La Corte di Strasburgo opta per una soluzione soffice nel coordinare gli obblighi della Convenzione con quelli derivanti dalle Nazioni Unite : alcune riflessioni a margine della sentenza Al-Dulimi

In Al-Dulimi and Montana Management Inc. v. Switzerland the Grand Chamber of the European Court of Human Rights (ECtHR) held that Switzerland had violated article 6 para.1 of the Convention (ECHR). In the Court’s view, Swiss authorities, while implementing a Security Council resolution imposing the freezing of assets of the applicants, should have verified that UN sanctions listings were not arbitrary (para. 1). The article will first recall the ECtHR line of cases dealing with a potential normative conflict between the obligations under the ECHR and other international obligations (para. 2). Secondly, it will analyze the core reasoning of the decision – i.e. the harmonious interpretation of the Security Council resolution with the ECHR (para. 3). Then, it will compare the soft solution crafted by the Court to the other way-out of the legal dilemma at issue (para. 4). Lastly, some critical points of the decision will be underlined, such as: the inconsistent attitude of the previous ECtHR case law with regard to article 6; the lack of clarification on the content and the scope of the judicial review of sanctions (found in the ‘arbitrariness’ standard); and the way to coordinate the outcome of the domestic judicial review with the (persistent) listing of individuals in the Security Council Sanctions Committee’s blacklist (para. 5). In that regard, we maintain that it would have been more useful if the Court had considered the conduct of Swiss authorities both at the national level and at the international level, namely within the UN and the Security Council Sanctions Committee (para 6).