European Court of Human Rights

Information Note on the Court’s case-law No. 168

November 2013

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

Judgment 26.11.2013 [Section II] See: [2013] ECHR 1173

Article 6

Civil proceedings

Article 6-1

Access to court

Lack of right of appeal against sanctions imposed on applicants on basis of UN Security Council resolutions: violation

 

Facts - 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 applicants on its list. Then the Security Council adopted a resolution creating a de-listing procedure. 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 Economic Affairs 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 ninety 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 a de-listing request. The request was rejected on 6 January 2009.

Law - Article 6 § 1

(a)  Coexistence of the Convention safeguards and the obligations imposed on States by Security Council resolutions - The Convention did not prevent Contracting Parties from transferring sovereign powers to an international organisation for the purposes of cooperation in certain fields of activity. State action taken in compliance with such legal obligations was justified as long as the relevant organisation was considered to protect fundamental rights in a manner which could be considered at least equivalent to that provided for under the Convention. States nevertheless remained responsible under the Convention for all acts falling outside their strict international legal obligations, particularly where they had exercised discretionary powers. Most cases coming before the Court relating to the equivalent protection criterion concerned the relationship between European Union law and the guarantees deriving from the Convention. Nevertheless, the Court had never excluded the application of this criterion to a situation concerning compatibility of acts originating from other international organisations with the Convention. The instant case could be considered in the light of the equivalent protection criterion, notably because the relevant Security Council resolutions did not confer discretionary powers on the States in question in implementing the consequent obligations. The system in place allowing the applicants to apply to a “focal point” for removal from the lists drawn up by the Security Council did not provide equivalent protection to that required by the Convention. It lacked a supervisory mechanism comparable to the Office of the Ombudsperson set up under the sanctions regime against the former Iraqi Government. Furthermore, the procedural defects of the sanctions regime could not be considered to have been offset by internal human rights protection mechanisms, given that the Federal Court had refused to review the merits of the impugned measures. The presumption of equivalent protection was therefore not applicable in this case. It was consequently for the Court to determine the merits of the complaint concerning the right of access to a court.

(b)  Examination of the complaint concerning access to a court - The applicants, who had tried in vain to appeal to the Swiss courts against the confiscation of their assets, had been restricted in their right of access to a court. The restriction had pursued a legitimate aim, namely the maintenance of peace and international security. The refusal by the national courts, including the Federal Court, to examine the merits of the applicants’ complaints concerning the confiscation of their assets had been motivated by their wish to ensure effective implementation, at domestic level, of the obligations arising from the Resolution in question. The Resolution, which provided for the freezing and confiscation of assets, had not been adopted in response to any imminent terrorist threat but had been geared to restoring the Iraqi Government’s autonomy and sovereignty and securing to the Iraqi people the right freely to determine their political future and control their natural resources. Consequently, the impugned measures had been adopted in the wake of an armed conflict which had begun in 1990. Therefore, more differentiated, specifically targeted measures would probably be more conducive to the effective implementation of the Resolutions. Furthermore, the applicants’ assets had been frozen in 1990 and their confiscation had been ordered on 16 November 2006. The applicants had therefore been deprived of access to their assets for a considerable period of time, even if the confiscation decision had not yet been implemented. The applicants were entitled under Article 6 § 1 of the Convention to have these measures reviewed by a national court. The Federal Court had ruled that it was incumbent on the lower court to grant the first applicant a brief final period within which to submit to the Sanctions Committee a fresh request for de-listing in accordance with the improved arrangements set out in Resolution 1730 (2006), including the setting up of a focal point for submission of de-listing requests. However, that request had been rejected on 6 January 2009.

Accordingly, in the absence of any effective and independent judicial review, at UN level, of the legitimacy of registering individuals and entities on their lists, it was vital that such individuals and entities should be authorised to request an examination by the national courts of any measure adopted in application of the sanctions regime. As no such examination had been available to the applicants, it followed that the very essence of their right of access to a court had been infringed.

Conclusion: violation (four votes to three).

Article 41: claim in respect of damage dismissed.

(See also Nada v. Switzerland [GC], 10593/08, 12 September 2012, Information Note 155; and Al-Jedda v. the United Kingdom [GC], 27021/08, 7 July 2011, Information Note 143)

 

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