European Court of Human Rights

Information Note on the Court’s case-law No. 117

March 2009

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

Article 6

Civil proceedings

Article 6-1

Access to court

Sanctions imposed on applicants on basis of UN Security Council resolutions: communicated

 

The first applicant is an Iraqi national who lives in Jordan and manages a company incorporated under Panamanian law and based in Panama (the second applicant). After the invasion of Kuwait by Iraq in August 1990, the UN Security Council adopted several resolutions inviting member and non-member States to freeze all funds and other financial assets and economic resources that came from Iraq. In November 2003 a sanctions committee was tasked with drawing up a list of the leading members of the former Iraqi regime and their next of kin, and locating the assets belonging to them or to other persons acting on their behalf or under their control. The sanctions committee placed the first and second applicants on its list. Then the Security Council adopted a resolution establishing a procedure for removal from the list. In August 1990 the Swiss Federal Council adopted an order introducing measures to freeze the assets and economic resources of the former Iraqi government and senior government officials and any companies or businesses controlled or managed by them. The Federal Department of Economics was responsible for drawing up a list of the assets concerned using data supplied by the United Nations. The applicants had been on the list since May 2004. The Federal Council further adopted an order, valid until 30 June 2010, confiscating the Iraqi assets and economic resources that had been frozen and transferring them to the Development Fund for Iraq. According to the applicants, their assets in Switzerland had been frozen since August 1990 and proceedings to confiscate them had been under way since the entry into force of the confiscation order in May 2004. The applicants applied by letter in August 2004 to have their names taken off the list and the confiscation proceedings against their assets stayed. When that letter failed to produce the desired effect, the applicants requested by letter in September 2005 that the confiscation proceedings be conducted in Switzerland. In spite of the applicants’ objections, the Federal Department of Economics ordered the confiscation of their assets and explained that the sums would be transferred to the bank account of the Development Fund for Iraq within 90 days of the decision becoming effective. In support of its decision, it noted that the applicants’ names were on the lists of people and entities drawn up by the sanctions committee, that Switzerland was bound to implement Security Council resolutions, and that names could be removed from the appendix to the order concerning Iraq only by decision of the sanctions committee. The applicants applied to the Federal Court to have the decision set aside. By three almost identical judgments their appeals were dismissed on the merits. The applicants submitted that they had applied to have their names taken off the list. The sanctions committee does not appear to have taken a decision on the matter.

Communicated under Article 6 § 1 to ascertain whether the applicants had had access to a court to present their complaint concerning their civil rights and obligations.

 

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