In the case of Nada v. Switzerland,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Nicolas Bratza, President,
Jean-Paul Costa,
Françoise Tulkens,
Josep Casadevall,
Nina Vajić,
Dean Spielmann,
Christos Rozakis,
Corneliu Bîrsan,
Karel Jungwiert,
Khanlar Hajiyev,
Ján Šikuta,
Isabelle Berro-Lefèvre,
Giorgio Malinverni,
George Nicolaou,
Mihai Poalelungi,
Kristina Pardalos,
Ganna Yudkivska, judges,
andMichael O’Boyle, Deputy Registrar,
Having deliberated in private on 23 March 2011, 7 September
2011 and on 23 May 2012,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
The case originated in an application (no.
10593/08) against the Swiss Confederation lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Italian and Egyptian national, Mr Youssef
Moustafa Nada (“the applicant”), on 19 February 2008.
The applicant was represented by Mr J. McBride, a
barrister in London. The Swiss Government (“the Government”) were represented
by their Agent, Mr F. Schürmann, of the Federal Office of Justice.
In his application, Mr Nada alleged that the ban
on entering or transiting through Switzerland, which had been imposed on him as
a result of the addition of his name to the list annexed to the FederalTaliban
Ordinance, had breached his right to liberty (Article 5 of the Convention) and
his right to respect for private and family life, honour and reputation
(Article 8). He submitted that this ban was thus also tantamount to
ill-treatment within the meaning of Article 3. He further complained of a
breach of his freedom to manifest his religion or beliefs (Article 9), arguing
that his inability to leave the enclave of Campione d’Italia had prevented him
from worshipping at a mosque. Lastly, he complained that there had been no
effective remedy in respect of those complaints (Article 13).
The application was assigned to the Court’s First
Section (Rule 52 § 1 of the Rules of Court), which decided to deal with it on a
priority basis under Article 41 of the Rules of Court. On 12 March 2009 a
Chamber of that Section decided to give notice to the Government of the
complaints under Articles 5, 8 and 13.
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 of the Convention and Rule 44 § 2 as
then in force). The Italian Government did not make use of their right to
intervene in the proceedings (Article 36 § 1 of the Convention).
On 20 January 2010 the parties were informed that
the Chamber intended to examine the admissibility and merits of the application
at the same time (former Article 29 § 3 of the Convention together with former
Rule 54A).
On 30 September 2010 the Chamber, composed of
Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik
Jebens, Giorgio Malinverni, and George Nicolaou, judges, and Søren Nielsen,
Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither
of the parties having objected to relinquishment after being consulted for that
purpose (Article 30 of the Convention and Rule 72).
The composition of the Grand Chamber was
determined according to the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24. Jean-Paul Costa, Christos Rozakis, Giorgio Malinverni
and Mihai Poalelungi continued to deal with the case after their term of office
expired, until the final deliberations, in accordance with Article 23 § 3 of
the Convention and Rule 24 § 4.
The applicant and the Governmenteach filed
written observations on the merits of the case. The French and United Kingdom
Governments submitted the same observations as before the Chamber. In addition,
the President of the Grand Chamber authorised JUSTICE, a non-governmental
organisation based in London, to submit written comments (Article 36 § 2 of the
Convention taken in conjunction with Rule 44 § 2). Lastly, the President of the
Grand Chamberauthorised the United Kingdom Government to take part in the
hearing.
A hearing took place in public in the HumanRightsBuilding,Strasbourg, on 23 March 2011 (Rule 59 § 3).
There appeared before the Court:
– for the Government
Mr F. Schürmann,Head of European law and
international
human rights section, Federal Office of Justice,
Federal Police and Justice Department, Agent,
Mr J. Lindenmann,Ambassador, Deputy
Director of Public
International Law Directorate, Federal
Department of Foreign Affairs,
Mr R. E. Vock,Head of Sanctions Division, State
Secretariat
for Economic Affairs, Federal Department of
Economic Affairs,
Ms R. Bourguin, Specialised legal adviser
with policy
responsibility, Legal Affairs Section,Migration
policy division, Federal Office of Migration,
Federal Police and Justice Department,
Ms C. Ehrich, Technical adviser, European
law and
internationalhuman rights section, Federal Office
of Justice, Federal Police and Justice Department, Advisers;
– for the applicant
Mr J.
McBride, barrister, Counsel,
Mr G. Himmat,
Mr D. Thompson, Advisers;
– for the United Kingdom Government (third
party)
Mr D.
Walton, Agent,
Mr S. Wordsworth, Counsel,
Ms C. Holmes, Adviser.
The applicant and his wife were also present.
The Court heard addresses by Mr Schürmann, Mr McBride and
Mr Wordsworth. It also heard the replies of the parties’ representatives
to questions from judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
The applicant was born in 1931 and has been
living since 1970 in Campione d’Italia, which is an Italian enclave of about
1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton
of Ticino and separated from the rest of Italy by LakeLugano.
He describes himself as a practising Muslim 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 al-Qaeda. On the contrary, he
has consistently denounced not only the means used by that organisation, but
also its ideology.
The applicanthas further indicated that he has
only one kidney (the other having deteriorated in recent years). He also
suffers from bleeding in his left eye, as shown by a medical certificate of 20
December 2001, and arthritis in the neck.In addition, according to a medical
certificate issued by a doctor in Zurich on 5 May 2006, he sustained a fracture
in his right hand which was due to be operated on in 2004. The applicant has
alleged that, because of the restrictions imposed on himwhich 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 15 October 1999, in response to the 7 August
1998 bombings by Osama bin Laden and members of his network against the United
States embassies in Nairobi (Kenya) and Dar-es-Salaam (Tanzania) theSecurity
Councilof the United Nations (the “UN”) adopted, under Chapter VII of the UN
Charter, Resolution 1267 (1999), providing for sanctions against the Taliban
(seeparagraph 70 below) and created a committee consisting of all the members
of the Security Council to monitor the enforcement of that resolution (the
“Sanctions Committee”).
On 2 October 2000, to implement that resolution,
the Swiss Federal Council (the federal executive) adopted an Ordinance
“instituting measures against the Taliban” (the “Taliban Ordinance” – see
paragraph 66 below), which subsequently underwent a number of amendments,
including to its title.
By Resolution 1333 (2000) of 19 December 2000
(see paragraph 71 below) the Security Council extended the sanctions regime. It
was now also directed against Osama bin Laden and the al-Qaeda organisation, as
well as the Taliban’s senior officials and advisers. In bothResolutions 1267
(1999) and 1333 (2000), the Security Council requested the Sanctions Committee
to maintain a list, based on information provided by States and regional
organisations, of individuals and entities associated with Osama bin Laden and
al-Qaeda.
On 11 April 2001the Swiss Government amended the
Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new
Article 4a, paragraph 1 of which prohibited entry into and transit through
Switzerland for the individuals and entities concerned by the resolution (but
without naming them).
On 24 October 2001 the Federal Prosecutor opened
an investigation in respect of the applicant.
On 7 November 2001 the President of the United States of America blocked the assets of Bank Al Taqwa, of which the applicant was
the chairman and principal shareholder.
On 9 November 2001 the applicant and a number of
organisations associated with him were added to the Sanctions Committee’s list.
On 30 November 2001 (or 9 November according to the applicant’s
observations), their names were added to the list in an annex to the Taliban
Ordinance.
On 16 January 2002 the Security Council adopted
Resolution 1390 (2002) 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 Resolutions 1267 (1999) and 1333
(2000) (see paragraphs70-71 and74 below). On 1 May 2002 Article 4a of the
FederalTaliban Ordinance was amended accordingly: the entry and transit ban
applied henceforth to all individuals named in Annex 2 to the Ordinance,
including the applicant.
On 10 September 2002 Switzerland became a member
of the United Nations.
When he visited London in November 2002, the
applicant was arrested and removed to Italy, his money also being seized.
On 10 October 2003, following criticism by the
Monitoring Group for the application of the sanctions (see paragraph 72 below),
the Canton of Ticino revoked the applicant’s special border-crossing permit.
The Monitoring Group had observed, in the course of its inquiry into the
applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the
applicant was actually affected by the entry and transit ban.
On 27 November 2003 the Swiss Federal Office for
Immigration, Integration and Emigration (the “IMES”) informed the applicant
that he was no longer authorised to cross the border.
On 23 March 2004 the applicant lodged a request
with the IMES for leave to enter or transit through Switzerland for the
purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 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 Campione d’Italia,
were not such as to permit the authorities to grant him an exemption from the
measure taken against him.
In a decision of 27 April 2005 the Federal
Criminal Court ordered the Federal Prosecutor either to discontinue the
proceedings or to send the case to the competent federal investigating judge by
31 May 2005. In an order of that date the Federal Prosecutor, finding that the
accusations against the applicant were unsubstantiated, closed the
investigation in respect of the applicant.
On 22 September 2005 the applicant requested the
Federal Council to delete his name and those of the organisations associated
with him from the annex to the Ordinance. He argued, in support of his claim,
that the police investigation concerning him had been discontinued by a
decision of the Federal Prosecutor and that it was therefore no longer
justified to subject him to sanctions.
In a decision of 18 January 2006 the State
Secretariat for Economic Affairs (the “SECO”) rejected his request on the
grounds that Switzerland could not delete names from the annex to the Taliban
Ordinance while they still appeared on the UN Sanctions Committee’s list.
On 13 February 2006 the applicant lodged an
administrative appeal with the Federal Department for Economic Affairs (the
“Department”).
In a decision of 15 June 2006 the Department
dismissed that appeal. It confirmed that the deletion of a name from the annex
to the Ordinance could be envisaged only once that name had been deleted from
the Sanctions Committee’s 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 the UN institutions. As Switzerland was neither the
applicant’s State of citizenship nor his State of residence, the Department
found that the Swiss authorities were not competent to initiate such a
procedure.
On 6 July 2006 the applicant appealed to the Federal
Council against the Department’s decision. He requested that his name and those
of a certain number of organisations associated with him be deleted from the
list in Annex 2 to the Taliban Ordinance.
On 20 September 2006 the Federal Office of
Migration (the “ODM”), which had been created in 2005, incorporating the IMES,
granted the applicant an exemption for one day, 25 September 2006, so that
he could go to Milan for legal proceedings. The applicant did not make
use of that authorisation.
On 6 April 2007 the applicant sent to the “focal
point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to
receive requests for delisting from individuals or entities on the Sanctions
Committee’s lists(see paragraph 76 below) – a request for the deletion of his
name from the relevant list.
In a decision of 18 April 2007 the Federal
Council, ruling on the appeal of 6 July 2006, referred the case to the Federal
Court, finding that the applicant had been subjected to direct restrictions on
his right to enjoy his possessions; also that Article 6 of the European
Convention on Human Rights consequently applied to his request for deletion
from the annex to the Ordinance, and that, accordingly, the case had to be examined
by an independent and impartial tribunal.
In its observations, the Department submitted
that the appeal should be dismissed, pointing out that Security Council
Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations
whose names appeared on the Sanctions Committee’s list to apply for delisting
on an individual basis rather than through their State of citizenship or
residence.
The applicant maintained his submissions.
Moreover, he alleged that on account of the ODM’s evident reluctance to grant
exemptions under Article 4a § 2 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 Italy for administrative or judicial reasons, and that he
had therefore effectively spent the past years under house arrest. The addition
of his name to the Sanctions Committee’s list was also tantamount to accusing
him publicly of being associated with Osama bin Laden, al-Qaeda and the
Taliban, 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 the Security Council’s
sanctions were contrary to the United Nations Charter and to the peremptory
norms of international law (jus cogens), he argued that Switzerland was
not obliged to implement them.
In a decision of 11 May 2007, in which it
indicated the remedy available, the ODM dismissed a new exemption request by
the applicant. In a decision of 12 July 2007, 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 20 July 2007 the
applicant explained that there had been a misunderstanding and that his
previous letter had in fact been a new request for exemption. On 2 August 2007
the ODM again rejected his request, reminding him that he could challenge the
decision by lodging an appeal with the Federal Administrative Court. The
applicant did not appeal against the decision.
On 29 October 2007 the focal point for delisting
requests, set up by Security Council Resolution 1730 (2006),denied the
applicant’s request of 6 April 2007 to have his name removed from the Sanctions
Committee’s list (see paragraph 35 above). On 2 November 2007 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 19 and 28 November
2007 the focal point reaffirmed the confidentiality of the process, but
nevertheless informed the applicant that an undisclosable State had opposed his
delisting.
B. Federal Court judgment of 14 November 2007
In a judgment of 14 November 2007 the Federal
Court, to which the Federal Council had referred the applicant’s appeal (see
paragraph 36 above) declared that appeal admissible but dismissed it on the
merits.
It first pointed out that, under Article 25 of
the United Nations Charter, the UN member States had undertaken to accept and
carry out the decisions of the Security Council in accordance with the Charter.
It then observed that under Article 103 of the Charter the obligations arising
from that instrument did not only prevail over the domestic law of the member
States 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 Charter but extended to all
obligations which arose from a binding resolution of the Security Council.
The Federal Court observed, however, that the Security
Council was itself bound by the Charter and was required to act in accordance with
its purposes and principles (Article 24 § 2 of the Charter), which included
respecting human rights and fundamental freedoms (Article 1 § 3 of the
Charter). At the same time, it took the view that the member States were not
permitted to avoid an obligation on the grounds that a decision (or resolution)
by the Security Council was substantively inconsistent with the Charter, 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).
The Federal Court then observed that under
Article 190 of the Federal Constitution (see paragraph 65 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 Switzerland, also included customary international law, general principles of law and the decisions
of international organisations which were binding on Switzerland, including the
Security Council’s decisions concerning the sanctions regime.
However, it observed that Article 190 of the
Constitution contained no rules on how to settle possible conflicts between
different norms of international law which were legally binding on Switzerland,
and that in the present case there was such a conflict between the Security
Council’s decisions on the one hand and the guarantees of the European
Convention on Human Rights and the International Covenant on Civil and
Political Rights 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 the United Nations Charter
prevailed over obligations under any other international agreement (Article 103
of the Charter, taken together with Article 30 of the Vienna Convention on
the Law of Treaties; see paragraphs69 and 80 below). The Federal Court was of
the opinion that the uniform application of UN sanctions would be endangered if
the courts of States Parties to the European Convention or the International
Covenant on Civil and Political Rights 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 the Security Council’s decisions was limited by norms
of jus cogens. Accordingly, it considered itself bound to ascertain
whether the sanctions regime set up by the Security Council was capable of
breaching the peremptory norms of international law, as the applicant had
claimed.
The Federal Courtthen citedas examples of jus
cogens norms: the right to life, protection from torture and inhuman or
degrading treatment, prohibition of slavery, 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 withinjus cogens.
As regards the consequences for the applicant of
the measures taken against him, in particular the ban on entry into and transit
through Switzerland, the Federal Court found as follows:
“7.4 ... These sanctions include far-reaching commercial
restrictions for those affected; the funds necessary for their survival are
not, however, blocked (see Resolution 1452(2002) paragraph 1(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 10.2 below regarding the appellant’s particular situation);
journeys to their home country are also specifically permitted (see Resolution
1735(2006), paragraph 1(b)).
...”
The Federal Court further indicated that,
generally speaking, sanctions were decided by the Security Council 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 Resolution 1730 (2006), the delisting procedure allowing individuals
to have direct access to the Sanctions Committee already represented
substantial progress, even though the system still had considerable
shortcomings from the point of view of human rights.
The Federal Court then examined the question of
the extent to which Switzerland was bound by the relevant resolutions, in other
words whether it had any latitude (Ermessensspielraum) in implementing
them:
“8.1 The Security Council adopted Resolution
1267(1999) and the subsequent resolutions regarding sanctions affecting
al-Qaeda and the Taliban on the basis of Chapter VII of the UN Charter, with
the express obligation on all member States 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 7 of Resolution 1267(1999)).
The sanctions (freezing of assets, entry and transit ban, arms
embargo) are described in detail and afford member States no margin of
appreciation in their implementation. The names of those affected by the
sanctions are also indicated to the member States: this is determined by the
list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of
Resolution 1933(2000)).
As regards the possibility ofobtaining deletion from the list,
the Sanctions Committee has introduced a specific procedure (see paragraphs 13
et seq. of Resolution 1735(2006) and the directives of the Sanctions Committee
dated 12 February 2007). The member States are thusdebarred from deciding
of theirown motionwhether or not sanctions should continue to be imposed on a
person or organisation appearing on the Sanctions Committee’s list.
Switzerland would therefore be in breach of its obligations
under the Charter were it to delete the names of the appellant and his
organisations from the annex to the Taliban Ordinance.
...
8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex
2 to the Taliban Ordinance.
It is to be admitted that in this situation no effective remedy
is available to the appellant. The Federal Court may certainly examine whether
and to what extent Switzerland is bound by the resolutions of the Security
Council, but it is not permitted to remove the sanctions against the appellant
on the ground that they breach his fundamental rights.
The Sanctions Committee alone is responsible for the delisting
of persons or entities. In spite of the improvements mentioned above, the
delistingprocedurefails to meet both the requirement of access to a court under
Article 29a of the Federal Constitution, Article 6 § 1 of the ECHR and Article
14 § 1 of the United Nations Covenant on Civil and Political Rights, and thatof
an effective remedy within the meaning of Article 13 of the ECHR and Article
2(3) of the United Nations Covenant ...”
The Federal Courtfurtherexamined whether Switzerland, 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:
“9.1 The lower courts examined whether Switzerlandwas obliged to initiatethe delisting procedureon 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.
9.2 For his application to be successful he
nevertheless relies on the support of Switzerland, since this is the only
country to have conducted a comprehensive preliminary investigation, with
numerous letters of request, house searches and questioning of witnesses.
United Nations member States are obliged to prosecute persons
suspected of financing or supporting terrorism (see paragraph 2(e) of Security
Council Resolution 1373(2001)) ...
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 cannot itself proceed with the deletion, but it
can at least transmit the results of its investigations to the Sanctions
Committee and request or support the person’s delisting.”
Lastly, the Federal Court examined whether the
travel ban enforced under Article 4a of the Taliban Ordinance extended
beyond the sanctions introduced by the Security Council resolutions and whether
the Swiss authorities thus had any latitude in that connection. The court found
as follows:
“10.1 Article 4a §1 of the Taliban Ordinance
prohibits the individuals listed in Annex 2 from entering or transiting through
Switzerland. Article 4a § 2 provides that, in agreement with the UN Security
Council decisions or for the protection of Swiss interests, the Federal Office
of Migration is entitled tograntexemptions.
According to the Security Council resolutions 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 the Sanctions Committee (see paragraph 1(b) of Resolution
1735(2006)). This includes in particular travel on medical, humanitarian or
religious grounds (Brown Institute, cited above, p. 32).
10.2 Article 4a § 2 of the Taliban Ordinance is
formulated as an ‘enabling’ provision and gives the impression that the Federal
Office of Migration 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 UN sanctions regime so permits. A more
far-reaching restriction on the appellant’s freedom of movement could not be
regarded as based on the Security Council resolutions, would not be in the
public interest and would be disproportionate in the light of the appellant’s
particular situation.
The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and
transit through Switzerland, he is unable to leave Campione. 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 Swiss authorities are obliged to exhaust all the relaxations
of the sanctions regime available under the UN Security Council resolutions.
The Federal Office of Migration 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 one of the general exemptions
envisaged by the Security Council, it must be submitted to the Sanctions
Committee for approval.
10.3 The question whether the Federal Office of
Migration 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 the Federal Office 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 Italian enclave of Campione to Italy. To date the appellant has made no such request.”
C. Developments subsequent to the Federal Court’s
judgment
Following the Federal Court’s judgment the
applicant wrote to the ODM to request it to re-examine the possibility of
applying general exemptions to his particular situation. On 28 January 2008 he
lodged a new request seeking the suspension of the entry and transit ban for
three months. In a letter of 21 February 2008 the ODM denied that request,
stating that it was unable to grant a suspension for such a long period without
referring the matter to the Sanctions Committee, but that it could grant
one-off safe conducts. The applicant did not challenge that decision.
On 22 February 2008, at a meeting between the
Swiss authorities and the applicant’s representative on the subject of the
support that Switzerland could provide to the applicant in his efforts to
obtain his delisting, a representative of the Federal Department of Foreign
Affairs observed that the situation was rather singular, as the applicant, on
the one hand, was asking what support the Swiss authorities could give him in
the UN delisting procedure, and on the other, had brought a case against
Switzerland before the Court.
During the meetingthe applicant’s representative explained that
he had received verbal confirmation from the ODM to the effect that his client
would be granted one-off authorisations to go to Italy, in order to consult his
lawyer in Milan. The representative of the Federal Department of Foreign
Affairs also indicated that the applicant could ask the Sanctions Committee for
a more extensive exemption on account of his particular situation. However, she
also repeated that Switzerland could not itself apply to the Sanctions
Committeefor 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 Italian authorities with
a view to obtaining their support in a delisting procedure, the Federal
Department’s representative suggested that the lawyer contact the Italian
Permanent Mission to the United Nations, adding that Italyhad, at that time, a
seat on the Security Council.
The Government informed the Court that in
April 2008 an Egyptian military tribunal had sentenced the applicant in
absentia to ten years’ imprisonment for providing financial support to the
Muslim Brotherhood organisation (see the article on this subject dated 16 April
2008 in the daily newspaper Corriere del Ticino). 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 Article 6.
On 5 July 2008 the Italian Government submitted
to the Sanctions Committee a request for the applicant’s delisting on the
ground that the case against him in Italy had been dismissed. The Committee
denied that request by a decision of 15 July 2008. In the applicant’s
submission, the Committee had not allowed him to submit his observations to it
beforehand.
On 11 September 2008 the ODM granted the
applicant the right to enter Switzerland and to remain in the country for two
days, but the applicant did not make use of this authorisation.
In a letter of 23 December 2008 the ODM informed
the applicant that the entry of Switzerland into the Schengen area, on
12 December 2008, did not affect his situation.
In their observations before the Chamber, the
Swiss Governmentstated that, to their knowledge, the applicant’s listing had
been initiated by a request from the United States of America, and that the USA
had submitted to the Sanctions Committee, on 7 July 2009, a request for the
delisting of a number of individuals, including the applicant.
On 24 August 2009, in accordance with the
procedure laid down by Security Council Resolution 1730 (2006), the applicant
submitted to the focal point for delisting requests a request for the deletion
of his name from the Sanctions Committee’s list.
On 2 September 2009 Switzerland sent to the
Sanctions Committee a copy of a letter of 13 August 2009 from the Federal
Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed
that the judicial police investigation in respect ofhis client had not produced
any indications or evidence to show that he had ties with persons or
organisations associated with Osama bin Laden, al-Qaeda or the Taliban.
On 23 September 2009 the applicant’s name was
deleted from the list annexed to the Security Council resolutions providing for
the sanctions in question. According to the applicant, the procedure provided
for under Resolution 1730 (2006) was not followed and he received no
explanation in this connection. On 29 September 2009 the annex to the
Taliban Ordinance was amended accordingly and the amendment took effect on
2 October 2009.
By a motion passed on 1 March 2010, the Foreign
Policy Commission of the National Council (lower house of the federal parliament)
requested the Federal Council to inform the UN Security Council that from the
end of 2010 it would no longer, in certain cases, be applying the sanctions
prescribed against individuals under the counter-terrorism 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 States. The motion had been introduced on 12 June 2009 by Dick
Marty, a member of the Council of States (upper house of parliament), and it
referred to the applicant’s case by way of example.
D. Efforts made to improve the sanctions regime
The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively
worked since becoming a member of the UN on 10 September 2002 to improve the
fairness of the listing and delisting procedure and the legal situation of the
persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in
the sanctions procedure. Pursuing its initiative, Switzerland had submitted to
the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory
panel of independent experts authorised to submit delisting proposals to the
Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked
intensively with its partners to ensure that the resolution on the renewal of
the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption
in December, met that need. In the meantime Switzerland had supported the
publication in October 2009 of a report proposing, as an option for an advisory
review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security
Council adopted Resolution 1904 (2009) setting up the office of ombudsperson to
receive complaints from individuals affected by the UN Security Council counterterrorism
sanctions (see paragraph 78 below). Lastly, Switzerland had called on many
occasions, before the UN Security Council and General Assembly, for an
improvement in the procedural rights of the persons concerned by the sanctions.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
A. Domestic law
1. Federal Constitution
Article 190 (“Applicable law”) of the Federal
Constitution provides:
“The Federal Court and the other authorities shall be required
to apply federal statutes and international law.”
2. Ordinance of 2 October 2000 instituting measures
against persons and entities associated with Osama bin Laden, the group
“al-Qaeda” or the Taliban (the “Taliban Ordinance”)
The Ordinance of 2 October 2000 instituting
measures against persons and entities associated with Osama bin Laden, the
group “al-Qaeda” or the Taliban, 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 the
Federal Court delivered its judgment (14 November 2007):
Article 1 - Ban on supply of military equipment and similar
goods
“1. 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 aforementioned, to the
individuals, undertakings, groups or entities referred to in annex 2 hereto,
shall be prohibited.
...
3. 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 annex 2 hereto, shall be
prohibited.
4. Paragraphs 1 and 3 above shall apply only to the extent that
the Property Regulation Act of 13 December 1996, the Federal Act on War
Materiel of 13 December 1996, and their respective implementing
ordinances, are not applicable.
...”
Article 3 – Freezing of assets and economic resources
“1. Assets and economic resources owned or controlled by the
individuals, undertakings, groups or entities referred to in annex 2 hereto
shall be frozen.
2. It shall be prohibited to supply funds to the individuals,
undertakings, groups or entities referred to in annex 2 hereto, or to make
assets or economic resources available to them, directly or indirectly.
3. The State Secretariat for Economic Affairs (SECO) may exempt
payments related to democratisation or humanitarian projects from the
prohibitions under paragraphs 1 and 2 above.
4. The SECO may authorise, after consulting the competent
services of the Federal Department of Foreign Affairs and the Federal
Department of Finance, payments from blocked accounts, transfers of frozen
capital assets and the release of frozen economic resources, in order to
protect Swiss interests or to prevent hardship cases.”
Article 4 – Mandatory declaration
“1. Anyone holding or managing assets acknowledged to be
covered by the freezing of assets under Article 3 § 1 hereof must immediately
declare them to the SECO.
2. Any person or organisation knowing of economic resources
acknowledged to be covered by the freezing of economic resources under Article
3 § 1 hereof must immediately declare them to the SECO.
3. The declaration must give the name of the beneficiary, the
purpose and the amount of the assets or economic resources frozen.”
Article 4a – Entry into and transit through Switzerland
“1. Entry into and transit through Switzerland shall be
prohibited for the individuals listed in annex 2 hereto.
2. The Federal Office for Migration may, in conformity with the
decisions of the United Nations Security Council or for the protection of Swiss
interests, grant exemptions.”
B. International law
1 United Nations Charter
The United Nations Charter was signed at San Franciscoon 26 June 1945. The relevant provisions for the present case read
as follows:
Preamble
“We the peoples of the United Nations, 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 neighbours, 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 Governments, through representatives
assembled in the city of San Francisco, 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 the United Nations.”
Article 1
“The Purposes of the United Nations are:
1. 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;
...
3. To achieve international co-operation 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
...”
Article 24
“1. 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.
2. In discharging these duties the Security Council shall act
in accordance with the Purposes and Principles of the United Nations. The
specific powers granted to the Security Council for the discharge of these
duties are laid down in Chapters VI, VII, VIII, and XII.
...”
Article 25
“The Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the present
Charter.”
Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of
the peace, and acts of aggression”. Article 39 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
Articles 41 and 42, to maintain or restore international peace and security.”
Chapter XVI is entitled “Miscellaneous
Provisions”. Article 103 reads as follows:
“In the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present
Charter shall prevail.”
2. Resolutions adopted by the Security Council in
connection with its measures against al‑Qaeda and the Taliban, in so far
as relevant to the present case
Resolution 1267 (1999) was adopted on 15 October
1999. It created the Sanctions Committee, consisting of all Security Council
members. This Committee was in particular entrusted with the task of requesting
all States to keep it informed of the steps taken to ensure the effective
implementation of the measures required under the resolution, namely the denial
of permission for aircraft associated with the Taliban to use their territory
for take-off or landing, unless the Sanctions Committee had approved the flight
in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s
funds and other financial resources. The passages of this Resolution that are
relevant to the present case read as follows:
Resolution 1267 (1999)
Adopted by the Security Council at its 4051st meeting on 15
October 1999
“The Security Council,
Reaffirming its previous resolutions, in particular
resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998
and 1214 (1998) of 8 December 1998, and the statements of its
President on the situation in Afghanistan,
Reaffirming its strong commitment to the sovereignty,
independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’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 Taliban of
the Consulate-General of the Islamic Republic of Iran and the murder of Iranian
diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of
established international law,
Recalling the relevant international counter-terrorism
conventions and in particular the obligations of parties to those conventions
to extradite or prosecute terrorists,
Strongly condemning the continuing use of Afghan
territory, especially areas controlled by the Taliban, 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 Taliban continues to provide
safe haven to Usama bin Laden and to allow him and others associated with him
to operate a network of terrorist training camps from Taliban-controlled
territory and to use Afghanistan as a base from which to sponsor international
terrorist operations,
Noting the indictment of Usama bin Laden and his
associates by the United States of America for, inter alia, the 7 August 1998
bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam,
Tanzania and for conspiring to kill American nationals outside the United
States, and noting also the request of the United States of America to the
Taliban to surrender them for trial (S/1999/1021),
Determining that the failure of the Taliban authorities
to respond to the demands in paragraph 13 of resolution 1214 (1998) constitutes
a threat to international peace and security,
Stressing its determination to ensure respect for its
resolutions,
Acting under Chapter VII of the Charter of the United
Nations,
...
3. Decides that on 14 November 1999 all States
shall impose the measures set out in paragraph 4 below, unless the Council has
previously decided, on the basis of a report of the Secretary-General, that the
Taliban has fully complied with the obligation set out in paragraph 2 above;
4. Decides further that, in order to enforce
paragraph 2 above, all States 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 Taliban as designated by the Committee established by paragraph 6 below,
unless the particular flight has been approved in advance by the Committee on
the grounds of humanitarian need, including religious obligation such as the
performance of the Hajj;
(b) Freeze funds and other financial resources, including
funds derived or generated from property owned or controlled directly or
indirectly by the Taliban, or by any undertaking owned or controlled by the
Taliban, as designated by the Committee established by paragraph 6 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 Taliban or any undertaking owned
or controlled, directly or indirectly, by the Taliban, except as may be
authorized by the Committee on a case-by-case basis on the grounds of
humanitarian need;
5. Urges all States to cooperate with efforts to
fulfil the demand in paragraph 2 above, and to consider further measures
against Usama bin Laden and his associates;
6. Decides to establish, in accordance with rule
28 of its provisional rules of procedure, a Committee of the Security Council
consisting of all the members of the Council to undertake the following tasks
and to report on its work to the Council with its observations and
recommendations:
...
7. Calls upon all States to act strictly in
accordance with the provisions of this resolution, 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 4 above;
8. Calls upon States to bring proceedings against
persons and entities within their jurisdiction that violate the measures
imposed by paragraph 4 above and to impose appropriate penalties;
9. Calls upon all States to cooperate fully with
the Committee established by paragraph 6 above in the fulfilment of its tasks,
including supplying such information as may be required by the Committee in
pursuance of this resolution;
10. Requests all States to report to the Committee
established by paragraph 6 above within 30 days of the coming into force of the
measures imposed by paragraph 4 above on the steps they have taken with a view
to effectively implementing paragraph 4 above;
...”
By Resolution 1333 (2000), adopted on 19
December 2000, the Security Council extended the application of the sanctions
provided for under Resolution 1267 (1999) to any individuals or entities
identified by the Sanctions Committee as being associated with al-Qaeda or
Osama bin Laden. The resolution further required a list to be maintained for
the implementation of the UN sanctions. The passages that are relevant to the
present case read as follows:
Resolution 1333 (2000)
“... The Security Council...
Reaffirming its previous resolutions, in particular
resolution 1267 (1999) of 15 October 1999 and the statements of its
President on the situation in Afghanistan,
Reaffirming its strong commitment to the sovereignty,
independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage,
Recognizing the critical humanitarian needs of the
Afghan people,
...
8. Decides that all States shall take further measures:
(a) To close immediately and completely all Taliban offices
in their territories;
(b) To close immediately all offices of Ariana Afghan
Airlines in their territories;
(c) To freeze without delay funds and other financial assets
of Usama bin Laden and individuals and entities associated with him as
designated by the Committee, including those in the Al-Qaida organization, and
including funds derived or generated from property owned or controlled directly
or indirectly by Usama bin Laden 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 Usama bin Laden, his
associates or any entities owned or controlled, directly or indirectly, by
Usama bin Laden or individuals and entities associated with him including the
Al-Qaida organization and requests the Committee to maintain an updated
list, based on information provided by States and regional organizations, of
the individuals and entities designated as being associated with Usama bin
Laden, including those in the Al-Qaida organization;
...
12. Decides further that the Committee shall maintain a
list of approved organizations and governmental relief agencies which are
providing humanitarian assistance to Afghanistan, including the United Nations
and its agencies, governmental relief agencies providing humanitarian assistance,
the International Committee of the Red Cross and non-governmental organizations
as appropriate, that the prohibition imposed by paragraph 11 above shall not
apply to humanitarian flights operated by, or on behalf of, organizations and
governmental relief agencies on the list approved by the Committee, that the
Committee shall keep the list under regular review, adding new organizations
and governmental relief agencies as appropriate and that the Committee 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 11 above;
...
16. Requests the Committee to fulfil its mandate by
undertaking the following tasks in addition to those set out in resolution 1267
(1999):
(a) To establish and maintain updated lists based on
information provided by States, regional, and international organizations of
all points of entry and landing areas for aircraft within the territory of
Afghanistan under control by the Taliban and to notify Member States of the
contents of such lists;
(b) To establish and maintain updated lists, based on
information provided by States and regional organizations, of individuals and
entities designated as being associated with Usama bin Laden, in accordance
with paragraph 8 (c) above;
(c) To give consideration to, and decide upon, requests for
the exceptions set out in paragraphs 6 and 11 above;
(d) To establish no later than one month after the adoption
of this resolution and maintain an updated list of approved organizations and
governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above;
...
17. Calls upon all States and all international and
regional organizations, including the United Nations and its specialized agencies,
to act strictly in accordance with the provisions of this resolution,
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 paragraphs 5, 8, 10 and 11 above; ...”
In Resolution 1363 (2001), adopted on 30 July
2001, the Security Council decided to set up a mechanism to monitor the
measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring
Group”), consisting of up to five experts selected on the basis of equitable
geographical distribution.
In Resolution 1373 (2001), adopted on 28
September 2001 – following the events of 11 September 2001 – the Security
Council decided that States 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:
Resolution 1373 (2001)
“... The Security Council...
1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize 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;
2.Decides also that all States 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 States 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 States 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; ...
3. Calls upon all States 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 1390 (2002), adopted on 16 January
2002, the Security Council decided to impose a ban on entry and transit for
individuals and entities concerned by the international sanctions. This
resolutionalso made the sanctions regime more precise and transparent, because
the Sanctions Committee was requested to regularly update 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:
Resolution 1390 (2002)
“...The Security Council...
2. Decides that all States shall take the following
measures with respect to Usama bin Laden, members of the Al-Qaida organization
and the Taliban and other individuals, groups, undertakings and entities
associated with them, as referred to in the list created pursuant to
resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the
Committee established pursuant to resolution 1267 (1999) hereinafter referred
to as ‘the Committee’;
(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 economicresources are made available, directly or indirectly, for such
persons’ 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 State to deny entry into or require the departure from its
territories of its own nationals and thisparagraphshall not apply where entry
or transit is necessary for the fulfilment of a judicial process or the
Committee 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;
...
8. Urges all States 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 2 of
this resolution, and to inform the Committee of the adoption of such measures,
and invites States to report the results of all related investigations
or enforcement actions to the Committee unless to do so would compromise the
investigation or enforcement actions; ...”
In Resolution 1526 (2004), adopted on 30 January
2004, the Security Councilrequested States, on the submission of new names to
be added to the Committee’s list, to supply information facilitating the
identification of the persons or entities concerned. It also expressly
encouraged States to inform, as far as possible, the persons and entities on
the Committee’s list of the measures taken against them, of the Committee’s
guidelines, and of Resolution 1452 (2002) concerning the possibility of
exemption from certain sanctions.
In response to a surge in criticism of the
sanctions regime, the Security Council adopted increasingly detailed
resolutions to strengthen the procedural safeguards.In this connection,
Resolution 1730 (2006) established the current procedure by creating a “focal
point”to receive delisting requests in respect of persons or entities on the
lists kept by the Sanctions Committee. Under that resolution 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 one of those governments, the delisting request
was to be placed on the agenda of the Sanctions Committee, which would take
decisions by consensus among its fifteen members.
Resolution 1735 (2006) established a procedure
for notifying the individuals or entities whose names were on the list. It
further clarified the criteria for delisting as follows:
“14. ... the Committee, in determining whether to remove names
from the Consolidated List, may consider, among other things, (i) whether the
individual or entity was placed on the Consolidated List 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 Resolution 1617 (2005); in
making the evaluation in (ii) above, the Committee 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 resolution 1617 (2005), with Al-Qaida, Usama bin Laden, the
Taliban, and their supporters, including all individuals and entities on the
Consolidated List ...”
The procedure was subsequently reinforced with the
adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the
present case. In the latter, adopted on 17 December 2009, the Security Council
decided to createan Office of the Ombudsperson, whose task is to receive
requests from individuals concerned by the sanctions imposed by the Security
Council in the fight against terrorism. Under that resolution, 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
Ombudsperson, who examines each case impartially and independently and then
submits a report to the Sanctions Committee explaining the reasons for or
against delisting.
3. Vienna Convention on the Law of Treaties (1969)
Article 27 (“Internal
law and observance of treaties”) of the Vienna Convention on the Law of
Treaties reads as follows:
“A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. ...”
Article 30(“Application of successive treaties
relating to the same subject matter”) reads as follows:
“1. Subject to Article 103 of the Charter of the United
Nations, the rights and obligations of States Parties to successive treaties
relating to the same subject matter shall be determined in accordance with the
following paragraphs.
2. 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.
3. 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 article 59, the earlier treaty applies only to the extent that
its provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the
parties to the earlier one:
(a) as between States Parties to both treaties the same rule
applies as in paragraph 3;
(b) as between a State party to both treaties and a State party
to only one of the treaties, the treaty to which both States are parties
governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any
question of the termination or suspension of the operation of a treaty under
article 60 or to any question of responsibility which may arise for a State
from the conclusion or application of a treaty the provisions of which are
incompatible with its obligations towards another State under another treaty.”
4. Work of the United Nations International Law
Commission
The report of the study group of the
International Law Commission (ILC) entitled “Fragmentation of international
law: difficulties arising from the diversification and expansion of
international law”, published in 2006, contains the following
observations concerning Article 103 of the Charter:
4.Harmonization - systemic integration
“37. 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 Rousseau puts the duties of a judge in one 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 a rechercher leur
coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la
compatibilité des normes juridiques contradictoires dans l’ordre
international”, RGDIP vol. 39 (1932), p. 153].
38. 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, States are assumed not to
derogate from their obligations.Jennings and Watts, for example, note the
presence of a:
presumption that the parties intend something not inconsistent
with generally recognizedprinciples of international law, or with previous
treaty obligations towardsthird States [Sir Robert Jennings and Sir Arthur
Watts (eds.), Oppenheim’s International Law (London: Longman,1992)
(9th ed), p. 1275. For the wide acceptance of the presumption against
conflict - that is the suggestion of harmony - see also see Pauwelyn, Conflict
of Norm ...supra note 21, pp. 240-244].
39. As the International Court of Justice stated in the Right
of Passage 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 Indian Territory (Preliminary Objections)
(Portugal v. India) I.C.J. Reports 1957 p. 142].
...
331. Article 103 does not say that the Charter prevails,
but refers to obligations under the Charter.Apart from the rights and
obligations in the Charter itself, this also covers duties based on binding
decisions by United Nations bodies.The most important case is that of Article
25 that obliges Member States to accept and carry out resolutions of the
Security Council that have been adopted under Chapter VII of the Charter.Even
if the primacy of Security Council decisions under Article 103 is not expressly
spelled out in the Charter, it has been widely accepted in practice as well as
in doctrine ...”
5. Relevant international case-law
The measures taken under the Security Council
resolutions establishing a listing system and the possibility of reviewing the
legality of such measures have been examined, at international level, by the Court
of Justice of the European Communities(“CJEC”) and by the United Nations Human
Rights Committee.
(a) The case ofYassin Abdullah Kadi and Al
Barakaat International Foundation v. Council and Commission (Court of
Justice of the European Communities)
The case ofYassin Abdullah Kadi and Al
Barakaat International Foundation v. Council of the European Union and
Commission of the European Communities(joined casesC-402/05 P and C-415/05
P; hereinafter “the Kadi judgment”) concerned the freezing of the
applicants’ assets pursuant to European Community regulations adopted in
connection with the implementation of Security Councilresolutions 1267
(1999), 1333 (2000) and 1390 (2002), which, among other things, required all UN
member States to take measures to freeze the funds
and other financial resources of the individuals and entities identified by the
Security Council’s Sanctions Committee as beingassociated
with Osama bin Laden, al-Qaeda or the Taliban. 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 propertyas
protected by theTreaty instituting the European Community (“the EC Treaty”).
They contended that the EC regulations had been adoptedultra vires.
On 21
September 2005 the Court of First Instance (which on 1 December 2009
became known as the “General Court”) rejected those complaints and confirmed
the lawfulness of the regulations, finding mainly that Article 103 of the
Charterhad the effect of placing Security
Council resolutions above all
other international obligations (except for those covered by jus cogens),
including those arising from the EC treaty. It concluded that it was not
entitled to review Security Council resolutions, even on an incidental basis,
to ascertain whether they respected fundamental rights.
Mr Kadi appealed to the CJEC (which on 1
December 2009 became known as the “Court of Justice of the European Union”).
The appeal was examined by a Grand Chamber jointly with another case. In its
judgment of 3September 2008 the CJECfound 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 Security Council resolution. It thus
held that, even though it was not for the “Community judicature” to examine the
lawfulness of Security Councilresolutions, it was entitled to review Community
acts or acts of member States 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 CJEC concluded thatthe 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 the Security Council. The judgment contained the following
relevant passages:
...
“281.In this connection it is to be borne in mind that the
Community is based on the rule of law, inasmuch as neither its Member States
nor its institutions can avoid review of the conformity of their acts with the
basic constitutional charter, the EC Treaty, which established a complete
system of legal remedies and procedures designed to enable the Court of Justice
to review the legality of acts of the institutions (Case 294/83 Les Verts v
Parliament [1986] ECR 1339, paragraph 23).
...
290.It must therefore be considered whether, as the Court of
First Instance held, as a result of the principles governing the relationship
between the international legal order under the United Nations and the
Community 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
paragraphs 281 to 284 above, such review is a constitutional guarantee forming
part of the very foundations of the Community.
...
293.Observance of the undertakings given in the context of the
United Nations is required just as much in the sphere of the maintenance of
international peace and security when the Community gives effect, by means of
the adoption of Community measures taken on the basis of Articles 60 EC and 301
EC, to resolutions adopted by the Security Council under Chapter VII of the
Charter of the United Nations.
294.In the exercise of that latter power it is necessary for
the Community to attach special importance to the fact that, in accordance with
Article 24 of the Charter of the United Nations, the adoption by the Security
Council of resolutions under Chapter VII of the Charter 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, under Chapter VII, 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.
...
296.Although, because of the adoption of such an act, the
Community is bound to take, under the EC Treaty, the measures necessitated by
that act, that obligation means, when the object is to implement a resolution
of the Security Council adopted under Chapter VII of the Charter of the United
Nations, that in drawing up those measures the Community is to take due account
of the terms and objectives of the resolution concerned and of the relevant
obligations under the Charter of the United Nations relating to such
implementation.
297.Furthermore, the Court 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 Resolution 1390 (2002) which that
regulation, according to the fourth recital in the preamble thereto, is
designed to implement (Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law
cited).
298.It must however be noted that the Charter of the United
Nations does not impose the choice of a particular model for the implementation
of resolutions adopted by the Security Council under Chapter VII of the
Charter, 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 the
United Nations. The Charter of the United Nations leaves the Members of the
United Nations a free choice among the various possible models for
transposition of those resolutions into their domestic legal order.
299.It follows from all those considerations that it is not a
consequence of the principles governing the international legal order under the
United Nations 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 the
Security Council adopted under Chapter VII of the Charter of the United
Nations.
300.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
the Charter of the United Nations, especially those relating to the
implementation of resolutions of the Security Council adopted under Chapter VII
of the Charter, cannot find a basis in the EC Treaty.”
The CJEC 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.
(b) The case ofSayadi and Vinck v. Belgium(United
Nations Human Rights Committee)
In the case brought by Nabil Sayadi and Patricia
Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008,
concerning communication no. 1472/2006), the Human Rights Committee had
occasion to examine the national implementation of the sanctions regime
established by the Security Council in Resolution 1267 (1999).The two
complainants, Belgian nationals, had been placed on the lists appended to that
resolution in January 2003, on the basis of information which had been provided
to the Security Council by Belgium, shortly after the commencement of a
domestic criminal investigation in September 2002. They had submitted several
delisting requests at national, regional and United Nations levels, all to no
avail. In 2005, the BrusselsCourt of First Instancehad ordered the BelgianState, inter alia, to urgently initiate a delisting procedure with the United
Nations Sanctions Committee, and the State had subsequently done so.
The Human Rights Committee noted that the travel
ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took
the view that even though Belgium was not competent to remove their names from
either the United Nations or the European Union lists, it was responsible for
the presence of their names on the lists, and for the resulting travel ban. The
Committee found a violation of the complainants’ right to freedom of movement
under Article 12 of the International Covenant on Civil and Political Rights,
because both the dismissal of the criminal investigation and the State party’sdelisting
requests showed that the restrictions were not necessary to protect national
security or public order.
The Committee also found an unlawful attack on
the complainants’ honour and reputation, in breach of Article 17 of the
Covenant, basedon 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 the State
party’s requests for removal, their contact data were still accessible to the
public.
In the Committee’s opinion, although the State
party 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 20 July 2009 the complainants’ names were
removed from the list pursuant to a decision of the Sanctions Committee.
6. Relevant case-law of other States
The measures in question have also been examined
at national level, by the United Kingdom Supreme Court and the Canadian Federal
Court.
(a) The case ofAhmed and others v. HM Treasury (United Kingdom Supreme Court)
The case of Ahmed and othersv. HM
Treasury, examined by the Supreme Court of the United Kingdom on 27 January
2010,concerned the freezing of the appellants’ assets in accordance with the
sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001).The
Supreme Court took the view that the Government had acted ultra vires
the powers conferred upon it by section 1 of the United Nations Act 1946 in
making certain orders to implement Security Council resolutions on sanctions.
In particular, Lord Hope, Deputy President of
the Supreme Court, made the following observations:
“6. ... 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 Treasury have taken really is within the powers
that the 1946 Act has given them. Even in the face of the threat
ofinternational 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:
“81. 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 Mr Swift indicates, seeking a judicial review of the
Treasury’s decision to treat him as a designated person will get him nowhere. G
answers to that description because he has been designated by the 1267
Committee. What he needs if he is to be afforded an effective remedy is a means
of subjecting thatlisting to judicial review. This is something that, under the
system that the 1267Committee currently operates, is denied to him. I would
hold that article 3(1)(b) of the AQO [al-Qaeda Order], which has this effect,
is ultra vires section 1 of the 1946 Act. It is not necessary to consider for
the purposes of this case whether the AQO as a whole is ultra vires except to
say that I am not to be taken as indicating that article 4 of that Order, had
it been applicable in G’s case, would have survived scrutiny.
82. I would treat HAY’s case in the same way. He too is a
designated person by reason of the fact that his name is on the 1267 Committee’s
list. As has already been observed, the United Kingdom is now seeking that his
name should be removed from it. By letter dated 1 October 2009 the Treasury’s
Sanctions Team informed his solicitors that the de-listing request was
submitted on 26 June 2009 but that at the committee’s first consideration of it
a number of States were not in a position to accede to the request. Further
efforts to obtain de-listing are continuing, but this has still not been
achieved. So he remains subject to the AQO. In this situation he too is being
denied an effective remedy.”
The Supreme Court found unlawful both the order
implementing Resolution 1373 (2001) in a general counter-terrorism context (the
“Terrorism Order”) and the order implementing the al-Qaeda and Taliban
resolutions (the “al-Qaeda Order”). However, it annulled the al-Qaeda Order
only in so far as it did not provide for an effective remedy (see Lord Brown’s
dissenting opinion on this point).
(b) The case ofAbdelrazik
v. Canada (Minister of Foreign Affairs)(Canadian Federal Court)
In itsjudgment of 4 June 2009 in the case
ofAbdelrazik v. Canada (Minister of Foreign Affairs), the Federal
Court of Canada took the view that the listing procedure of the al-Qaeda and
Taliban Sanctions Committee was incompatible with the right to an effective
remedy. The case concerned a ban on the return to Canada of the applicant, who
had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council resolutions establishing the sanctions regime. The applicant
was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary.
Zinn J, who pronounced the lead judgment in the
case, stated in particular:
“[51] I add my name to
those who view the 1267 Committee 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 de-listing procedure that recognizes the
principles of natural justice or that provides for basic procedural fairness.”
100. He further
observed:
“[54] ...it is frightening to
learn that a citizen of this or any other country might find himself on the
1267 Committee list, based only on suspicion.”
After reviewing the measures implementing the
travel ban on the basis of the al-Qaeda and Taliban resolutions, the judge
concluded that the applicant’s right to enter Canada had been breached,
contrary to the provisions of the Canadian Charter of Rights and Freedoms (see
paragraphs 62 et seq. of the judgment).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Compatibility of the complaints with the Convention
and Protocols thereto
1. The parties’ submissions
(a) The respondent Government
The Government requested the Court to declare
the application inadmissible as being incompatibleratione personaewith
the Convention. They argued that the impugned measures had been based onSecurity
CouncilResolutions (1267 (1999) et seq.), which, under Articles 25 and 103 of
the United Nations Charter, were binding and prevailed over any other
international agreement. In this connection they referred in particular to
theprovisional measures order of the International Court of Justice in the case
concerningQuestions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie ((Libyan Arab
Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April
1992, ICJ Reports 1992, p. 15, § 39):
“Whereas both Libya and the United Kingdom, as Members of the
United Nations, are obliged to accept and carry out the decisions of the Security
Council in accordance with Article 25 of the Charter; whereas the Court, which
is at the stage of proceedings on provisional measures, considers that prima
facie this obligation extends to the decision contained in resolution 748
(1992); and whereas, in accordance with Article 103 of the Charter, the
obligations of the Parties in that respect prevail over their obligations under
any other international agreement, including the Montreal Convention;”
The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the
measures at issue.
The Government added that those measures,
emanating as they did from the United Nations Security Council,fell outside the
scope of the Court’s review. The application in the present case was therefore
also inadmissible ratione materiae.
(b) The applicant
The applicant argued that his application was
compatibleratione personaewith the Convention. He took the view that the
direct effect of the obligations under the Security Council resolutions was
irrelevant to the issue of whether or not the restrictions imposed on him were
attributable to the respondent State, since those restrictions had been
authorised by the Government at national level in accordance with Article 190
of the Federal Constitution. Relying on Article 27 of the Vienna Convention on
the Law of Treaties,he added that Switzerlandcould not hide behind its domestic
legal arrangements when it came to fulfilling its international obligations
(see paragraph 79 above).
The applicant also took the view that the Swiss
authorities had applied the possibilities of derogationenvisaged in the Security
Council resolutions in a much more restrictive manner than was required by the
sanctions regime. The Federal Court itself had noted this in its judgment of 14
November 2007. Rather than automatically having to implement the Security
Council resolutions, the national authorities had thereforeenjoyed a certain
margin of appreciation in taking the measures at issue. The applicant added in
this connection that his delisting, as decided by the Sanctions Committee on 23
September 2009, had not taken effect in Switzerlanduntil a week later. He saw
this as further proof that the application of the Security Council resolutions
was not automatic.
Lastly, the applicant argued that it was not a
matter, in the present case, of calling into question the primacy of the United
Nations Charter under Article 103 thereof – a finding of a violation of the
Convention not being, in his opinion, capable of affecting the validity of
States’ international obligations – but simply of ensuring that the Charter was
not used as a pretext to avoid compliance with the provisions of the
Convention.
2. Submissions of third-party interveners
(a) The French Government
The French Government took the view that the
reservation of Convention observance, in the sense of ensuring “equivalent
protection”, could not be applied appropriately in the present case because the
measures laid down by Switzerland arose necessarily from the UN Security
Council resolutions, which all States were required to apply and which also had
to be given precedence over any other international rule. In those
circumstancesFrancewas of the view that the measures in question could not be
regarded as falling within Switzerland’s “jurisdiction” for the purposes of
Article 1 of the Convention; otherwise that notion would be rendered
meaningless.
The French Government pointed out that,
although in its judgment of 30 June 2005 in the case of Bosphorus Hava
Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no.
45036/98, ECHR 2005‑VI) the Court had regarded as compatible with Article
1 of the Convention an application disputing the validity of a national measure
simply implementing a regulation of the European Communities that itself
stemmed from a Security Council resolution, the Court had noted in that
judgment that it was the EC regulation and not the Security Council resolution
that constituted the legal basis of the national measure in issue (ibid., §
145).
The French Government were also convinced that,
even though the measures in issue did not concern missions conducted outside
the territory of the member States, like those in the cases of Behrami and
Behrami v. France and Saramati v. France, Germany and Norway
((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007), but rather measures
implemented in domestic law, the arguments emerging from that case-law, which
stemmed from the nature of the Security Council’s missions and States’
obligations arising therefrom, should lead the Court likewise to declare the
disputed measures attributable to the UN and thus to find the applicant’s
complaints incompatible ratione personae with the Convention. Thus they
argued that the present case provided the Court with an opportunity to
transpose onto the member States’ actual territory the principles established
in Behrami and Behrami, taking into account the hierarchy of
international law norms and the various legal spheres arising therefrom.
The French Government also pointed out that, in
its Kadijudgment (see paragraph 83 above), the Court of Justice of the
European Communities had relied on the constitutional nature of the EC Treaty
for its review of a regulation implementing Security Council resolutions. Such
considerations being absent in the present case, the French Government had
difficulty conceiving what could justify a finding by the Court, in disregard
of Article 103 of the UN Charter, that Switzerland was responsible for the
implementation of resolutions that it was required to apply and to which it
also had to give precedence over any other undertaking.
(b) The United Kingdom Government
The United Kingdom Government observed that the
entry and transit ban had been imposed on the applicant in the context of the
Taliban Ordinance, which they regarded as having merely implemented Security
Council resolutions that were binding on all States, having been adopted under
Chapter VII of the United Nations Charter (Article 25 thereof): the obligations
arising from those resolutions thus took precedence, under Article 103 of the
Charter, over all other international agreements. In this connection the United
Kingdom Government were of the opinion that the effectiveness of the sanctions
regime set up to maintain international peace and security would be seriously
compromised if priority were given to the rights arising from Articles 5 or 8
of the Convention. They took the view that,
particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council
had used “clear and explicit language” to impose on States specific measures
that might conflict with their other international obligations, in particular
those arising from human rights instruments. Referring to the judgment
recently delivered in the case of Al‑Jedda v. the
United Kingdom ([GC], no. 27021/08, § 102,
ECHR 2011), they thus argued that the
respondent State had been obliged to apply the measures in issue.
(c) JUSTICE
The organisation JUSTICE considered that the
sanctions regime established by Security Council Resolution 1267 (1999) was the
source of the draconian restrictions on the Convention rights of the listed
persons and their families, in particular the right to respect for private and
family life, the right to the enjoyment of property and freedom of movement.
The severity of that interference with Convention
rights was exacerbated by the inability of the listed persons to challenge
effectively the decision to list them, including the evidential basis for the
decision. Consequently, the sanctions regime also failed to afford those
persons and their families the right of access to a court and the right to an
effective remedy. JUSTICEtook the view that the procedures of the sanctions
committee did not therefore provide equivalent protection for those Convention
rights.
Those conclusions, it observed, were reflected
in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism
and Human Rights, the UN Special Rapporteur on Terrorism and Human Rights and
in the decisions of the Federal Court of Canada (Abdelrazik), the United
Kingdom Supreme Court (Ahmed) and the European Court of Justice (Kadi)
(see “Relevant international case-law” and “Relevant case-law of other States”,
paragraphs82-92 and 93-101, above).
JUSTICEwas convinced that the Court was not
obliged to interpret Article 103 of the Charter in such a manner that it would
result in Convention rights being displaced. In particular, the “maintenance of
international peace and security”, though the primary function of the Security
Council, was not the pre-eminent principle either of international law or of
the Charter. At least equal importance was to be attached to the principle of
respect for fundamental rights, as indeed was reflected in the Preamble to the
Charter.
3. The Court’s assessment
In the light of the arguments set out by the
parties and third-party interveners, the Court must determine whether it has
jurisdiction to entertain the complaints raised by the applicant. For that
purpose it will have to examine whether the application falls within the scope
of Article 1 of the Convention and thus engages the responsibility of the
respondent State.
(a) Compatibilityratione personae
Article 1 of the Convention reads as follows:
“The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of [the]
Convention.”
As provided by this Article, the engagement
undertaken by a Contracting State is confined to “securing” (“reconnaître”
in the French text) the listed rights and freedoms to persons within its own
“jurisdiction” (see Al-Skeini and Othersv. the United Kingdom[GC], no.
55721/07, § 130, ECHR 2011;Al-Jedda,
cited above, § 74; Banković
and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no.
52207/99, § 66, ECHR 2001‑XII;andSoering
v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). “Jurisdiction”
under Article 1 is a threshold criterion for a Contracting State to be able to
be held responsible for acts or omissions attributable to it which give rise to
an allegation of infringement of rights and freedoms set forth in the
Convention (see Al-Skeini and Others, cited above,§ 130; Al-Jedda,
cited above, § 74; andIlaşcu and Others v. Moldova and Russia [GC],
no. 48787/99, § 311, ECHR 2004‑VII).
The notion of jurisdiction reflects the meaning
given to that term in public international law (see Assanidzev. Georgia,
no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Othersv. France, nos.
48205/99, 48207/99 and 48209/99, § 20, 14 May 2002;andBanković and
Others, cited above, §§ 59-61), such that a State’s jurisdiction is
primarily territorial (see Al-Skeini and Others, cited above,
§ 131, andBanković and Others, cited above,§ 59) and is
presumed to be exercised normally throughout the State’s territory (see Ilaşcu
and Others, cited above, § 312).
Relying on the Court’s decision inBehrami
and Behrami (cited above), the intervening French Government, in
particular, argued that the measures taken by the member States of the United
Nations to implement Security Council resolutions under Chapter VII of the
Charter wereattributable to the United Nations and were thus incompatibleratione
personae with the Convention.The Court cannot endorse that argument. It
would point out that it foundin Behrami and Behramithat the impugned
acts and omissions of KFOR, whose powers had been validly delegated to it by
the Security Council under Chapter VII of the Charter,and those ofUNMIK, a
subsidiary organ of the United Nations set up under the same Chapter, were
directly attributable to the United Nations, an organisation of universal
jurisdiction fulfilling its imperative collective security objective (ibid., §
151). In the present case, by contrast, the relevant Security Council
resolutions, especiallyResolutions 1267 (1999), 1333 (2000), 1373 (2001) and
1390 (2002), required States to act in their own names and to implement them at
national level.
In the present case the measures imposed by the
Security Council resolutions were implemented at national level by an Ordinance
of the Federal Council and the applicant’s requests for exemption from the ban
on entry into Swiss territory were rejected by the Swiss authorities (the IMES,
then the ODM). The acts in question therefore relate to the national
implementation of UN Security Council resolutions(see, mutatis mutandis,
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited
above, § 137, and contrastBehrami and Behrami, cited above, § 151).
The alleged violations of the Convention are thus attributable to Switzerland.
The measures in issue were therefore taken in
the exercise by Switzerland of its “jurisdiction” within the meaning of Article
1 of the Convention. The impugned acts and omissions are thus capable of
engaging the respondent State’s responsibility under the Convention. It also
follows that the Court has jurisdictionratione personaeto entertain the
present application.
Accordingly, the Court dismisses the objection
that the application isincompatible ratione personaewith the Convention.
(b) Compatibilityratione materiae
The respondent Government argued that the
present application was also incompatible ratione materiaewith the
Convention. In this connection they emphasised the binding nature of the
resolutions adopted by the Security Council under Chapter VII of the United
Nations Charter and its primacy over any other international agreement, in
accordance with Article 103 thereof.
The Court finds that these arguments
concernmore the merits of the complaints than their compatibility with the
Convention. Consequently, the respondent Government’s objection as to the
incompatibilityratione materiaeof the application with the Conventionshould
be joined to the merits.
B. Whether the applicant is a “victim”
1. The parties’ submissions
The respondent Government pointed out that on
23 September 2009 the applicant’s name had been deleted from the list
annexed to the Security Council resolutions providing for the impugned
sanctions and on 29 September 2009 the Taliban Ordinance had been amended
accordingly, with effect from 2 October 2009. Thus, they argued, the impugned
measures against the applicant had been completely discontinued. In the
Government’s opinion, the dispute had therefore been resolved within the
meaning of Article 37 § 1 (b) of the Convention and, as a result, they asked
the Court to strike the application out of its list, in accordance with that
provision.
The applicant disagreed with that argument. He
took the view that the mere fact that the situation had evolved in such a way
that his name had been deleted from the Sanctions Committee’s list, that the
Taliban Ordinance had been amended accordingly and that the sanctions against
him had been lifted, since the beginning of October 2009, had not deprived him
of his victim status as regards the breaches of his rights prior to that date.
2. The Court’s assessment
It is the settled case-law of the Court that
the word “victim” in the context of Article 34 of the Convention denotes the
person directly affected by the act or omission in issue, the existence of a
violation of the Convention being conceivable even in the absence of prejudice;
prejudice is relevant only in the context of Article 41. Consequently, a
decision or measure favourable to an applicant is not in principle sufficient
to deprive him of his status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress for,
the breach of the Convention(see, among other authorities, Gäfgen
v. Germany [GC], no. 22978/05, § 115, ECHR 2010;Association Ekin
v. France (dec.), no. 39288/98, 18 January 2000;Brumărescu
v. Romania [GC], no. 28342/95, § 50, ECHR 1999‑VII;Amuur
v. France, 25 June 1996, § 36, Reports of Judgments and Decisions
1996‑III; and Eckle v. Germany, 15 July 1982, § 66, Series A no.
51).
In the present case, the Court observes that
the sanctions imposed on the applicant have been lifted and that he is now
authorised to cross the border of Campione d’Italia to enter or pass through Switzerland freely. However, the lifting of sanctions, which was not decided until
September-October 2009, has not deprived the applicant of his status as victim
of the restrictions from which he suffered from the time his name was added, in
November 2001, to the Sanctions Committee’s list and to the list annexed to the
Taliban Ordinance, or at least from 27 November 2003, when he was
informed that he was no longer authorised to cross the border (see
paragraph 26 above). The lifting of the sanctions cannot be regarded as an
acknowledgment by the Government, even implicitly, of a violation of the Convention,
for the purposes of the above-cited case-law. Moreover, it was not followed by
any redress within the meaning of that case-law.
Accordingly, the applicant may claim to have
been the victim of the alleged violations of the Convention for a period of at
least six years. As a result, the Government’s objection as to an alleged lack
of victim status should be dismissed.
C. Whether domestic remedies have been exhausted
1. The parties’ submissions
(a) The respondent Government
The respondent Government observed that,
according to the Security Council’s sanctions regime, exemptions from the entry
and transit ban could be granted when they were necessary for the fulfilment of
a judicial process, or for other reasons, in particular of a medical,
humanitarian or religious nature, subject to the approval of the Sanctions
Committee (see Resolution 1390 (2002),paragraph 2(b)). To take account of such
situations, Article 4a § 2 of the Taliban Ordinance provided that the Federal
Office of Migration (the ODM) could, in accordance with the decisions of the
Security Council or for the protection of Swiss interests, grant exemptions.
The Government contended thatthe various
decisions given by the Office had not been appealed against, and the action
taken before it concerned only the question of the delisting of the applicant
and the organisations associated with him from Annex 2 to the Taliban Ordinance.
The Government pointed out that, bothbefore and
after the Federal Court’s judgment, the applicant had not appealed against any
decision of the former Federal Office for Immigration, Integration and Emigration
(the IMES, incorporated into the ODM on its creation in 2005) or of the ODM
concerning exemptions from the sanctions regime. In addition, the authorities
had granted exemptions (in decisions of 20 September 2006 and 11 September
2008) that had not been used by the applicant. The applicant had explained in
this connection that the duration of the exemptions had not been sufficient, in
view of his age and the distance to be travelled, for him to make the intended
journeys. On this subject the Government pointed out that the first exemption,
for one day, had been granted for a journey to Milan in connection with
judicial proceedings, and that it took only one hour to drive from Campione d’Italia
to the centre of Milan. The second exemption, for two days, had been granted to
the applicant for a journey to Berne and Sion, both cities being less than
three and a half hoursaway from Campione by car.
Lastly, the Government argued that the
applicant could at any time have requested to move house, even temporarily, to
another part of Italy, the country of which he was a national. Such a request
would have been submitted by the competent Swiss authority (the IMES, then the
ODM) to the Sanctions Committee. As the sanctions had been formulated in
general terms, the Government were of the opinion that the Committee would most
probably have authorised the applicant’s move.
For these reasons the Government submitted that
the applicant had failed to exhaust domestic remedies.
(b) The applicant
Concerning the first three refusals by the ODM
(26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended
that there was no clear domestic case-law as to whether the Swiss authorities
had any margin of appreciation in the granting of exemptions from the
restrictions imposed on him and that no clarification had been provided by the Federal
Court in this connection. Furthermore, no action appeared to have been taken by
the ODM or any other authority to clarify the position regarding the grant of
exemptions. In his submission it could not therefore be said that an effective
remedy, within the meaning of the Court’s case-law, was available.
As regards the Government’s argument that he
had failed to make use of the exemptions granted to him by the ODM (on 20
September 2006 and 11 September 2008), he alleged that they concerned only a
partial lifting of the measures imposed on him, in respect of very
specificsituations. Given his age and the length of the journeys involved, he
argued that the exemptions for one or two days were far from sufficient.
As to the general sanctions regime, the
applicant submitted that he had exhausted domestic remedies, because he had
challenged before the Federal Court the restrictions imposed by the Taliban
Ordinance, of which he complained before the Court.
The applicant further observed that the
Government’s argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting waspurely
speculative. He also pointed out that such an option – which he did not consider
possible in his case, particularly because of the freezing of his assets by the
sanctions regime and the fact that it had not been envisaged by the Federal
Court – would in any event have provided redress only for part of the impugned
restrictions.
2. The Court’s assessment
The Court reiterates that the only remedies
Article 35 of the Convention requires to be exhausted are those that are
available and sufficient and relate to the breaches alleged (see Tsomtsos
and Others v. Greece, 15 November 1996, § 32, Reports 1996‑V).
The burden of proof is on the Government
claiming non-exhaustion to satisfy the Court that an effective remedy was
available in theory and in practice at the relevant time; that is to say, that
the remedy was accessible, capable of providing redress in respect of the
applicant’s complaints and offered reasonable prospects of success (see V.
v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX).
Moreover, an applicant who has availed himself
of a remedy that is apparently effective and sufficient cannot be required also
to have tried others that were available but probably no more likely to be
successful (see, for example, Aquilina v. Malta [GC],
no. 25642/94, § 39, ECHR 1999‑III, and Manoussakis and Othersv.
Greece, 26 September 1996, § 33, Reports 1996‑IV).
In the present case the Court notes that the
applicant did not challenge the refusals by the IMES and the ODM to grant his
requests for exemption from the sanctions regime and that on two occasions he
was granted exemptions that he did not use (see paragraphs 34 and 57above).
However, even supposing that those exemptions had
alleviated certain effects of the sanctions regime, by allowing him to leave
the enclave of Campione d’Italia for medical or legal reasons, the Court is of
the view that the issue of exemptions was part of a broader situation whose
origin lay in the addition by the Swiss authorities of the applicant’s name to
the list annexed to the Taliban Ordinance, which was based on the Sanctions
Committee’s list.In this connection, it should be observed that the applicant
submitted many requests to the national authorities for the deletion of his
name from the list annexed to the Taliban Ordinance – requests that were denied
by the SECO and the Federal Department for Economic Affairs (see paragraphs
30-32 above). The Federal Council, to which he appealed against the Department’s
decision, referred the case to the Federal Court.In a judgment of
14 November 2007, that court dismissed his appeal without examining the
merits of the complaints under the Convention. Consequently, the Court takes
the view that the applicant has exhausted domestic remedies relating to the
sanctions regime as a whole, the application of which in his case stemmed from
the addition of his name to the list annexed to the Taliban Ordinance.
In these circumstances, the Court does not find
it necessary to address, at this stage, the argument raised by the Government
to the effect that the applicant could have been reasonably expected to move
from Campione d’Italia, where he had been living since 1970, to another region
of Italy. That question will, by contrast, play a certain role when it comes to
examining the proportionality of the impugned measures (see paragraph
190below).
As to the complaintunder Article 8that the addition
of the applicant’s name to the list annexed to the Taliban Ordinance had
impugned his honour andreputation, the Court acknowledges that it was raised,
at least in substance, before the domestic authorities. The applicant indeed
claimed that theaddition of his name to the Sanctions Committee’s list was
tantamount to accusing him publicly of being associated with Osama bin Laden,
al-Qaeda and the Taliban, when that was not the case (see paragraphs33 and
38above).
Consequently, the Courtdismisses the Government’s
objection as to the inadmissibility of the application for failure to exhaust
domestic remediesin respect of the applicant’s complaints under Articles 5 and
8.
As regards the complaint under Article 13, the
Courtfinds that the objection of non-exhaustion of remedies is closely linked
to the merits of the complaint. Accordingly, the Court joins it to the merits.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the measure by
which he was prohibited from entering or passing through Switzerlandhad breached his right to respect for his private life, including his
professional life, and his family life. He contended that this banhad prevented
him from seeing his doctors in Italy or in Switzerland and from visiting his
friends and family. He further claimed that the addition of his name to the
list annexed to the Taliban Ordinance had impugned his honour and reputation.
In support of these complaints he relied on Article 8 of the Convention, which
reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
The Court finds that it should first examine
the applicability of Article 8 in the present case.
It reiterates that “private life” is a broad
term not susceptible to exhaustive definition (see, for example,Glor
v. Switzerland, no. 13444/04, §
52, ECHR 2009;Tysiąc v. Poland, no. 5410/03, § 107,
ECHR 2007‑I;Hadri-Vionnet v. Switzerland, no. 55525/00, § 51,
14 February 2008;Pretty v. the United Kingdom, no. 2346/02, § 61,
ECHR 2002‑III;andS. and Marper v. the United Kingdom [GC], nos.
30562/04 and 30566/04, § 66, ECHR 2008).The Court has found that health,
together with physical and moral integrity, falls within the realm of private
life (seeGlor, cited above, § 54, and X and Y v. the Netherlands,
26 March 1985, § 22, Series A no. 91; see also Costello-Roberts v. the
United Kingdom, 25 March 1993, § 36, Series A no. 247‑C). The
right to private life also encompasses the right to personal development and to
establish and develop relationships with other human beings and the outside
world in general (see, for example, S. and Marper, cited above, § 66).
It should moreover be observed that Article 8
also protects the right to respect for “family life”. Under that provision the
State must in particular act in a manner calculated to allow those concerned to
lead a normal family life (see Marckx v. Belgium, 13 June 1979, § 31,
Series A no. 31). The Court determines the existence of family life on a
case-by-case basis, looking at the circumstances of each case. The relevant
criterion in such matters is the existence of effective ties between the
individualsconcerned (ibid.; see also K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII, and Şerife Yiğit v. Turkey[GC], no. 3976/05, § 93, 2 November 2010).
The Court would further reiterate that Article
8 also protects the right to respect for one’s home (see, for example,Gillow
v. the United Kingdom, 24 November 1986, § 46, Series A no. 109).
In the light of that case-law, the Court finds
that the complaints submitted by the applicant under Article 8 are indeed to be
examined under that Article. It cannot be excluded that the measure prohibiting
him from entering Switzerland prevented him – or at least made it more
difficult for him – to consult his doctors in Italy or Switzerland or to visit his friends and family. Article 8 therefore applies in the present
case in both its “private life” aspect and its “family life” aspect.
Furthermore, this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention and no other
ground for declaring it inadmissible has been established. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant allegedthat the restrictions on
his freedom of movement had prevented him from taking part in family events
(such as funerals or weddings) which had taken place during the period when he
was unable to travel freely on account of the sanctions regime. He thus claimed
to be a victim of a violation of his right to respect for his private and
family life. In this connection, he contended that his status as an Italian
national, not resident on the territory of the respondent State, did not
prevent him from complaining of a violation of his rights bySwitzerland, especially given the very special situation of the Campione d’Italia enclave,
being surrounded by Swiss territory. He even took the view that, given the
integrationof Campione d’Italia into the Canton of Ticino, in particular its
economic integration, it would have been appropriate for the Swiss authorities
to treat him as a Swiss national for the purposes of the sanctions regime.
Moreover, he asserted that, contrary to the Government’s allegation, he did not
have the option of living elsewhere in Italy.
The applicant further observed that the
addition of his name to the list annexed to the Taliban Ordinance had caused
damage to his honour and reputation, since that list enumerated persons
suspected of helping to finance terrorism. In support of that view he referred
to the case of Sayadi and Vinck v. Belgium (see paragraphs 88-92 above)
in which the Human Rights Committee found that the addition of the complainants’
namesto the Sanctions Committee’s listhad constituted an unlawful attack on
their honour.
In the applicant’s submission, those
circumstances were aggravated by the fact that he had never been given an
opportunity to challenge the merits of the allegations against him.
There had thus been a violation of Article 8 on
variousaccounts.
(b) The respondent Government
The Government observed that the applicant had
been free to receive all the visits he wished in Campione d’Italia,in
particular from his grandchildren. The applicant had not alleged that it would
have been impossible or particularly difficult for his family or friends to go
to Campione d’Italia, where he could have carried on his family and social life
as he saw fit, without any restriction whatsoever. As regards exceptional
events, such as the marriage of a friend or relative, he could have sought an
exemption from the applicable rules. In addition, as shown in connection with
the exhaustion of domestic remedies, the applicant could have requested to move
to another part of Italy. Lastly, the Convention did not protect the right of a
foreign national to visit a State that hadprohibited him from entering it
simply so that he could maintain his residence in an enclave which he could not
leave without crossing that State. For all those reasons the Government were of
the opinion that the disputed measures did not constitute interference with the
rights guaranteed by Article 8.
In response to the applicant’s allegation that
he had never been able to find out the factors which had led to the impugned
measures, or to challenge them before a court, the Government stated that, as
shown in their earlier observations, the impugned measures had not breached the
applicant’s rights under Article 8. Consequently, the procedural aspect of that
provision was not applicable.
For those reasons the Government were of the
opinion that the restrictions imposed did not constitute an interference with
the applicant’s rights under Article 8. If the Court were to find otherwise,
the Government argued that the measure was in any event necessary in a
democratic society under Article 8 § 2.
2. The Court’s assessment
(a) Whether there has been an interference
The Court finds it appropriate to begin by
examining the applicant’s allegation that he sustained interference with his
right to respect for his private and family life on account of the fact that he
was prohibited from entering or passing through Switzerland.
The Court reiterates that a State is entitled,
as a matter of well-established international law and subject to its treaty
obligations, to control the entry of non-nationals into its territory. In other
words, the Convention does notas such guarantee the right ofan alien to enter a
particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008;Üner v. the Netherlands [GC],
no. 46410/99, § 54, ECHR 2006‑XII;Boujlifa v. France,
21 October 1997, § 42, Reports 1997‑VI;and Abdulaziz,
Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67,
Series A no. 94).
In the present case, the Court observes that
the Federal Court found that the impugned measure constituted a significant
restriction on the applicant’s freedom (see paragraph 52above), as he was in a
very specific situation on account of the location of Campione d’Italia, an
enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that
opinion. It takes the viewthat the measure preventing the applicant from
leaving the very confined area of Campione d’Italia for at least six years was
likely tomake it more difficult for him to exercise his right to maintain
contact with others – in particular his friends and family– living outside the
enclave (see, mutatis mutandis, Agraw v. Switzerland,
no. 3295/06, § 51, andMengesha
Kimfe v. Switzerland, no. 24404/05, §§
69-72, both judgments of 29 July
2010).
In view of the foregoing, the Court finds that
there has been an interference with the applicant’sright to respect for his
private and family life within the meaning of Article 8 § 1.
(b) Whether the interference was justified
The interference with the applicant’s right to
respect for his private and family life, as found above, will breach Article 8
unless it satisfies the requirements of paragraph 2 of that provision. It thus
remains to be determined whether it was “in accordance with the law”, pursued
one or more of the legitimate aims enumerated in that paragraphand was
“necessary in a democratic society” to achieve such aims. The Court finds it
appropriate first to reiterate certain principles that will guide it in its
subsequent examination.
(i) General principles
According
to established case-law, a Contracting Party is responsible under
Article 1 of the Convention for all acts and omissions of its organs regardless
of whether the act or omission in question was a consequence of domestic law or
of the necessity to comply with international legal obligations. Article 1 makes
no distinction as to the type of rule or measure concerned and does not exclude
any part of a Contracting Party’s “jurisdiction” from scrutiny under the
Convention (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi,cited above, § 153, andUnited
Communist Party of Turkey and Others v. Turkey, 30 January 1998, §
29, Reports 1998-I).Treaty
commitments entered into by a State subsequent to the entry into force of the
Convention in respect of that State may thus engage its responsibility for Convention
purposes (see Al‑Saadoon and Mufdhi v. the United Kingdom,
no. 61498/08, § 128, ECHR 2010, andBosphorus Hava Yolları
Turizm ve Ticaret Anonim Şirketi,cited above, § 154,and the cases
cited therein).
Moreover,
the Court reiteratesthat the Convention cannot be interpreted in a vacuum but
must be interpreted in harmony with the general principles of international
law. Account should be taken, as indicated in Article 31 § 3 (c) of the 1969
Vienna Convention on the Law of Treaties, of “any relevant rules of
international law applicable in the relations between the parties”, and in
particular the rules concerning the international protection of human rights
(see, for example, Neulinger and Shuruk v. Switzerland [GC], no.
41615/07, § 131, ECHR 2010; Al‑Adsani v. the United Kingdom
[GC], no. 35763/97, § 55, ECHR 2001-XI; andGolder
v. the United Kingdom, 21 February 1975, § 29, Series A
no. 18).
When creating new international obligations,
States are assumed not to derogate from their previous obligations. Where a
number of apparently contradictory instruments are simultaneously applicable,
international case-law and academic opinion endeavour to construe them in such
a way as to coordinate their effects and avoid any opposition between them. Two
diverging commitments must therefore be harmonised as far as possible so that
they produce effects that are fullyin accordance with existing law(see, to this
effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited
above, § 55; and theBanković decision,cited above, §§ 55-57; see
also the references cited in the ILC
study group’s report entitled “Fragmentation of international law: difficulties
arising from the diversification and expansion of international law”,paragraph 81 above).
As regards, more specifically, the question of
the relationship between the Convention and Security Council resolutions, the Court found as follows in itsAl-Jeddajudgment
(cited above):
“101. Article 103 of the United Nations Charter
provides that the obligations of the Members of the United Nations under the
Charter shall prevail in the event of a conflict with obligations under any
other international agreement. Before it can consider whether Article 103 had
any application in the present case, the Court must determine whether there was
a conflict between the United Kingdom’s obligations under United Nations
Security Council Resolution 1546 and its obligations under Article 5 § 1 of the
Convention. In other words, the key question is whether Resolution 1546 placed
the United Kingdom under an obligation to hold the applicant in internment.
102. In its approach to the interpretation of
Resolution 1546, the Court has reference to the considerations set out in
paragraph 76 above. In addition, the Court must have regard to the purposes for
which the United Nations was created. As well as the purpose of maintaining
international peace and security, set out in the first subparagraph of Article
1 of the United Nations Charter, the third subparagraph provides that the
United Nations was established to ‘achieve international cooperation in ...
promoting and encouraging respect for human rights and fundamental freedoms’.
Article 24(2) of the Charter requires the Security Council, in discharging its
duties with respect to its primary responsibility for the maintenance of
international peace and security, to ‘act in accordance with the Purposes and
Principles of the United Nations’. Against this background, the Court considers
that, in interpreting its resolutions, there must be a presumption that the
Security Council does not intend to impose any obligation on Member States to
breach fundamental principles of human rights. In the event of any ambiguity in
the terms of a Security Council Resolution, the Court must therefore choose the
interpretation which is most in harmony with the requirements of the Convention
and which avoids any conflict of obligations. In the light of the United
Nations’ important role in promoting and encouraging respect for human rights,
it is to be expected that clear and explicit language would be used were the
Security Council to intend States to take particular measures which would
conflict with their obligations under international human rights law.”
The Grand Chamberconfirms those principles.
However, in the present case it observes that, contrary to the situation in Al-Jedda,
where the wording of the resolution at issue did not specifically mention
internment without trial, Resolution 1390 (2002) expressly required States to
prevent the individuals on the United Nations list from entering or transiting
through their territory. As a result, the above-mentioned presumptionis rebutted
in the present case, having regard to the clear and explicit language, imposing
an obligation to take measures capable of breaching human rights, that was used
in that resolution (see also paragraph 7 of
Resolution 1267 (1999), paragraph70above, in which the Security
Council was even more explicit in setting aside any other international
obligations that might be incompatible with the resolution).
(ii) Legal basis
The Court notes that the question of the
existence of a legal basis is not a matter of dispute between the parties.It
observes that the impugned measures were taken pursuant to the Taliban
Ordinance, adopted to implement the relevant Security Council resolutions. To
be precise, the ban on entry into and transit through Switzerland was based on Article 4a of that Ordinance (see paragraph66above). The measures
therefore had a sufficient legal basis.
(iii) Legitimate aim
The applicant did not appear to deny that the
impugned restrictions were imposed in pursuit of legitimate aims. The Court
finds it established that those restrictions pursued one or more of the
legitimate aims enumerated in Article 8 § 2: first, they sought to prevent
crime, and second, as the relevant Security Council resolutions had been
adopted to combat international terrorism under Chapter VII of the United
Nations Charter (“Action with respect to threats to
the peace, breaches of the peace, and acts of aggression”), they were
also capable of contributing to Switzerland’s national security and public
safety.
(iv) “Necessary in a democratic society”
(α) Implementation of Security Council
resolutions
The respondent Government, together with the
French and United KingdomGovernments, intervening as thirdparties, argued that
the Swiss authorities had no latitude in implementing the relevant Security
Council resolutions in the present case. The Court must therefore first examine
those resolutions in order to determinewhether they left States any freedom in
their implementation and, in particular, whether they allowed the authorities
to take into account the very specific nature of the applicant’s situation and
therefore to meet the requirements of Article 8 of the Convention. In order to
do so, it will particularly take account of the wording of those resolutions
and the context in which they were adopted (see Al-Jedda,cited above,
§ 76, with the reference cited therein to the relevant case-law of the
International Court of Justice). It will moreover have regard to the objectives
pursued by those resolutions (see, to that effect, the Kadi judgment of
the CJEC,§ 296, paragraph86 above), as stated mainly in the preambles thereto,
read in the light of the purposes and principles of the United Nations.
The Court observes that Switzerland did not became a member of the United Nations until 10 September 2002: it had
thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a
member of that organisation,whereas it was already bound by the Convention.
Similarly, it had implemented at domestic levelthe entry and transit ban
concerning the applicant, as required by Resolution 1390 (2002) of 16 January
2002 (see paragraph74above), on 1 May of that year by the amendmentof Article
4a of the Taliban Ordinance. The Court acknowledges that this resolution,
particularly in the light of paragraph 2, was addressed to “all States” and not
only the members of the United Nations. However, the Court observes that the
United Nations Charter does not impose on States a particular model for the
implementation of the resolutions adopted by the Security Council under Chapter
VII. Without prejudice to the binding nature of such resolutions, the Charter
in principle leaves to UN member States a free choice among the various
possible models for transposition of those resolutions into their domestic
legal order. The Charter thus imposes on States an obligation of result,
leaving them to choose the means by which they give effect to the resolutions
(see to the same effect, mutatis mutandis, theKadi judgment of
the CJEC, § 298, paragraph86 above).
In the present case, the applicant mainly
challenged the Swiss entry and transit ban imposed on himin particular through
the implementation of Resolution 1390 (2002). Whilst paragraph 2(b) of that
resolution required States to take such measures, it stated that the ban did
“not apply where entry or transit [was] necessary for the fulfilment of a
judicial process...” (see paragraph74above). In the Court’s view, the term
“necessary” was to be construed on a case-by-case basis.
In addition, in paragraph 8 of Resolution 1390
(2002), the Security Council“[urged] all States 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 ...” (see paragraph 74 above). The wording “where
appropriate” also had the effect of affording the national authorities a
certain flexibility in the mode of implementation of the resolution.
Lastly, the Court would refer to the motion by
whichthe Foreign Policy Commission of the Swiss National Council requested the
Federal Council to inform the UN Security Council that it would no longer
unconditionally be applying the sanctions prescribed against individuals under
the counter-terrorism resolutions (see paragraph63above). Even though that
motion was drafted in rather general terms, it can nevertheless be said that
the applicant’s case was one of the main reasons for its adoption. In any
event, in the Court’s view, the Swiss Parliament, in adopting that motion, was
expressing its intention to allow a certain discretion in the application ofthe
Security Council’s counter-terrorism resolutions.
In view of the foregoing, the Court finds that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in
implementing the relevant binding resolutions of the UN Security Council.
(β) Whether the interference was
proportionate in the present case
An interference will be considered “necessary
in a democratic society” for a legitimate aim if it answers a “pressing social
need” and, in particular, if it is proportionate to the legitimate aim pursued
and if the reasons adduced by the national authorities to justify it are
“relevant and sufficient” (see, for example, S. and Marper, cited above,
§ 101, andCoster v. the United Kingdom[GC], no. 24876/94,
§ 104, 18 January 2001, with the cases cited therein).
The object and purpose of the Convention, being
a human rights treaty protecting individuals on an objective basis (see Neulinger
and Shuruk, cited above, § 145), call for its provisions to be interpreted
and applied in a mannerthat renders its guarantees practical and effective
(see, among other authorities,Artico v. Italy, 13 May 1980, § 33, Series
A no. 37). Thus, in order to ensure “respect” for private and family life
within the meaning ofArticle 8, the realities of each case must be taken into
accountin order to avoid the mechanical application of domestic law to a
particular situation (see, mutatis mutandis, Emonet and
Othersv. Switzerland, no. 39051/03, § 86, 13 December 2007).
The Court
has previously found that, for a measure to be regarded as proportionate and as
necessary in a democratic society, the possibility of recourse to an
alternative measurethat would cause less damage to the fundamental right at
issuewhilst fulfilling the same aimmust be ruled out (see Glor, cited
above, § 94).
In any event, the final evaluation of whether
the interference is necessary remains subject to review by the Court for
conformity with the requirements of the Convention (see, for example, S. and
Marper, cited above, § 101, andCoster, cited above,§ 104).
A margin of appreciation must be left to the competent national authorities in
this connection. The breadth of this margin varies and depends on a number of
factors including the nature of the Convention right in issue, its importance
for the individual, the nature of the interference and the object pursued by
the interference (see S. and Marper,cited above, § 102).
In order to address the question whether the
measures taken against the applicant were proportionate to the legitimate aim
that they were supposed to pursue, and whether the reasons given by the
national authorities were “relevant and sufficient”, the Court must examine
whether the Swiss authorities took sufficient account of the particular nature
of his case and whether they adopted, in the context of their margin of
appreciation, the measures that were called for in order to adapt the sanctions
regime to the applicant’s individual situation.
In doing so, the Court is prepared to take account
of the fact that the threat of terrorism was particularly serious at the time
of the adoption, between 1999 and 2002, of the resolutions prescribing those
sanctions. That is unequivocally shown by both the wording of the resolutions
and the context in which they were adopted. However, the maintaining or even
reinforcement of those measures over the years must be explained and justified
convincingly.
The Court observes in this connection that the
investigations conducted by the Swiss and Italian authorities concluded that
the suspicions about the applicant’s participation in activities related to
international terrorism were clearly unfounded. On 31 May 2005 the Swiss
Federal Prosecutor closed the investigation opened in October 2001 in respect
of the applicant, and on 5 July 2008 the Italian Government submitted to the
Sanctions Committee a request for the applicant’s delisting on the ground that
the proceedings against him in Italy had been discontinued (see paragraph
56above). The Federal Court, for its part, observed that the State which had
conducted the investigations andcriminal proceedings could not itself proceed
with the deletion, but it could at least transmit the results of its
investigations to the Sanctions Committee and request or support the person’s
delisting(see paragraph51above).
In this connection the Court is surprised by
the allegation that the Swiss authorities did not inform the Sanctions
Committee until 2 September 2009 of the conclusions of investigations
closed on 31 May 2005 (see paragraph 61above). Observing, however, that the
veracity of this allegation has not been disputed by the Government, and
without any explanation having been given by the latter for such delay, the
Court finds that a more prompt communication of the investigative authorities’
conclusions might have led to the deletion of the applicant’s name from the
United Nations list at an earlier stage, thereby considerably reducing the period
of time in which he was subjected to the restrictions of his rights under
Article 8 (see, in this connection,Sayadi and Vinck (Human Rights
Committee), § 12, paragraphs 88-92 above).
As regards the scope of the prohibition in
question, the Courtemphasises that it prevented the applicant not only from
entering Switzerland but also from leaving Campione d’Italia at all, in view of
itssituation as an enclave, even to travel to any other part of Italy, the country of which he was a national, without breaching the sanctions regime.
Moreover, the Court considers that the applicant could not reasonably have been required
to move from Campione d’Italia, where he had been living since 1970, to settle
in another region of Italy, especially as it cannot be ruled outthat, as a
result of the freeze imposed by paragraph 1(c) of Resolution 1373 (2001)
(see paragraph73above), he could no longer dispose freely ofall his property
and assets. Regardless of whether a request for authorisation to move house
would have had any chance of success, it should be pointed out that the right
to respect for one’s home is protected by Article 8 of the Convention (see, for
example,Prokopovich v. Russia, no. 58255/00, § 37, ECHR 2004‑XI,
andGillow, cited above, § 46).
The Court would
further observe that the present case has a medical aspect that should not be
underestimated. The applicant was born in 1931 and has health problems (see
paragraph 14above). The Federal Court itself found that, although Article 4a §
2 of the Taliban Ordinance was formulated more as an enabling provision, it did
oblige the authorities to grant an exemption in all cases where the UN
sanctions regime so permitted, as a more far-reaching restriction on individual
freedom of movement would not have been justified either by the Security
Council resolutions or by the public interest and would have been
disproportionate in the light of the applicant’s particular situation (see
paragraph 52above).
In reality, the IMES and the ODM denied a
number of requests for exemption from the entry and transit ban that had been
submitted by the applicant for medical reasons or in connection with judicial
proceedings. He did not appeal against those refusals. Moreover, in the two
cases where his requests were accepted, he waived the use of those exemptions
(for one and two days respectively), finding that their length was not
sufficient for him to make the intended journeys in view of his age and the
considerable distance to be covered. The Court can understand that he may have
found those exemptions to be insufficient in duration, in view of the
above-mentioned factors (see, in particular, paragraph191 above).
It should be pointed out in this connection
that, under paragraph 2(b) of Resolution 1390 (2002), the Sanctions
Committee was entitled to grant exemptions in specific cases, especially for
medical, humanitarian or religious reasons. During the meeting of 22 February
2008 (see paragraph 54above), a representative of the Federal Department of
Foreign Affairs indicated that the applicant could request the Sanctions
Committee to grant a broader exemption in view of his particular situation. The
applicant did not make any such request, but it does not appear, in particular
from the record of that meeting, that the Swiss authorities offered him any
assistance to that end.
It has been established that the applicant’s
name was added to the United Nations list, not on the initiative of Switzerland but on that of the United States of America. Neither has it been disputed that, at least
until the adoption of Resolution 1730 (2006), it was for the State of
citizenshipor residence of the person concerned to approach the Sanctions
Committee for the purposes of the delisting procedure. To be sure, in the
applicant’s caseSwitzerland was neither his State of citizenshipnor his State
of residence, and the Swiss authorities were not therefore competent to
undertake such action. However, it does not appear that Switzerland ever sought to encourageItalyto undertake such action or to offer it assistance for thatpurpose
(see, mutatis mutandis, the case of Sayadi and Vinck (Human
Rights Committee), § 12, paragraphs 88-92 above). It can be seen from the
record of the meeting of 22 February 2008 (paragraph54above) that the
authorities merely suggested that the applicant contact the Italian Permanent
Mission to the United Nations, adding that Italy at that time had a seat on the
Security Council.
The Court acknowledges that Switzerland, along with other States, made considerable efforts that resulted, after a few
years, in improvement to the sanctions regime (see paragraphs 64and78above). It
is of the opinion, however, in view of the principle that the Convention
protects rights that are not theoretical or illusory but practical and
effective (see Artico, cited above, § 33), that it is important in the
present case to consider the measures that the national authorities actually
took, or sought to take, in response to the applicant’s very specific
situation. In this connection, the Court considersin particular that the Swiss
authorities did not sufficiently take into account the realities of the case,
especially the unique geographical situation of Campione d’Italia, the
considerable duration of the measures imposed or the applicant’s nationality,
age and health. It further finds that the possibility of deciding how the
relevant Security Council resolutions were to be implemented in the domestic
legal order should have allowed some alleviation of the sanctionsregime applicable
to the applicant, having regard to those realities, in order to avoid
interference with his private and family life, without however circumventing
the binding nature of the relevant resolutions or compliance with the sanctions
provided for therein.
In the light of the Convention’sspecial
character as a treaty for the collective enforcement of human rights and
fundamental freedoms (see, for example, Soering, cited above, § 87, andIreland
v. the United Kingdom, 18 January 1978, § 239, Series A no. 25),
the Court finds that the respondent State could not validly confine itself to
relying on the binding nature of Security Council resolutions, but should have
persuaded the Courtthat it had taken – or at least had attempted to take – all
possible measures to adapt the sanctions regime to the applicant’s individual
situation.
Thatfinding dispenses the Court from
determining the question, raised by the respondent and intervening Governments,
of the hierarchy between the obligations of the States Parties to the
Convention under that instrument, on the one hand, and those arising from the
United Nations Charter, on the other. In the Court’s view,the important point
is that the respondent Government have failed to show that they attempted, as
far as possible, to harmonise the obligations that they regarded as
divergent(see, in this connection, paragraphs81and170above).
Having regard to all the circumstances of the
present case, the Court finds that the restrictions imposed on the applicant’s
freedom of movement for a considerable period of time did not strike a fair
balance between his right to the protection of his private and family life, on
the one hand, and the legitimate aims of the prevention of crime and the
protection of Switzerland’s national security and public safety, on the other.
Consequently, the interference with his right to respect for private and family
life was not proportionate and therefore not necessary in a democratic society.
(γ) Conclusion
In view of the foregoing, the Court dismisses
the Government’s preliminary objection that the application was incompatibleratione
materiaewith the Convention and, ruling on the merits, finds that there has
been a violation of Article 8 of the Convention. Having regard to that
conclusion, and notwithstanding that the applicant’s allegation that the
addition of his name to the list annexed to the Taliban Ordinance also impugned
his honour and reputation constitutes a separate complaint, the Court finds
that it does not need to examine that complaint separately.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained that he had not had an
effective remedy by which to have his Convention complaints examined. He thus
alleged that there had been a violation of Article 13, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
The Court observes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It finds, moreover, that, no other ground for declaring it inadmissible has
been established. The complaint should thus be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant argued, relying on the Al-Nashif
v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests
of the protection of sources and information critical to national security, on
the one hand, and the right to an effective remedy, on the other,could be
reconciled through a specially adapted procedure. In the present case, however,
no such procedure had beenavailable, either before United Nations bodies or
beforethe domestic authorities.
He further pointed out that the above-mentioned
Sayadi and Vinck case (see paragraphs 88-92 above), where the Human
Rights Committeehad concluded that an effective remedy was constituted by the
court order requiring the Belgian Government, which had forwarded the
complainants’ names to the Sanctions Committee in the first place, to submit a
delisting request to that Committee, was not relevant to the present case for
two reasons. First, because he was not complaining that Switzerlandhadfailed to have his name removed from the United Nations list; the Human
Rights Committee hadclearly confirmed that the relevant authority lay entirely
with the Sanctions Committee and not with the State itself. Secondly, in his
case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi
and Vinck, although observing that the respondent Government were obliged
to support the applicant in any endeavour to secure delisting, had not actually
ordered it to do so.
The applicant thus argued that the conformity
of the impugned measures with Articles 3, 8 and 9 of the Convention was not
subject to the scrutiny of any domestic court and that, accordingly, there had
been a violation of Article 13.
(b) The respondent Government
In the Government’s submission, Article 13
required that where an individual had an arguable complaint that there had been
a violation of the Convention, he or she should have a remedy before a
“national authority”. The Government submitted that, having regard to their
previous arguments, the applicant’s complaints were not made out. They argued
that, should the Court decide not to follow that assessment, there had not in
any event been a violation of Article 13 taken together with Article 8 in the
present case.
The Government pointed out that the applicant
had requested the deletion of his name and those of the organisations with
which he was associatedfrom the list annexed to the Taliban Ordinance. That
request had apparently been examined by the Federal Court, which had found that
the applicant did not have an effective remedy in respect of that issue since,
being bound by the Security Council resolutions, it was not able to annul the
sanctions imposed on the applicant. The Federal Court had nevertheless
emphasised that, in that situation, it was for Switzerland to request the
applicant’s delisting or to support such a procedure initiated by him. In this
connection, the Government observed that Switzerland was not itself entitled to
lodge a delisting request – as the applicant did not have Swiss nationality and
did not live in Switzerland –as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant
himself, and it had apparently done so by sending his lawyer a formal
attestation of the discontinuance of criminal proceedings against him.
2. The Court’s assessment
(a) Applicable principles
The Court observes that Article 13 guarantees
the availability at national level of a remedy by which to complain about a
breach of the Convention rights and freedoms. Therefore, although Contracting
States are afforded some discretion as to the manner in which they conform to
their obligations under this provision, there must be a domestic remedy
allowing the competent national authority both to deal with the substance of
the relevant Convention complaint and to grant appropriate relief. The scope of
the obligation under Article 13 varies depending on the nature of the applicant’s
complaint under the Convention, but the remedy must in any event be “effective”
in practice as well as in law, in particular in the sense that its exercise
must not be unjustifiably hindered by the acts or omissions of the authorities
of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21
December 2000, with the cases cited therein, especiallyAksoy v. Turkey,
18 December 1996, § 95, Reports 1996‑VI). Under certain
conditions, the aggregate of remedies provided for under domestic law may
satisfy the requirements of Article 13 (see, in particular,Leander v. Sweden, 26 March 1987, § 77, Series A no. 116).
However, Article 13 requires that a remedy be
available in domestic lawonly in respect of grievances which can be regarded as
“arguable” in terms of the Convention (see, for example, Boyle and Rice
v. the United Kingdom, 27 April 1988, § 54, Series A
no. 131). It does not go so far as to guarantee a remedy allowing a
Contracting State’s laws to be challenged before a national authority on the
ground of being contrary to the Convention (see Costello-Roberts, cited
above, § 40), but seeks only to ensure that anyone who makes an arguable
complaint about a violation of a Convention right will have an effective remedy
in the domestic legal order (ibid., § 39).
(b) Application of those principles to the present
case
The Court is of the opinion that, in view of
its finding of a violation of Article 8 above, the complaint is arguable. It
therefore remains to be ascertained whether the applicant had, under Swiss law,
an effective remedy by which to complain of the breaches of his Convention
rights.
The Court observes that the applicant was able
to apply to the national authorities to have his name deleted from the list
annexed to the Taliban Ordinance and that this could have provided redress for
his complaints under the Convention. However, those authorities did not examine
on the merits his complaints concerning the alleged violations of the
Convention. In particular, the Federal Court took the view that whilst it could
verify whether Switzerland was bound by the Security Council resolutions, it
could not lift the sanctions imposed on the applicanton the ground that they
did not respect human rights (see paragraph50above).
The Federal Court, moreover, expressly
acknowledged that the delisting procedure at United Nations level, even after
its improvement by the most recent resolutions, could not be regarded as an
effective remedy within the meaning of Article 13 of the Convention (ibid.).
The Court would further refer to the finding of
the CJEC that“it is not a consequence of the principles governing the
international legal order under the United Nations 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 the Security Council adopted under Chapter VII
of the Charter of the United Nations” (see the Kadi judgment of the
CJEC, § 299, see paragraph 86 above). The Courtis of the opinion that the same
reasoning must be applied, mutatis mutandis, to the present case, more
specifically to the review by the Swiss authorities of the conformity of the
Taliban Ordinance with the Convention. It further finds that there was nothing
in the Security Council resolutions to prevent the Swiss authorities from
introducing mechanisms to verify the measures taken at national level pursuant
to those resolutions.
Having regard to the foregoing, the Court finds
that the applicant did not have any effective means of obtaining the removal of
his name from the list annexed to the Taliban Ordinance and therefore no remedy
in respect of the Convention violations that he alleged (see, mutatis
mutandis, Lord Hope, in the main part of theAhmed and others judgment,
§§ 81-82, paragraph96 above).
Accordingly, the Court dismisses the
preliminary objection raised by the Government as to the non-exhaustion of
domestic remedies and, ruling on the merits, finds that there has been a
violation of Article 13 taken together with Article 8.
IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
Relying on Article 5 § 1 of the Convention, the
applicant argued that by preventing him from entering or transiting through
Switzerland, because his namewas on the Sanctions Committee’s list, the Swiss
authorities had deprived him of his liberty. Under Article 5 § 4, he complained
that the authorities had not undertaken any review of the lawfulness of the
restrictions to his freedom of movement. Those provisions read as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non- compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person against
whom action is being taken with a view to deportation or extradition.
...
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.
...”
1. Submissions of the parties and third-party
interveners
(a) The Government
The Government, referring to the Guzzardi v.
Italy (6 November 1980, Series A no. 39) and S.F. v.
Switzerland (no. 16360/90, Commission decision of 2 March 1994, Decisions
and Reports 76-B, pp. 13 et seq.) cases, argued that there had been no
“deprivation of liberty” in the present case. They stated that the purpose of
the measure in question had never been to confine the applicant to the territory of Campione d’Italia. Only a ban on entering and transiting through Switzerland had been imposed on him. The fact that the applicant found that his movements
were restricted by the impugned measure was attributable only to himself,
because he had chosen to live in an Italian enclave surrounded by Swiss
territory. Neither the sanctions as decided by the United Nations, nor their
implementation by the Swiss authorities, had obliged him to remaina resident of
Campione d’Italia. At any time he could thus have requested authorisation to
transfer his home to another part of Italy.
As regards the effects and conditions of the
measure, the Government observed that the applicant was not subject to any
restriction apart from the ban – albeit theoretical in their view – on his
entry into or transit through Switzerland. In particular, he was not under
surveillance by the Swiss authorities, had no specific obligations and could
have received as many visits as he wished. He was also able, at all times, to
meet his lawyers freely. The Government further pointed out that the border
between Campione d’Italia and Switzerlandwas not patrolled, so the ban on entry
into Switzerland could not have been perceived by him as a physical obstacle.
For those reasons the Government contended that
the impugned measure could not be regarded as a deprivation of liberty within
the meaning of Article 5 § 1.
(b) The applicant
The applicant argued that the present case
could not be compared to S.F. v. Switzerland (cited above), in which the
Commission had declared inadmissible the complaint of an applicant under
Article 5 that he had not been authorised to leave Campione d’Italia for
several years. Firstly, in the applicant’s case the inability to leave the area
was not the result of a criminal conviction and, secondly, he had been unable
to challenge the impugned restrictions in the context of a fair hearing, unlike
the applicant in S.F.
The applicant did not dispute the fact that no
physical obstacle prevented him from leaving Campione d’Italia, but he pointed
out that the border with Switzerland was nevertheless occasionally subject to
spot-checks and that, if it had been discovered in the context of such a check
that he was attempting to enter a territory from which he was banned, he would
have faced proceedings entailing heavy penalties.
The applicant stated that Campione d’Italia had
a surface area of 1.6 sq. km and that, therefore, the space in which
he could move freely was even smaller than that of the applicant in Guzzardi
(cited above), who was on an island of 2.5 sq. km.
Moreover, the applicant pointed out that even
the Federal Court itself had recognised that the restrictions amounted in
effect to house arrest. For all those reasons, he contended that Article 5 § 1
should be applicable in his case.
(c) The French Government
The French Government, intervening as a
thirdparty, were of the opinion that Article 5 of the Convention could not be applicable
to the situation of a person who was refused entry into or transit through a
given territory, and that the particular circumstances of the case, stemming
from the applicant’s residence in an Italian enclave within the Canton of
Ticino, could not change that assessment, unless the substance of that
provision were to be substantially distorted.
2. The Court’s assessment
The Court reiterates that Article 5 enshrines a
fundamental human right, namely the protection of the individual against
arbitrary interference by the State with his or her right to liberty. The text
of Article 5 makes it clear that the guarantees it contains apply to “everyone”.
Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds on which persons may be deprived of their liberty. No
deprivation of liberty will be compatible with Article 5 § 1 unless it falls
within one of those grounds or is provided for by a lawful derogation under
Article 15 of the Convention, which allows for a Contracting State “in time of
war or other public emergency threatening the life of the nation” to take
measures derogating from its obligations under Article 5 “to the extent
strictly required by the exigencies of the situation” (see, among other authorities, Al-Jedda, cited above,
§ 99; A. and Others v. the United Kingdom [GC], no. 3455/05,
§§ 162-163, ECHR 2009; andIreland v. the United Kingdom, cited
above, § 194).
Article 5 § 1 is not concerned with mere
restrictions on liberty of movement, which are governed by Article 2 of
Protocol No. 4, a protocol not ratified by Switzerland. In order to determine
whether someone has been “deprived of his liberty” within the meaning of
Article 5, the starting point must be his concrete situation and account must
be taken of a whole range of criteria such as the type, duration, effects and
manner of implementation of the measure in question. The difference between
deprivation and restriction of liberty is one of degree or intensity, and not
one of nature or substance (see Austin and Others v. the United Kingdom
[GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012;Stanev
v. Bulgaria[GC], no. 36760/06, §
115, 17January 2012;Medvedyev
and Othersv. France [GC],no. 3394/03, § 73, ECHR 2010;Guzzardi,
cited above, §§ 92-93;Storck v. Germany, no. 61603/00, § 71, ECHR 2005‑V;
andEngel and Others v. the Netherlands, 8 June 1976, § 59, Series A
no. 22).
The Court is further of the view that the
requirement to take account of the “type” and “manner of implementation” of the
measure in question (see Engel and Others,§
59, and Guzzardi,§ 92, both cited
above) enables it to have regard to the specific context and circumstances
surrounding types of restriction other than the paradigm of confinement in a
cell (see, for example, Engel and Others,
§ 59, and Amuur,§ 43, both cited
above). Indeed, the context in which the measure is taken is an important
factor, since situations commonly occur in modern society where the public may
be called on to endure restrictions on freedom of movement or liberty in the
interests of the common good (see, mutatis mutandis, Austin and
Others, cited above, § 59).
The Court observes that, in support of his
argument that Article 5 must apply in the present case, the applicant relied
particularly on the above-cited Guzzardi case.In that case, the
application had been lodged by an individual who, being suspected of belonging
to a “band of mafiosi”, had been forced to live on an island within in an
(unfenced) area of 2.5 sq. km, together with other residents in a similar
situation and supervisory staff. The Court found that the applicant had been
“deprived of his liberty” within the meaning of Article 5 and that he could
therefore rely on the guarantees under that provision (see also Giulia
Manzoni v. Italy, 1 July 1997, §§ 18-25, Reports 1997‑IV).
By contrast, in theS.F. v.
Switzerlandcase (cited above), where the applicant complained about not
being authorised to leave Campione d’Italia for several years,the Commissiondeclared
the complaint inadmissible, finding that Article 5 was not applicable in that
case. The Grand Chamber finds it appropriate in the present case to opt for the
latterapproach, for the following reasons.
In the applicant’s concrete situation, the
Court acknowledges that the restrictions were maintained for a considerable
length of time. However, it observes that the area in which the applicant was
not allowed to travel was the territory of a third country, Switzerland, and that, under international law, that country had the right to prevent the
entry of an alien (see paragraph 164 above). The restrictions in question did
not prevent the applicant from freely living and moving within the territory of
his permanent residence, where he had chosen, of his own free will, to live and
carry on his activities. The Court considers that, in these circumstances, his
case differs radically from the factual situation in Guzzardi (cited
above) and that the prohibition imposed upon the applicant does not raise an
issue under Article 5 of the Convention.
The Court further recognises that Campione d’Italia
represents a small area of territory. However, it observesthat the applicant
was not, strictly speaking, in a situation of detention, nor was he actually
under house arrest: he was merely prohibited from entering or transiting
through a given territory, and as a result of that measure he was unable to
leave the enclave.
In addition, the Court notes that the applicant
did not dispute before it the Swiss Government’s assertion that he had not been
subjected to any surveillance by the Swiss authorities and had not been obliged
to report regularly to the police (contrastGuzzardi, cited above, § 95).
Nor does it appear, moreover, that he was restrictedin his freedom to receive
visitors, whether his family, his doctors or his lawyers (ibid.).
Lastly, the Court would point out that the sanctions
regime permitted the applicant to seek exemptions from the entry or transit ban
and that such exemptions were indeed granted to him on two occasions but he did
not make use of them.
Having regard to all the circumstances of the
present case, and in accordance with its case-law, the Court, like the Federal
Court(see paragraph 48above), finds that the applicantwas not “deprived of his
liberty” within the meaning of Article 5 § 1 by the measure prohibiting him
from entering and transiting through Switzerland.
It follows
that the complaints under Article 5 are manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
V. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Relying essentially on the same arguments as
those examined by the Court under Articles 5 and 8, the applicant complained of
treatment in breach of Article 3. He further alleged that his inability to
leave the enclave of Campione d’Italia to go to a mosque had breached his
freedom to manifest his religion or belief as guaranteed by Article 9.
In view of all the material in its possession,
and even supposing that those complaints had been duly raised before the
domestic courts, the Court does not find any appearance of a violation of
Articles 3 and 9 of the Convention.
It follows that this part of the application
must be rejected as manifestly ill-foundedpursuant to Article 35 §§ 3 and 4 of
the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant did not submit any claim in
respect of pecuniary or non-pecuniary damage.
Accordingly, there is no call to award him any
sum on that account.
B. Costs and expenses
As regards costs and expenses, the applicant
sought the reimbursement of 75,000 pounds sterling (GBP)plus value-added tax,
for his lawyers’ fees in connection with the proceedings before the Court,
together with 688.22euros (EUR)for expenses incurred by his lawyer in travelling
to Campione d’Italia, for telephone calls and for office expenses.
The Government pointed out that the applicant
had chosen to be represented by a lawyer practising in Londonwho charged an
hourly rate that was much higher than the average rates in Switzerland, and that this choice had entailed considerable travel expenses. In their
submission, even if it were to be accepted that the present case was indeed as
complex as the applicant claimed, the number of hours invoiced wasexcessive.
Consequently, they submitted that in the event of the application being upheld,
an amount of no more than 10,000 Swiss francs (CHF) would be a fair award.
The Court reiterates that if it finds that
there has been a violation of the Convention, it may award the applicant the
costs and expenses incurred before the national courts for the prevention or
redress of that violation by them (see Neulinger and Shuruk,cited above,
§ 159). Moreover, such costs and expenses must have been actually and
necessarily incurred and must be reasonable as to quantum (ibid.).
The Court does not share the Government’s
opinion that the applicant should assume the consequences of his choice to be
represented by a British lawyer. It would point out in this connection that,
under Rule 36 § 4 (a) of the Rules of Court, the applicant’s
representative must be “an advocate authorised to practise in any of the
Contracting Parties and resident in the territory of one of them ...”. However,
it notes that only the complaints submitted under Articles 8 and 13 resulted,
in the present case, in a finding of a violation of the Convention. The
remainder of the application is inadmissible. The sum claimed by the applicant
is therefore excessive.
Consequently, having regard to the material in
its possession and the criteria set out above, the Court finds it reasonable to
award the applicant the sum of EUR 30,000 for the costs and expenses he has
incurred in the proceedings before it.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s preliminary
objections that the application is incompatible ratione personae with
the Convention and that the applicant lacks victim status;
2. Joins to the
merits the Government’s preliminary objection that the application
is incompatible ratione materiae with the Convention;
3. Dismisses the Government’s preliminary
objection of non-exhaustion of domestic remedies in respect of the complaints
under Articles 5 and 8, and joins this objection to the merits in
respect of the Article 13 complaint;
4. Declaresthe complaints concerning Articles
8 and 13 admissible and the remainder of the application inadmissible;
5. Dismisses the Government’s preliminary
objection that the application is incompatible ratione materiae with the
Convention and holdsthat there has been a violation of Article 8 of the
Convention;
6. Dismisses the Government’s preliminary
objection of non-exhaustion of domestic remediesin respect of the Article 13
complaint and holdsthat there has been a violation of Article 13 of the
Convention in conjunction with Article 8;
7. Holds
(a) that the respondent
State is to pay the applicant, within three months, the sum of EUR 30,000
(thirty thousand euros), plus any tax that may be chargeable to the applicant
on that sum, in respect of costs and expenses, to be converted into the
currency of the respondent State at the rate applicable at the date of
settlement;
(b) that from the expiry
of the above-mentioned three months until settlement simple interest shall be
payable on the above amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English and French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 12 September 2012.
Michael O’Boyle Nicolas
Bratza Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) joint concurring opinion of Judges Bratza,
Nicolaou and Yudkivska;
(b) concurring opinion of Judge Rozakis joined by
Judges Spielmann and Berro-Lefèvre;
(c) concurring opinion of Judge Malinverni.
N.B.
M.O’B.
JOINT CONCURRING OPINION OF JUDGES BRATZA, NICOLAOU AND
YUDKIVSKA
1. While we have joined in the finding a violation of Article
8 of the Convention in the present case, we cannot fully share the reasoning in
the judgment leading to such a finding. In particular, we entertain
considerable doubts about the conclusion that Switzerland “enjoyed some latitude
which was admittedly limited but nevertheless real in implementing the relevant
binding resolutions of the UN Security Council” (paragraph 180). This
conclusion is not in our view borne out by the terms of the resolutions
themselves or by the provisions of the United Nations Charter under which they
were issued. Moreover, despite the attention devoted to the point in the
judgment, it does not ultimately appear to have played a central role in the
Court’s conclusion that Article 8 was violated, a conclusion which is founded
less on Switzerland’s failure to exploit any latitude afforded to it in the
relevant resolutions than on its failure to take any, or any sufficient,
measures to safeguard the applicant’s Convention rights within the constraints
set by those resolutions.
2. As is correctly pointed out in the judgment, Resolution
1390 (2002) expressly required States to prevent individuals whose names
appeared in the list of the sanctions Committee of the United Nations from
entering or transiting through their territory. In this respect, the case
differs from that examined by the Court in Al-Jedda v. the United Kingdom([GC],
no. 27021/08, ECHR 2011), where the Court held that the wording of the
resolution in issue did not specifically mention internment without trial and
that, in the absence of clear and explicit language to the contrary, there was
a presumption that the Security Council did not intend to impose any obligation
on member States to breach fundamental principles of human rights. In the present
case, clear and specific language was used in the relevant Resolution, as well
as in paragraph 7 of Resolution 1267 (1999) in which the Security Council was
even more explicit, setting aside any other international obligations that
might be incompatible with the Resolution in question.
3. True it is, as is pointed out in the judgment, that at the
time when it adopted the Taliban Ordinance of 2 October 2000 and when it added
Article 4 (a) of the Ordinance to give effect to Resolution 1390 (2002),
Switzerland was not a member of the United Nations but was already bound by the
European Convention. However, this is we consider of little significance. As is
noted in the judgment, the relevant resolutions were addressed to “all States”
and not only to the member States of the United Nations. It is also clear that
the requirement to prevent the entry into or transit through Swiss territory in
any event applied to Switzerland from the date on which it became a member of
the United Nations in September 2002. Not only was Switzerland obliged to add
the applicant to the list of proscribed persons at the latest from that date
but we note that, in October 2003, following criticism by the Monitoring Group
established under Resolution 1363 (2001), Switzerland was obliged to revoke the
applicant’s special border-crossing permit which had enabled him to travel
relatively freely between Switzerland and Italy (see paragraph 25 of the
judgment).
4. The finding in the judgment that a latitude was left to
States is essentially based on an argument that the United Nations Charter does
not impose a particular model for the implementation of resolutions adopted by
the Security Council under Chapter VII, the Charter leaving in principle to the
member States of the United Nations a free choice among the various possible
models for transposing those resolutions into their domestic legal order
(paragraph 176).
5. We readily accept that different means may be open to
States by which to give effect to obligations imposed on them by the relevant
Security Council resolutions. But the obligation imposed on States under
Resolution 1390 (2002) was a binding one which, subject to the exceptions
or exemptions expressly contained in the Resolution itself, allowed no flexibility
or discretion to the States as to whether to give full effect to the sanctions
imposed but required them to prohibit the entry into or transit through their
territories of all persons included in the Sanctions Committee list. The only
relevant exception was that contained in paragraph 2 (b) of the Resolution
which disapplied the provisions where entry or transit was necessary for the
fulfilment of a judicial process.
6. We similarly find no support for the view in paragraph 178
of the judgment that latitude was afforded to States by paragraph 8 of the
Resolution itself, in which States were urged to take immediate steps to
enforce and strengthen “through legislative and enactments or administrative
measures, where appropriate, the measures imposed under domestic law 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 2 of this resolution”. Certainly, as noted in the
judgment, the words “where appropriate” contemplated that the authorities would
have a choice between legislative and administrative measures and were thereby
granted a certain flexibility in the means by which the measures were enforced
and strengthened. But those words certainly do not suggest that any latitude
was granted so far as concerned the obligations on States to give full effect
to the terms of paragraph 2 of the Resolution.
7. We are also unpersuaded by the reliance in paragraph 179 of
the judgment on the motion of 1 March 2010 by which the Foreign Policy
Commission of the Swiss National Council requested the Federal Council to
inform the UN Security Council that, from the end of 2010, it would no longer
in certain cases apply the sanctions prescribed against individuals under the
counter-terrorism resolutions. Doubtless, the Swiss Parliament by adopting that
motion may have been “expressing its intention to allow a certain discretion in
the application of the counter-terrorism resolutions”. However, the fact that several
months after the applicant’s name had been deleted from the list the Parliament
unilaterally asserted a discretion to refuse to comply unconditionally with the
terms of the Resolution is one thing; whether any such discretion or latitude
was afforded to Switzerland under the Resolution itself is quite another. In
our view, it clearly was not.
8. Like the Swiss Federal Court, we accordingly consider that
States enjoyed no latitude in their obligation to implement the sanctions
imposed by the relevant Security Council Regulations and that Switzerland was
debarred from deciding of its own motion whether or not sanctions should
continue to be imposed on a person or organisation appearing on the Sanctions
Committee list.
9. However, this does not resolve the issue under Article 8 of
the Convention. Although constrained to act strictly in accordance with the
provisions of Resolution 1390 (2002) notwithstanding any rights or obligations
conferred under the Convention, States were not absolved from the obligations
to take such steps as were open to them to mitigate the effects of the measures
insofar as they had an impact on the private or family life of the individuals
concerned.
10. The situation of the present applicant was, if not unique,
highly exceptional and the impact of the Taliban Ordinance on his private and
family life was indisputably serious. The impugned measures constituted, as the
Federal Court expressly found, a significant restriction on the applicant’s
freedom on account of the location of Campione d’Italia, a small enclave
surrounded by the Swiss Canton of Ticino where he had established his home
since 1970. He was prevented, at least from October 2003, not only from
entering Switzerland but from leaving Campione d’Italia at all, even to travel
to other parts of Italy, the country of which he was a national. The
prohibition made it exceptionally difficult for him to maintain contact with
others, including members of his own family, living outside the enclave. In
these circumstances, the Swiss authorities were, as the Federal Court put it,
“obliged to exhaust all the relaxations of the sanctions regime available under
the UN Security Council resolutions”. They were also, in our view, required to
take all such other steps as were reasonably open to them to bring about a
change in the regime so as to reduce so far as possible its serious impact on
the private and family life of the applicant.
11. Switzerland was not able of its own motion and consistently
with the relevant Resolutions, to delete the applicant’s name from Annex 2 to
the Taliban Ordinance, the Sanctions Committee alone being responsible for the
deletion of persons or entities. Nor, since the applicant’s name was not added
to the list on the initiative of Switzerland and since it was neither the State
of the applicant’s citizenship nor that of his residence, did Switzerland have
any formal competence under the Resolutions to take action to have the
applicant’s name deleted by the Sanctions Committee. Nevertheless, in common
with the other members of the Grand Chamber, we consider that the Swiss
authorities did not sufficiently take into account the specific circumstances
of the applicant’s case, including the considerable duration of the measures
imposed, and the applicant’s nationality, age and health. Nor, in our view, did
those authorities take all reasonable steps open to them to seek to mitigate
the effect of the sanctions regime by the grant of requests for exemption for
medical reasons or in connection with judicial proceedings, or to bring about a
change in the sanctions regime against the applicant so as to secure so far as
possible his Convention rights.
12. Of the measures open to the authorities which are referred
to in the judgment, we attach special importance to the failure of the
authorities to inform the Sanctions Committee until 2 September 2009 of the
conclusions of the investigation against the applicant, which had been
discontinued well over four years before, on 31 May 2005. The fact that the
investigation against the applicant had been discontinued was of obvious
importance to the prospect of the removal of the sanctions against him. In this
regard, we note that the applicant’s name was in fact deleted from the list on
23 September 2009, shortly after Switzerland sent to the Sanctions
Committee a copy of the letter from the Federal Prosecutor’s Office confirming
that the judicial police investigation against the applicant had not produced
any indications or evidence to show that he had ties with persons or
organisations associated with Osama bin Laden, al-Qaeda or the Taliban. The
failure to communicate this information was the subject of specific criticism
by the Federal Court which, while noting that by the date of its judgment in
November 2007 the applicant was able to apply himself to initiate the delisting
procedure, emphasised that he continued to rely on the support of Switzerland,
since this was the only country to have conducted a comprehensive preliminary
investigation into the applicant’s activities. We fully share the view of the
Federal Court that, while Switzerland could not itself proceed with deletion,
it could at the very least have transmitted the results of the investigation to
the Sanctions Committee and have actively supported the delisting of the
applicant. With the benefit of the results of its own investigation, it could
also have encouraged Italy, as the State of nationality and residence of the
applicant, to take steps earlier than July 2008 to request the deletion of the
applicant’s name. Such measures were not bound to have met with success. There
remained, however, a real prospect that they would have resulted in the
deletion of the applicant’s name and the restoration of his Article 8 rights at
a much earlier stage than eventually occurred.
CONCURRING OPINION OF JUDGE ROZAKIS
JOINED BY JUDGES SPIELMANN AND BERRO-LEFEVRE
I fully share the decisions of the Court under all heads, and
have voted accordingly. There is nevertheless a point on which I wish to depart
from the reasoning of my colleagues. It is a matter which does not affect the
overall approach or the way that I have voted. And it consists of the
following.
The applicant complained that the measure by which he was
prohibited from entering or passing through Switzerland had breached his right
to respect for his private life, including his professional life and his family
life (see paragraph 149 of the judgment). In support of his contention, he
invoked a number of instances showing that his private and family life had been
affected. Among them he claimed that the addition of his name to the list annexed
to the Taliban Ordinance had impugned his honour and reputation, and he thus
relied for all these complaints on Article 8 of the Convention.
The Court, while it examined in detail all the particular
aspects of his complaints, when dealing both with the admissibility and with
the merits of the case, preferred not to raise at all the issue of his honour
and reputation. In its concluding paragraph (paragraph 199) it simply refers to
the honour and reputation complaint by “side-stepping” it, using the well-known
formula that there is no need to examine this complaint separately.
Here, then, lies my difference of approach. The applicant’s
complaint concerning his honour and reputation is not a distinct complaint
which is independent from all the other aspects of his allegation of a
violation of Article 8 of the Convention. It is one of the constitutive parts
of his main complaint that his private and family life were affected by the
Swiss authorities’ conduct. It is well known – and undoubtedly the applicant
was relying on this – that honour and reputation have been considered by the
Court as an element of private life worthyof particular protection under
Article 8. By discarding this particular aspect of an otherwise homogeneous and
comprehensive complaint, the Court has given the wrong impression that honour
and reputation should be examined separately – if at all – and that they do not
necessarily belong to the hard core of the constitutive parts of private life.
For these reasons I would like to express my disagreement with
the way that paragraph 199 is drafted and the failure by the Court to take on
board the issue of honour and reputation. After all, the reasoning required to
encompass that particular aspect as well would not have differed radically from
that adopted by the Court in its overall analysis of Article 8, leading to the
finding of a violation.
CONCURRING OPINION OF JUDGE MALINVERNI
(Translation)
1. I share the Court’s opinion that in the present
case there has been a violation of Article 8 of the Convention. I am not,
however, convinced by the reasoning through which it reached that conclusion.
I
2. The Court’s entire line of argument is based on
the statement that, in implementing the Security Council resolutions, the
respondent State “enjoyed some latitude, which was admittedly limited but
nevertheless real” (paragraph 180). To support that statement it gives the
following reasons (see paragraphs 175-179).
3. The Court begins by noting that therespondent
State’s latitude derives from the very wording of those resolutions. Paragraph
2(b) of Resolution 1390 (2002) thus provides that the prohibition does not
apply “where entry or transit is necessary for the fulfilment of a judicial
process...”. The Court infers from this that the adjective “necessary” allows
the authorities a certain latitude andis“to be construed on a case-by-case
basis” (paragraph 177). Whilst that is certainly true, the Court appears
to overlook the fact that the wording here concerns an exception to the general
rule set out in that same provision, far more than being an acknowledgment of
any room for manoeuvre that the domestic authorities may have had in applying
the latter. Moreover, apart from the case of judicial proceedings, this
provision grants such latitude to the Sanctions Committee, but not to the
States.
4. The Court further relies on the expression
“where appropriate” in paragraph 8 of Resolution 1390 (2002) to assert that the
wording also had the effect of “affording the national authorities a certain
flexibility in the mode of implementation of the resolution” (paragraph 178). In
my view, however, it misconstrues that provision of Resolution 1390. The expression
“where appropriate” in fact relates to the words immediately before it, namely
“legislative enactments or administrative measures”. This simply means that,
depending on the legal order of the various States, and in the particular
circumstances, the State will either have to make legislative enactments or to
take administrative measures. No conclusion can thus be drawn from this about
the latitude afforded to States in the implementation of the resolution.
5. The Court’s last argument concerns the motion by
which the Foreign Policy Commission of the Swiss National Council requested the
Federal Council to inform the UN Security Council that it would no longer
unconditionally be applying the sanctions prescribed against individuals under
the counter-terrorism resolutions. In adopting that motion, it is said, the
Federal Parliament was expressing “its intention to allow a certain discretion
in the application of the Security Council’s counter-terrorism resolutions”
(paragraph 179). Whilst that is certainly true, no inferences can be drawn from
this about the latitude afforded to Switzerland in the present case, as the
motion was adopted on 1 March 2010 (see paragraph 63), that is to say after the
applicant’s name had been deleted from the list, on 23 September 2009 (see
paragraph 62).
6. On the strength of itsfinding that the
respondent State enjoyed a certain latitude in the implementation of the UN
resolutions, the Court then examined whether, in the present case, the
interference with the rights protected by Article 8 respected the
proportionality principle. It answered that question in the negative, finding
in particular that“the Swiss authorities did not sufficiently take into account
the realities of the case, especially the unique geographical situation of
Campione d’Italia, the considerable duration of the measures imposed or the
applicant’s nationality, age and health”. Accordingly, in the Court’s view, the
interference with the applicant’s right to respect for his private and family
life“was not necessary in a democratic society”.
7. Some of the arguments used by the Court to reach
this conclusion do not, however, appear convincing. Thus, can Switzerland
seriously be criticised – bearing in mind that the applicant was not a Swiss
national – for failing to provide him with assistance in seeking from the Sanctions
Committee a broader exemption from the sanctions affecting him because of his
specific situation, when he had not even requested such assistance (paragraph
193)? Or for failing to encourage Italy to take steps to obtain the deletion of
the applicant’s name from the Sanctions Committee’s list,when it was for the
State of citizenship or residence of the person concerned to initiate the
delisting procedure (paragraph 194)?
II
8. The opinion that Switzerland had not been
afforded any room for manoeuvre was, moreover, also expressed by the Federal
Court, which found as follows in this connection (see paragraph 50):
“8.1 ... The sanctions (freezing of assets, entry and transit
ban, arms embargo) are described in detail and afford member States no margin
of appreciation in their implementation... The member States 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 the Sanctions Committee’s
list.”
Further on, the Federal Courtexamined whether the travel ban
under Article 4(a) of the Federal Taliban Ordinance went beyond the sanctions introduced
by the Security Council resolutions and, if so, whether the Swiss authorities
had a certain latitude in this area. It answered in the negative (see paragraph
52):
“10.2 Article 4a § 2 of the ... Ordinance is
formulated as an ‘enabling’ provision and gives the impression
that the Federal Office of Migration has a certain margin of appreciation ...The
Federal Office of Migration thus has no margin of appreciation. Rather, it must
examine whether the conditions for the granting of an exemption
are met.”
9. The French and United Kingdom Governments,
intervening as third parties, shared this opinion and stated that the Swiss
authorities hadnolatitude in the implementation of the Security Council
resolutions (see paragraph 175). In the submission of the UK Government, in
particular, the Security Council had used “clear
and explicit language” to impose specific measureson States (see
paragraph 111).
10. In conclusion, taking into account the very
clear and mandatory terms of the Security Council resolutions in question,
obliging States to apply them strictly and in full, without consideration of
the rights and obligations arising from any other international conventions that
they had ratified, and since the sanctions were described in a detailed manner,
with the names of the persons concerned appearing on exhaustive lists, it is
difficult, in my opinion, to sustain the argument that Switzerland had any room
for manoeuvre in the present case. The situation here was undeniably one of mandatory
powerand not one of discretionary power. I therefore believe that
the Court erred in its approach. In my view, it should have followed that of
the Federal Court, but to arrive at the opposite conclusion.
III
11. The Federal Court, as it could not infer from
the wording of the UN resolutions which it had to apply that there was any room
for manoeuvre enabling it to interpret them consistently with the applicant’s
fundamental rights, had no choice but to settle the question before it on the
basis of the hierarchy of norms principle. It gave priority to Switzerland’s
obligations under the resolutions in question over thoseimposed on it by the
Convention and by the International Covenant on Civil and Political Rights. Was
that decision correct or can the Swiss supreme court be criticised for blindly
enforcing, without calling into question, the obligations imposed on
Switzerland by the Security Council resolutions?
12. The Court did not address this question. In its
view, the conclusion that it had reached dispensed it from“determining the
question, raised by the respondent and intervening Governments, of the
hierarchy between the obligations of the States Parties to the Convention under
that instrument, on the one hand, and those arising from the United Nations
Charter, on the other. ....[T]he important point is that the respondent
Government have failed to show that they attempted, as far as possible, to
harmonise the obligations that they regarded as divergent” (paragraph 197). I
have great difficulty sharing this view, for the following reasons.
13. The Security Council was well aware of the
conflict that would inevitably arise between its own resolutions and the
obligations that certain States had assumed in ratifying international human
rights treaties. For each of the resolutions that it adopted, it thus expressly
stipulated that States were obliged to comply with them“notwithstanding the
existence of any rights or obligations conferred or imposed by any
international agreement ... prior to the date of coming into force of the
measures imposed” (Resolution 1267 (1999) paragraph 7; Resolution 1333(2000), paragraph
17; quoted in paragraphs 70-71of the judgment).
14. Was the Security Council entitled to act in
that manner? Of course, under Article 25 of the United Nations Charter, the memberStates are required to accept and apply its decisions. Moreover, Article 103 of the Charterstipulates
that in the event of any conflict between the obligations of United Nations
members under the Charter and their obligations under any other international
agreement, the Charter obligations will prevail. And according to the case-law
of the International Court of Justice, that primacy is not limited to the
provisions of the Charter itself but extends to all obligations arising from
binding resolutions of the Security Council.
15. But do those two Charter provisions actually
give the Security Councilcarte blanche? That is far from certain. Like any
other organ of the United Nations, the Security Council is itself also bound by
the provisions of the Charter. And Article 25 in finethereof stipulates
that members of the world organisation are required to carry out the decisions
of the Security Council “in accordance with the present Charter”. In Article 24
§ 2 the Charter also provides that in discharging its duties “the Security
Council shall act in accordance with the Purposes and Principles of the United
Nations”.Article 1 § 3 of the Charter reveals that those purposes and
principles precisely include “respect for human rights and for fundamental
freedoms”. One does not need to be a genius to conclude from this that the Security
Council itself must also respect human rights, even when acting in its peace-keeping
role.This view indeed seems to have been confirmed by decisions recently taken
by certain international bodies.
16. In its Kadi and Al Barakaat judgment of
3 September 2008,
the Court of Justice of the European Communities (“CJEC”)readily found that it
had jurisdiction to examine the lawfulness of Regulation (EC) No 881/2002,
which implemented the Security Council’s al-Qaeda and Taliban resolutions. It
went on to find that the applicants’ rights, in particular their defence rights,
right to effective judicial review and their right to property, had been
infringed:
“It follows from the foregoing that
the Community judicature must, in accordance with the powers conferred on it by
the EC Treaty, 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, are designed
to give effect to the resolutions adopted by the Security Council under Chapter
VII of the Charter of the United Nations.” (§ 326)
17. The CJEC thus set aside the two judgments under
appeal, finding that the Court of First Instance had erred in law when it held
that “it followed from the principles governing the relationship between the
international legal order under the United Nations and the Community legal
order that the contested regulation, since it [was] designed to give effect to
a resolution adopted by the Security Council under Chapter VII of the Charter
of the United Nations affording no latitude in that respect, must enjoy
immunity from jurisdiction so far as concern[ed] its internal lawfulness ...” (§
327).
18. That judgment of the LuxembourgCourt may be
described as historic, as it made the point that respect for human rights
formed the constitutional foundation of the European Union, with which it was
required to ensure compliance, including when examining acts implementingSecurity
Council resolutions.
19. The Human Rights Committee, in its findings of
22 October 2008 in Sayadi and Vinckv. Belgium(see paragraph 88 of the
judgment), also found that it was competent to rule on the communication addressed
to it, “regardless of the source of the obligations implemented by the State
party” (point 7.2), that is to say even if that source were to be found in a Security
Council resolution.It therefore examined the compatibility with the Covenant of
the national measures adopted to implement the relevantSecurity Council
resolution and found that there had been a violation of some of the Covenant’s
provisions.
20. This raises a question: should the Court, as
guarantor of respect for human rights inEurope, not be more audacious than the European
Court of Justice or the Human Rights Committee when it comes to addressing and
settling the sensitive issue of conflict of norms that underlies the present
case? After all, is the Court not the“ultimate bulwark against the violation of
fundamental rights”?.
I am totally aware of the fact that the Security Council resolutions as such
fall outside the Court’s direct supervision, the United Nations not being a
party to the Convention. That is not the case, however, for acts taken by
States pursuant to those resolutions. Such acts are capable of engaging the
responsibility of States under the Convention. Moreover, the fundamental
principles in matters of human rights are nowadays not only enshrined in
specific international instruments, but are also part of customary law, which
is binding on all subjects of international law, including international
organisations.
IV
21. Article 103 of the Charter played a decisive
role in the Federal Court’s reasoning.It was on the basis of that provision
that it gave priority to the Security Council resolutions over Switzerland’s
obligations under the Convention and the International Covenant on Civil and
Political Rights. It may be questioned, however, whether such an interpretation
of Article 103 is not open to criticism from the standpoint of the balance that
States should strikebetween the requirements of collective security and respect
for fundamental rights, since it means that rights will be sacrificed for the
sake of security.
In itsKadi judgment the CJECcertainly implied that Security Council
resolutionsdid not enjoy absolute priority in the hierarchy of Community norms,
especially in relation to fundamental rights (see Kadi, § 293). In
other words, the Kadi judgment is unquestionably the result of a balance
between the requirement of the fight against terrorism on the one hand and
respect for human rights on the other.
22. Article 103 of the Charter provides for the
pre-eminence of that instrument over any other international agreement. As I
have already noted, according to the International Court of Justice this
primacy is not confined to the Charter provisions alonebut extends to all
binding provisions of Security Council resolutions. Nevertheless, according to
the very wording of Article 103 of the Charter, this provision applies
exclusively to “the obligations ... under the present Charter”. Would it not
then be appropriate to draw a distinction between the Charter itself, as the primary
legislation of the United Nations, and the Security Council resolutions, which,
although binding (Article 25), may be regarded more as secondary orsubordinate
UN legislation? Their superiority over “any other international agreement”
could then be seen in relative terms, in the light ofArticle 103 of the
Charter, particularly where the agreement in question is an international human
rights treaty.
23. Such an approach would be all the more
justified by the consideration that, as the Parliamentary Assembly resolution
of 23 January 2008
rightly stated, despite some recent improvements, the basic substantive and
procedural standards applied by the Security Council “in no way fulfil the
minimum standards ... and violate the fundamental principles of human rights
and the rule of law”. The system in place in the United Nations at the material
time was thus far from offering anequivalentprotection to that
guaranteed by the Convention, with the result that it does not seem possible to
rely here on a presumption of Convention compliance on the part of the Security
Council. The Bosphoruscase-law is not yet applicable to the law of the United
Nations.
24. This is all the more true as the situation in
the present case concerned not general sanctionsbut targeted sanctions,
which as such had a direct impact on the applicant’s fundamental rights, in
relation both to the manner of his inclusion on the Sanctions Committee’s list
and to the lack of remedies.
As one commentator has rightly stated“for as long as the United Nations has not
introduced a human rights protection mechanism ...comparable orequivalent to
that introduced in the member Statesand at European level, the domestic and
European courts remain competent to verify that acts implementing Security
Council decisionsrespect fundamental rights”.
Accordingly, any insufficient, or even deficient, protection of those rights in
the context of the United Nations system, where it has not been compensated for
bya review of such respect at domestic level, should lead the Court to find a
violation of the Convention.
25. It cannot be claimed nowadays that thehuman
rights obligations of States vanish in the event that, instead of acting
individually, they decide to cooperate by entrusting certain powers to
international organisations that they themselves have set up. In itsWaite and
Kennedy v. Germanyjudgment of 18 February 1999 the Court indeed asserted
that“where States establish international organisations
in order to pursue or strengthen their cooperation in certain fields of
activities, and where they attribute to these organisations certain competences
and accord them immunities, there may be implications as to the protection of
fundamental rights”. Also that it “would be
incompatible with the purpose and object of the Convention, however, if the
Contracting States were thereby absolved from their responsibility under the
Convention in relation to the field of activity covered by such attribution”.
26. International organisations themselves are thus
also bound by international human rights norms, since respect for such
rights“far from hindering the fight against terrorism, constitutes a weapon
against extremist ideologies that prosper by negating them”.
V
27. One last point: in paragraph 199 of its
judgment the Court states that “[h]aving regard to that conclusion [the finding
of a violation of Article 8 on account of the restriction of the applicant’s
freedom of movement], and notwithstanding that the applicant’s allegation that
the addition of his name to the list annexed to the Taliban Ordinance also
impugned his honour and reputation constitutes a separate complaint, ... it
does not need to examine that complaint separately”.
28. The merits of that conclusion are open to
question. The applicant certainly raised two totally separate complaints before
the Court (see paragraphs 156 and 157), even though they both fell within the
scope of Article 8 in terms of the protection of private life. However, whilst
the first complaint concerned physical liberty to move around freely, the
second concerned damage to the applicant’s moral integrity, resulting from the
very fact that his name appeared on the Sanctions Committee’s list. In
addition, whilst the first complaint was intrinsically linked to the highly
specific geographical situation of the Campione d’Italia enclave, with its very
confined territory, the second was much more general in effect. That aspect of
his application was certainly, in the applicant’s view, equally as important –
ifnot more so – as the restrictions that had been imposed on his freedom of
movement.
29. For all these reasons, the applicant’s second
complaint, in my view, warranted a separate examination; especially as I fail
to see how the Court could have, in respect of this complaint, used the same
reasoning as that adopted for the first complaint, which was based solely on the
latitude afforded to the respondent State in implementing the Security Council
resolutions, or could then have found a violation of Article 8 for failure to
respect the proportionality principle. For the purposes of examining whether a
person’s name should be included on the Sanctions Committee’s list, I certainly
find it difficult to imagine a balancing of the interests at stake by the
respondent State.
