In Nada v. Switzerland, ECHR Finds Swiss Implementation of UN Counter-Terror Sanctions Violated Rights to Respect for Private and Family Life, Effective Remedy
Yesterday, the Grand Chamber of the European Court of Human Rights issued its judgment in Nada v. Switzerland [GC], no. 10593/08, a case concerning a Swiss entry and transit ban imposed on Mr. Youssef Moustafa Nada, an Italian and Egyptian citizen, by virtue of his inclusion in 2001 on a list of individuals and entities purportedly associated with Osama bin Laden and al-Qaeda which had been developed by a UN Security Council committee pursuant to Resolutions 1267 (1999), 1333 (2000), and 1390 (2002) and adopted domestically via the Swiss “Taliban Ordinance.” Mr. Nada lived in an Italian enclave, Campione d’Italia, which is surrounded by Swiss territory, and was therefore effectively prevented from leaving his community. The Swiss Federal Court found the restriction to be “tantamount to house arrest.” Mr. Nada’s alleged connections to terrorism were not substantiated in investigations by Italian and Swiss authorities; in 2009, the United States eventually moved for his removal from the UN list.
In his 2008 application to the ECHR, Mr. Nada, represented by human rights attorney Jeremy McBride, alleged that the ban amounted to ill-treatment; and violated his rights to liberty; respect for private and family life, honor and reputation; and freedom of religion, in contravention of articles 3, 5, 8 and 9 of the European Convention on Human Rights. He also asserted that there was no effective remedy available under Swiss law (article 13). The applicant alleged that the ban prevented him from obtaining needed medical care for his various ailments, and from meeting with his legal counsel.
Following his inclusion on the UN Security Council Sanctions Committee’s list, Mr. Nada’s movement was restricted and his alleged connections with terrorist groups investigated by Switzerland and Italy. When he traveled to London in 2002, he was arrested and deported to Italy. The following year, his border-crossing permit was revoked. In its resolution of Mr. Nada’s complaint, the Swiss Federal Court held that obligations arising under the UN Charter took precedence over the European Convention on Human Rights and International Covenant on Civil and Political Rights, but that the UN Charter’s implementation must be limited by jus cogens norms. Nonetheless, it found no jus cogens norms to be violated by the travel ban. In 2008, the Security Council Sanctions Committee rejected Italy’s request that Mr. Nada’s name be removed from the list, allegedly without first providing Mr. Nada an opportunity to be heard. In 2009, following a request by the United States, the applicant’s name was finally removed from the list, and the Swiss registry was accordingly amended.
Although Italy did not exercise its right to intervene in the case before the ECHR, the French and British governments submitted written observations and the United Kingdom also participated in the March, 2011 hearing before the Court. In September, 2010, the ECHR chamber that had been processing the case on a priority basis relinquished jurisdiction to the Grand Chamber, which received a third party intervention from the non-governmental organization JUSTICE.
Judgment of 12 September 2012
With regard to exhaustion of domestic remedies, the ECHR held that because the applicant had pursued available procedures to get his name removed from the list, the fact that he had not pursued other processes for obtaining an exemption to the travel ban were unimportant because the alleged violations “stemmed from the addition of his name to the list.” Judgment at para. 144.
In finding a violation of Article 8, the Court explained its “view that the measure preventing the applicant from leaving the very confined area of Campione d’Italia for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with others – in particular his friends and family – living outside the enclave” and found the interference unjustified. The Court concluded the travel ban was disproportionate to its legitimate aim because Switzerland and Italy had not been able to substantiate the allegations against Mr. Nada of connections to terrorism, and taking into account his medical ailments; moreover, the Court determined Switzerland had latitude in its interpretation and application of the UN Security Council resolutions due to their wording. Id., paras. 165-199.
The Court noted that, although Mr. Nada was neither a citizen nor resident of Switzerland, that country’s failure to “encourage Italy” to request Mr. Nada’s removal from the list or “offer it assistance for that purpose” (para. 194) contravened its obligation to attempt “all possible measures to adapt the sanctions regime to the applicant’s individual situation” (para. 196).
The Court similarly found a violation of Article 13, holding “the applicant did not have any effective means of obtaining the removal of his name from the [Swiss] list…and therefore no remedy in respect of the Convention violations that he alleged.”
The Court found Mr. Nada’s claim of an Article 5 (liberty) violation manifestly ill-founded as he was “not, strictly speaking in a situation of detention, nor was he actually under house arrest” (para. 230). The Court also rejected the applicant’s claims regarding Articles 3 (ill treatment) and 9 (freedom of religion), finding no appearance of a violation.
Three separate opinions focused on the alleged violation of Article 8. The joint concurring opinion of Judges Bratza, Nicolaou and Yudkivska diverged from the majority’s reasoning regarding Article 8, expressing “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’.” A concurring opinion by Judge Rozakis, joined by judges Spielmann and Berro-Lefevre, took issue with the Court’s failure to address the honor and reputation components of the Article 8 analysis. In his concurring opinion, Judge Malinverni characterized the reasoning supporting the Court’s conclusion that the interference with private and family life was not necessary in a democratic society to be unconvincing, particularly with regard to the latitude Switzerland had in implementing the resolutions.
Other cases involving the human rights implications of states’ implementation of UN Security Council resolutions include Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the EU and Commission of the EC (ECJ Judgement of 3 September 2008; Human Rights Committee, Sayadi and Vinck v. Belgium, Comm. No. 1427/2006, Views of 22 October 2008; and [GC], no. 27021/08, Judgment of 7 July 2011. For further analysis of the Security Council resolutions, see Helen Keller and Andreas Fischer, The UN Anti-terror Sanctions Regime under Pressure, Human Rights Law Review (2009).
See additional ECHR judgments regarding Switzerland here.