true that, in the event of a public emergency which threatens the life of the nation, Article 4, paragraphs 1 and 2, ICCPR authorises, under certain conditions, measures that derogate from the obligations under the Covenant, except for those deriving from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 (right to life, prohibition of torture, prohibition of slavery, prohibition of imprisonment on the ground of inability to fulfil a contractual obligation, prohibition of retrospective criminal legislation, recognition of legal personality, freedom of thought, conscience and religion). Article 15, paragraphs 1 and 2, ECHR also contain a public emergency clause permitting derogation from Convention obligations, similarly excluding any derogation from Articles 2, 3, 4 (paragraph 1) and 7 (right to life, prohibition of torture, prohibition of slavery, no punishment without law). Some authors take the view that the rights and prohibitions listed in Article 4, paragraph 2, ICCPR and Article 15, paragraph   2, ECHR correspond to the core human rights and could therefore be regarded as peremptory norms of international law (see Stefan Oeter, ‘Ius cogens und der Schutz der Menschenrechte’, in Liber amicorum Luzius Wildhaber 2007, pp. 499 et seq. and pp. 507 et seq.); for other authors the provisions merely point in that direction (see Eva Kornicker, op. cit. , pp. 58 et seq.). The latter opinion seems to correspond to that of the (former) Commission on Human Rights, which found that the list of rights from which Article 4, paragraph 2, ICCPR authorised no derogation might admittedly be linked, but not assimilated, to the question whether certain human rights corresponded to peremptory norms of general international law (General Comments 29/72 of 24 July 2001 based on Article 40, paragraph 4, ICCPR, ch. 11, in Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary , Kehl 2005, pp. 1145 et seq. and 1149). In the present case it is not necessary to settle this question in so far as Article 14 ICCPR and Article 6 ECHR do not, in any event, appear in the lists given in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR. 8.4     Consequently, contrary to what the appellant has claimed, neither the fundamental procedural safeguards, nor the right to an effective remedy, under Articles 6 and 13 ECHR and Article 14 ICCPR, have per se the nature of peremptory norms of general international law ( jus cogens ), in particular in the context of the confiscation procedure affecting the appellant’s property (see, to the same effect, the judgment of the Swiss Federal Court no. 1A.45/2007 of 14 November 2007 in the case of Nada v. DFE , point 7.3; judgment of the Court of First Instance of the European Communities, 21 September 2005, Yusuf and Al Barakaat International Foundation v. Council and Commission , T-306/01 Reports 2005 II, p. 3533, paragraphs 307 and 341; judgment of the Court of First Instance of the European Communities, 21 September 2005, Kadi v. Council and Commission , T-315/01 Reports 2005 II p. 3649, paragraphs 268 and 286; judgment of the Court of First Instance of the European Communities, 12   July   2006, Ayadi v. Council , T-253/02 Reports 2006 II p. 2139, paragraph 116; judgment of the Court of First Instance of the European Communities, 12   July   2006, Hassan v. Council and Commission , T-49/04 Reports 2006 II p. 52, paragraph 92). As to the rights guaranteed by Articles 29 et seq. of the Constitution, this is a matter of domestic law which cannot constitute jus cogens or hinder the implementation by Switzerland of Resolution 1483 (2003). 9.     According to the appellant, Switzerland should have sufficient latitude, even in the light of its obligations vis-à-vis the Security Council, to fulfil its duties under Article 14 ICCPR and Article 6 ECHR. In his view it is necessary to distinguish between the question of the deletion of his name from the list of Sanctions Committee 1518 and that of the confiscation of the frozen assets: the question of confiscation could be dealt with in fair proceedings without contravening the Charter obligations. 9.1     That opinion cannot be upheld. The description of the measures (freezing of funds or other financial assets, immediate transfer thereof to the Development Fund for Iraq), of the individuals and entities concerned (previous Iraqi government, Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction), and of the mandate given to Sanctions Committee 1518 (to enumerate the individuals and entities mentioned in paragraph 23), is detailed and leaves no room for interpretation. Similarly, the list of individuals and entities drawn up by Sanctions Committee 1518 is not indicative in nature. It is not a matter of deciding whether the appellant’s name should be, or is legitimately, included on that list, it can only be observed that his name does appear on the list in question, which must be transposed into Swiss domestic law. In asserting that it should be possible to deal separately with the question of the confiscation of his assets, the appellant loses sight of the fact that the measures imposed on member States include the immediate transfer of the frozen assets to the Development Fund for Iraq. This order does not call for any interpretation, nor does it grant any latitude in the result that it requires of member States as to the treatment of the frozen assets of persons who, like the appellant, are included in particular on the list of Sanctions Committee 1518. Being clearly ascertained, those assets must be transferred to the Development Fund for Iraq. From that perspective, the present case differs from a case examined by the Court of First Instance of the European Communities, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union . It concerned Resolution 1373 (2001) of 28   September 2001 laying down strategies to combat terrorism, which required the member States of the United Nations – in that case the European Community – to identify individuals, groups and entities whose funds had to be frozen, because no list of the latter had been forthcoming. The Court of First Instance found that procedural safeguards had to be observed in the keeping of such a list (judgment of the Court of First Instance of the European Communities, 12 December 2006, Organisation des Modjahedines du peuple d’Iran v. Council , T-228/02, not yet reported). 9.2     In those circumstances, contrary to what the appellant has claimed, the implementation of Resolution 1483 (2003) requires Switzerland to adhere strictly to the measures introduced and to the decisions of Sanctions Committee 1518, which, unless found by the Security Council to be in breach of jus cogens norms, does not leave any room, even on the grounds of ensuring the procedural safeguards provided for in the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the Swiss Constitution, for an examination of the procedure by which the appellant’s name was added to the list issued by Sanctions Committee 1518, or for verification of the justification for such addition. 10.     The appellant further argued that Article 4 of the Confiscation Ordinance granted the Federal Court full jurisdiction to deal with the various aspects of the matter, enabling it to find that the authority below had failed to ascertain the merits of the confiscation of his assets or, in other words, that the authority had wrongly accepted their confiscation solely on the basis that his name appeared on the list annexed to Resolution 1483 (2003), without remedying the breach of his procedural rights under, inter alia , Articles 29 et seq. of the Constitution. 10.1     According to the foregoing considerations, Article 4 of the Confiscation Ordinance cannot authorise the Federal Court, any more than the authority below, to verify whether the appellant’s inclusion on the list issued by Sanctions Committee 1518 complied with the procedural safeguards of Article 14 ICCPR, Article 6 ECHR and Article 29 et seq. of the Constitution. With the exception of an examination of a possible breach of jus cogens norms, as shown above, Switzerland is thus not authorised to scrutinise the validity of Security Council decisions, and in particular that of Resolution   1483 (2003), not even in terms of compliance with procedural safeguards, or to provide redress for any defects in such decisions. For that could have the effect of depriving Article 25 of the Charter of any effectiveness, as would be the case if the appellant’s frozen assets were not confiscated and transferred to the Development Fund for Iraq (see Eric Suy and Nicolas Angelet in La Charte des Nations Unies, Commentaire article par article , Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), 3rd edition, Economica 2003, Art. 25, p. 917). 10.2.     However, with that reservation, Switzerland is free to choose how it transposes into domestic law the obligations arising from Resolution 1483 (2003) and the arrangements for transferring the frozen assets. The Federal Council has made use of this discretion in distinguishing between the measures introduced for the freezing of the assets and those governing the transfer of frozen assets. The Federal Department, for its part, suspended the confiscation procedure at the request of the appellant, who sought to have the matter examined by the Sanctions Committee, and resumed it only upon his express application. With the same reservation, the Federal Council was entitled to guarantee the right of the frozen asset-holders to be heard before the confiscation decision was taken. It was also entitled to make available an administrative-law appeal against such decisions. In the present case, the appellant made full use of his right to be heard because he obtained access to the file of the Federal Department for Economic Affairs, or at least to the relevant bank documents, and had the opportunity to express himself before that authority. He also fully availed himself of the right provided for in Article 4 of the Confiscation Ordinance by lodging the present administrative appeal. As to that matter, falling as it does within the jurisdiction of Switzerland, it should be noted that the applicant has not submitted any complaint of a violation of Articles 26 and 36 of the Constitution in respect of the confiscation procedure (see point 5.4). In a further complaint, lastly, the appellant contended that the refusal to annul the decision of the Federal Department for Economic Affairs of 16 November 2006 for a breach of procedural safeguards ran counter to the position defended on many occasions by Switzerland, the Federal Council or the Federal Department for Foreign Affairs, asserting an intangible principle of respect for human rights. He argued that this was an ‘indivisible’ position in relation to other Nations which had been negated by the decision of the Federal Department for Economic Affairs of 16 November 2006. 10.3     The appellant seems to be unaware of the meaning that should be given to indivisibility (in the area) of human rights. According to legal opinion, the principle of indivisibility of human rights means that States cannot choose between human rights in order to give priority to some over others. The aim of this principle is to prevent governments from claiming to defend human rights by choosing from the list, as they see fit, those they accept and those they ignore (see Françoise Bouchet-Saulnier, Droits de l’homme, droit humanitaire et justice internationale , Acte Sud 2002, pp. 23 and 27 et seq.). 10.4     In the present case, to the extent that his position can be understood, the appellant is complaining more about Switzerland’s attitude, which he regards as contradictory. This opinion disregards the fact that the positive legal order, as set out above, is mandatory under Article   190 of the Constitution for reasons of legal security. Switzerland cannot, by itself, delete the appellant’s name from the list established by the Sanctions Committee, which has sole competence for that purpose, even if the procedure for that purpose is not fully satisfactory (see judgment 1A.45/2007 of 14 November 2007, point 8.3). Moreover, it is not contradictory for the federal authorities to find the system deficient and yet, as in the present case, to advocate and act on a political level in favour of an intangible respect for human rights, especially in respect of the listing and delisting procedures applied by Sanctions Committee 1518. Switzerland’s conduct does not therefore breach Articles 26 and 29 et seq. of the Constitution, Articles   6 and 13 ECHR or Article 14 ICCPR, under that head either. 11.     The appeal must accordingly be dismissed. The Federal Court finds, however, that, in the context of Switzerland’s power and freedom of implementation (see point   10.2), the authority below should grant the appellant a brief and final period of time, before implementing the decision of 16 November 2006 – which enters into force with the dismissal of the present appeal – to allow him to apply, should he so wish, to Sanctions Comm