Information Note on the Court’s case-law 197

June 2016

Al-Dulimi and Montana Management Inc. v. Switzerland [GC] - 5809/08

Judgment 21.6.2016 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Sanctions imposed on applicants on basis of UN Security Council resolution without judicial scrutiny: violation

Facts – The first applicant is an Iraqi national who lives in Jordan and is the managing director of a company incorporated under the laws of Panama with its registered office in Panama (the second applicant). After the invasion of Kuwait by Iraq in August 1990, the United Nations Se curity Council adopted a number of resolutions calling upon member and non-member States to impose an embargo on Iraq, on Kuwaiti resources confiscated by Iraq and on air transport. In August 1990 the Swiss Federal Council adopted an Ordinance introducing economic measures in respect of Iraq. According to the applicants, their assets in Switzerland had been frozen since August 1990. In September 2002 Switzerland became a member of the United Nations. In May 2003, following the fall of Saddam Hussein’s Gover nment, the UN Security Council adopted Resolution 1483, imposing on States an obligation to freeze assets and economic resources located outside Iraq which belonged to the former Iraqi regime, to senior officials of that regime and to entities under their control or management. In November 2003 a Sanctions Committee was given the task of listing the individuals and entities targeted by the measures. The applicants’ names were added to the relevant list in May 2004.

In May 2004 the applicants’ names were als o added to the list of individuals and organisations appended to the Swiss Iraq Ordinance as amended. That same month the Federal Council adopted another Ordinance, valid until 30 June 2010, providing for the confiscation of the frozen Iraqi assets and eco nomic resources and their transfer to the Development Fund for Iraq.

In December 2006 the UN Security Council adopted a resolution providing for a delisting procedure.

The applicants asked the competent Swiss authority, in a letter of August 2004, to suspend the confiscation procedure in respect of their assets. But as their application to the UN Sanctions Committee for delisting remained without effect, they then reques ted in a letter of September 2005 that the confiscation procedure be continued in Switzerland. In spite of their objections, the Federal Department of Economic Affairs ordered the confiscation of their assets and stated that the sums would be transferred t o the bank account of the Development Fund for Iraq within ninety days from the entry into force of the decision. In support of its decision, the Department noted that the applicants’ names appeared on the lists of individuals and entities established by t he Sanctions Committee, that Switzerland was obliged to implement Security Council resolutions, and that names could be removed from the annex to the Iraq Ordinance only if the relevant decision had been taken by the UN Sanctions Committee. The applicants appealed to the Federal Court to have the decision set aside. In three almost identical judgments, their appeals were dismissed. The applicants lodged a fresh delisting application, but it was rejected on 6 January 2009.

In a judgment of 26 November 2013 ( see Information Note 168 ), a Chamber of the Court held, by four votes to three, that there had been a violation of Article 6 § 1. It took the view that, for as long as there was no effective and independent judicial review at UN level of the legitimacy of adding individuals and e ntities to the relevant lists, it was essential that such individuals and entities should be authorised to request the review by the national courts of any measure adopted pursuant to the sanctions regime. Such review had not been available to the applican ts. It followed that the very essence of their right of access to a court had been impaired.

On 14 April 2014 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 6 § 1: As the Swiss Federal Court, in its January 2008 judgm ents, had refused to examine the applicants’ allegations that the decision to confiscate their assets was not compatible with the fundamental safeguards of a fair trial, their right of access to a court under Article 6 § 1 of the Convention had thus been r estricted.

That refusal, stemming from a concern to ensure the effective domestic implementation of the obligations under UN Security Council Resolution 1483 (2003), which was the basis of the confiscation decision, pursued the legitimate aim of maintainin g international peace and security.

In spite of their importance, the Court did not consider the guarantees of a fair trial, and in particular the right of access to a court under Article 6 § 1, to be jus cogens norms in the current state of international law.

Where a resolution such as Resolution 1483 (2003) did not contain any clear or explicit wording excluding the possibility of judicial scrutiny of the measures taken for its enforcement, it always had to be construed as authorising the courts of the re spondent State to apply a sufficient degree of oversight such as to avoid any arbitrariness. The Court thus took account of the nature and aim of the measures required by Resolution 1483 in verifying whether a fair balance had been struck between the need to ensure respect for human rights and the imperatives of the protection of international peace and security.

In the event of a dispute over a decision to add a person to the list or to refuse delisting, it was necessary for the domestic courts to be able to obtain sufficiently precise information in order to exercise the requisite scrutiny in respect of any substantiated and tenable allegation made by listed persons to the effect that their listing was arbitrary. Any inability to access such information wa s therefore capable of constituting a strong indication that the impugned measure was arbitrary, especially if the lack of access was prolonged, thus continuing to hinder judicial scrutiny. Accordingly, any State Party whose authorities gave legal effect t o the addition of a person – whether an individual or a legal entity – to a sanctions list, without first ensuring – or being able to ensure – that the listing was not arbitrary would engage its responsibility under Article 6 of the Convention.

The Court w as of the view that paragraph 23 of Resolution 1483 (2003) could not be understood as precluding any judicial scrutiny of the measures taken to implement it.

In those circumstances, and to the extent that Article 6 § 1 of the Convention was at stake, Switz erland was not faced in the present case with a real conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter. Consequently, the respondent State could not validly confine itself to relying on the binding nature of Secu rity Council resolutions, but had to persuade the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the individual situation of the applicants, at least guaranteeing them adequate protectio n against arbitrariness.

The Federal Court had been unable to rule on the merits or appropriateness of the measures entailed by the listing of the applicants. As regards the substance of the sanctions – the freezing of the assets and property of senior off icials of the former Iraqi regime, as imposed by paragraph 23 of Resolution 1483 (2003) – the choice had fallen within the eminent role of the UN Security Council as the ultimate political decision-maker in this field. However, before taking the above-ment ioned measures, the Swiss authorities had had a duty to ensure that the listing was not arbitrary. In its judgments of January 2008 the Federal Court had merely confined itself to verifying that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets concerned belonged to them, but that was insufficient to ensure that the applicants had not been listed arbitrarily.

The applicants should, on the contrary, have been afforded at least a genuine opportunity t o submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the impugned lists had been arbitrary. Consequently, the very essence of the applicants’ right of access to a court has been impaired.

Moreover , the applicants had been, and continued to be, subjected to major restrictions. The confiscation of their assets had been ordered in November 2006. They had thus already been deprived of access to their assets for a long period of time, even though the co nfiscation decision had not yet been enforced. The fact that it had remained totally impossible for them to challenge the confiscation measure for many years was hardly conceivable in a democratic society.

The UN sanctions system, and in particular the pro cedure for the listing of individuals and legal entities and the manner in which delisting requests were handled, had received very serious, reiterated and consistent criticisms from Special Rapporteurs of the UN, also shared by sources outside that organi sation. The respondent Government themselves had admitted that the system applicable in the present case, enabling applicants to apply to a “focal point” for the deletion of their names from the Security Council lists, did not afford satisfactory protectio n. Access to these procedures could not therefore replace appropriate judicial scrutiny at the level of the respondent State or even partly compensate for the lack of such scrutiny.

The Swiss authorities had taken certain practical measures with a view to improving the applicants’ situation, thus showing that Resolution 1483 (2003) could be applied with a degree of flexibility. However, all those measures had been insufficient in the light of the above-mentioned obligations on Switzerland under Article 6 § 1 of the Convention.

Conclusion : violation (fifteen votes to two).

Article 41: no award.

(See Al-Jedda v. the United Kingdom [GC], 27021/08, 7 July 2011, Information Note 143 , and Bosphorus Hava Yolla rı Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45036/98, 30 June 2005, Information Note 76 ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the C ourt.

Click here for the Case-Law Information Notes