Nada v. Switzerland [GC]

Information Note on the Court’s case-law No. 155

August-September 2012

Nada v. Switzerland [GC] - 10593/08

Judgment 12.9.2012 [GC]

Article 8

Article 8-1

Respect for family life

Respect for private life

Prohibition, under legislation implementing UN Security Council Resolutions, on travel through country surrounding enclave: violation

Article 1

Jurisdiction of states

Jurisdiction in relation to resident of enclaved area who was effectively prevented from travelling as a result of respondent State’s implementation of UN Security Council Resolution

Article 5

Article 5-1

Deprivation of liberty

Prohibition on travel through country surrounding enclave: inadmissible

Facts – The Swiss Federal Taliban Ordinance was enacted pursuant to several UN Security Council Resolutions. It had the effect of preventing the applicant, an Egyptian national, from entering or transiting through Switzerland due to the fact that his name had been added to the list annexed to the UN Security Council’s Sanctions Committee of persons suspected of being associated with the Taliban and al-Qaeda (“the list”). The applicant had been living in Campione d’Italia, an Italian enclave of about 1.6 square kilometres surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by a lake. The applicant claimed that the restriction made it difficult for him to leave the enclave and therefore to see his friends and family, and that it caused him suffering due to his inability to receive appropriate medical treatment for his health problems. The applicant further found it difficult to remove his name from the Ordinance, even after the Swiss investigators had found the accusations against him to be unsubstantiated.

Law

(a) Preliminary objections – The respondent Government argued that the application was inadmissible on several counts, namely that it was incompatible ratione personae and ratione materiae with the Convention, that the applicant did not have “victim” status, and that the applicant had failed to exhaust domestic remedies. The Court joined consideration of the issue of compatibility ratione materiae to the merits. As regards the remaining preliminary objections it held as follows:

(i) Compatibility ratione personae: The Court could not endorse the argument that the measures taken by the member states of the United Nations to implement the relevant Security Council resolutions were attributable to that organisation, rather than to the respondent State. Unlike the position in Behrami and Behrami v. France,* in which the impugned acts and omissions were attributable to UN bodies, the relevant resolutions in the instant case required States to act in their own names and to implement them at national level. The measures imposed by the Security Council resolutions had been 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 acts and omissions in question were thus attributable to Switzerland and capable of engaging its responsibility.

Conclusion: preliminary objection dismissed (unanimously).

(ii)  Victim status: The lifting of the sanctions, more than six years after they were imposed, could not be regarded as an acknowledgement by the Government of a violation of the Convention and had not been followed by any redress within the meaning of the Court’s case-law. Accordingly, the applicant could still claim to have been a victim of the alleged violations.

Conclusion: preliminary objection dismissed (unanimously).

(iii)  Exhaustion of domestic remedies: The Court noted that the applicant had not challenged the refusals to grant his requests for exemption from the sanctions regime, and that on two occasions he had been granted exemptions he had not used. However, even supposing that those exemptions had alleviated certain effects of the regime by allowing him to temporarily leave the enclave for certain reasons, the Court was 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 UN list. Noting that the applicant had, without success, submitted many requests to the national authorities for the deletion of his name from the list and that the Federal Court had dismissed his appeal without examining the merits of his complaint under the Convention, the Court took the view that the applicant had exhausted domestic remedies relating to the sanctions regime as a whole in respect of his complaints under Articles 5 and 8 of the Convention. It joined to the merits the objection that he had failed to exhaust domestic remedies in respect of his complaint under Article 13.

Conclusion: preliminary objection dismissed (unanimously).

(b)  Merits – Article 8: The impugned measures had left the applicant in a confined area for at least six years and had 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. There had thus been interference with the applicant’s rights to private life and family life. The measures had a sufficient legal basis and pursued the legitimate aims of preventing crime and contributing to national security and public safety.

The Court then considered whether the interference was justified. It reiterated that 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. When considering the relationship between the Convention and Security Council resolutions, the Court had found in Al-Jedda v. the United Kingdom** that 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 and that it was 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. In the present case, however, that presumption had been rebutted as Resolution 1390 (2002) expressly required the States to prevent individuals on the list from entering or transiting through their territory.

Nevertheless, the UN Charter did not impose on States a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII, but instead left them a free choice among the various possible models for transposition of those resolutions into their domestic legal order. Accordingly, Switzerland had enjoyed a limited but real latitude in implementing the relevant binding resolutions. The Court went on to consider whether the measures taken by the Swiss authorities were proportionate in light of this latitude. It found it surprising that the Swiss authorities had apparently not informed the Sanctions Committee until September 2009 of the Federal Prosecutor’s findings in May 2005 that the accusations against the applicant were clearly unfounded: a more prompt communication of the investigative authorities’ conclusions might have led to the applicant’s name being deleted from the UN list considerably earlier. As regards the scope of the prohibition, it had prevented the applicant not only from entering Switzerland but also from leaving Campione d’Italia at all, in view of its situation as an enclave, even to travel to any other part of Italy, the country of which he was a national. There was also a medical aspect to the case that was not to be underestimated: the applicant, who was born in 1931 and had health problems, was denied a number of requests he had submitted for exemption from the entry and transit ban for medical reasons or in connection with judicial proceedings. Nor had the Swiss authorities offered him any assistance in seeking a broad exemption from the ban in view of his particular situation. While it was true that Switzerland was not responsible for the applicant’s name being on the list and, not being his State of citizenship or residence, was not competent to approach the Sanctions Committee for delisting purposes, the Swiss authorities appeared never to have sought to encourage Italy to undertake such action or offer it assistance for that purpose. The Court considered in this connection that they had not sufficiently taken into account the realities of the case, especially the unique situation of the applicant geographically, and the considerable duration of the measures. The respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation. That finding dispensed the Court from determining the question of the hierarchy between the obligations arising under the Convention on the one hand and under the UN Charter on the other. The respondent Government had failed to show that they had attempted, as far as possible, to harmonise the obligations that they regarded as divergent. Their preliminary objection that the application was incompatible ratione materiae with the Convention was therefore dismissed. Having regard to all the circumstances, the restrictions imposed on the applicant’s freedom of movement for a considerable period of time had not struck a fair balance between his right to the protection of his private and family life and the legitimate aims pursued.

Conclusion: violation (unanimously).

Article 13: The Court observed that the applicant was able to apply to the national authorities to have his name deleted from the list and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine his complaints on the merits. 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 applicant on the ground that they did not respect human rights. The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level could not be regarded as an effective remedy within the meaning of Article 13 of the Convention.

Conclusion: violation (unanimously).

Article 5 § 1: Although the restrictions on the applicant’s freedom of movement were maintained for a considerable length of time, the area in which he was not allowed to travel was the territory of a third country which, under international law, had the right to prevent the entry of an alien. The restrictions in question did not prevent the applicant from freely living and moving within the territory of his permanent residence. Although that territory was small the applicant was not, strictly speaking, in a situation of detention, nor was he actually under house arrest. The sanctions regime permitted the applicant to seek exemptions from the entry or transit ban and such exemptions were indeed granted to him on two occasions (although he did not make use of them). Accordingly, the applicant had not been “deprived of his liberty” within the meaning of Article 5 § 1.

Conclusion: inadmissible (manifestly ill-founded).

Article 41: No claim made in respect of damage.

* Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007, Information Note no. 97.

** Al Jedda v. the United Kingdom [GC], no. 27021/08, 7 July 2011, Information Note no. 143.

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This summary by the Registry does not bind the Court.

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