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And also:‘Reaffirming their profound belief in those fundamental freedoms which are thefoundation of justice and peace in the world and are best maintained on the one hand byan effective political democracy and on the other by a common understanding andobservance of the human rights upon which they depend.’196. It emerges from the above quotations that the ECHR is a codification of long-standing, deeprootedconvictions on human rights and democracy. Those convictions pre-date the theUnited Nations itself and the rights in question (including the right of access to the court)that are codified already existed at the founding of the United Nations. That is alsoexpressed, indeed, in the existence of section 29 of the Convention. The argument of theDistrict Court derived from the notion that the United Nations is older than the ECHR isconsequently erroneous. It is on the right of access to the court that the United Nations inpart derives its rationale and reason to exist.197. The District Court gives the appearance in its judgment as if older norms should havepriority over younger norms. That judgment has no foundation and is erroneous, and theDistrict Court also fails to underpin its judgment.198. The limitation that the District Court attaches to Article 6 ECHR on the basis of the fact thatthe United Nations is greater than the countries who are signatories of the ECHR is alsocontrary to the law. That limitation derives from an erroneous notion that the right isdetermined by the size of an organisation. That line of reasoning is the antithesis of theprotection of rights. The necessity for the legal protection of the citizen growsproportionately with the size of the concentration of power. It is not the power itself butthe person over whom the power is exercised who must be protected at law. That is theessence of fundamental human rights.Judgment of the ECJ regarding Kadi & Al-Barakaat© Van Diepen Van der Kroef Advocaten page 84 of 99
199. The European Court of Justice on 3 September 2008 pronounced a judgment, which is animportant judgment for the present case, on the relationship between UN Resolutions andthe fundamental rights arising under the EU Treaty, including thereunder Article 6 ECHR.The Association et al. will address this judgment at some length. The Association et al. willaddress in sequence the facts, the Advisory Opinion of the Advocate-General and thedecision of the Court at second instance. Stated briefly, the judgment entails first that thecommunity legal order is separate from obligations under international treaties, includingUN treaties and rules. Secondly, the judgment entails that Member States of the EuropeanUnion and its organs must review in respect of the fulfilment of international obligationswhether the basic rights of the citizens arising under the EU Treaty are safeguarded. Thatdemonstrates the incorrectness of the reasoning of the District Court.Facts200. The facts in the Case Kadi and Al-Barakaat (Court of Justice, dated 3 September 2008, CaseC-415/05 P, Al Barakaat International Foundation against Council of the European Union andCommission of the European Communities) are briefly given below.201. The Sanctions Committee of the Security Council of the United Nations designated Kadi andAl-Barakaat International Foundation as persons suspected of supporting terrorism, as aresult of which their funds and other financial resources were frozen. Kadi and Al-Barakatchallenged the legality of the order, whereupon the Council implemented the order tofreeze all property within the European Community. Kadi and Al-Barakaat argued, inter alia,that despite the intended aim of combatting international terrorism and the purpose of theUnited Nations to secure peace and security, the contested regulation violated a number offundamental rights. The Council and the European Commission adopted the position that theregulation was necessary for the implementation of binding resolutions of the SecurityCouncil and that accordingly the European Community judicature should refrain fromsubjecting this regulation to review for compatibility with fundamental rights. In effect,they asserted that when the Security Council spoke, the court should keep quiet.202. The State of the Netherlands intervened in the proceedings on the side of the Council andEuropean Commission. The State of the Netherlands argued before the Court of Justice thata resolution adopted by the Security Council,’ in principle escapes all review by theCommunity judicature, even concerning observance of fundamental rights, and so for that© Van Diepen Van der Kroef Advocaten page 85 of 99
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Against:1. The State of the Netherl
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- the motion by the State of the Ne
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options exist side by side and do n
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22. The Public Prosecutions Departm
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Explanation of ground of appeal 427
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eferred to the fact that the proces
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No legal relevant interest of the S
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The Article envisages a situation i
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The Hague District Public Prosecuto
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54. The District Court is evidently
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functional necessity. In that conte
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only in Germany. It was not dispute
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immunity of the UN has no absolute
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‘Darüber hinaus kann gefragt wer
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Page 38 and 39: ) leads to a result which is manife
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Page 42 and 43: of functional necessity for immunit
Page 44 and 45: 100. Even where the District Court
Page 46 and 47: 105. The District Court referred un
Page 48 and 49: necessary that change is there effe
Page 50 and 51: 115. It is also incomprehensible th
Page 52 and 53: consideration 3.3.6). Under legal c
Page 54 and 55: desirable that national courts do n
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Page 58 and 59: The whole point of the Genocide Con
Page 60 and 61: prevent the genocide. Worse still,
Page 62 and 63: 137. It was known at the UN - and b
Page 64 and 65: 144. It is established as a result
Page 66 and 67: 151. The Basic Principles provide t
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Page 96 and 97: 209. To conclude, the Association e
Page 98 and 99: Explanation of ground of appeal 172
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