Nada v. Switzerland – ECHR

“In today’s Grand Chamber judgment in the case of Nada v. Switzerland (application no. 10593/08), which is final, the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and
a violation of Article 8 taken together with Article 13 (right to an effective remedy) of the Convention.
The case concerns the restricting of the applicant’s cross-border movement and the addition of his name to a list annexed to a federal Ordinance, in the context of the implementation by Switzerland of United Nations Security Council counter-terrorism resolutions.
The Court observed that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. As Switzerland had failed to harmonise the international obligations that appeared contradictory, the Court found that there had been a violation of Article 8.
that all persons listed in Annex 2, including the applicant, were banned from entering or transiting through Switzerland.
When he visited London in November 2002, the applicant was arrested and deported back to Italy, his money also being seized. In October 2003 the Canton of Ticino revoked the applicant’s special border-crossing permit and in November the Swiss Federal Office for Immigration, Integration and Emigration (the “IMES”) informed him that he was no longer authorised to cross the border. In March 2004 Mr Nada lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy, but the request was dismissed as ill-founded.
In May 2005 the Swiss Federal Prosecutor closed the investigation concerning the applicant, finding that the accusations against him were unfounded. The applicant then asked the Federal Council to delete his name and those of the organisations associated with him from the Annex to the Taliban Ordinance. His request was rejected on the grounds that Switzerland could not delete names from its national list while they still appeared on the UN Sanctions Committee’s list.
Mr Nada unsuccessfully lodged an administrative appeal with the Federal Department for Economic Affairs then appealed to the Federal Council, which referred his case to the Federal Court. That court dismissed his appeal on the merits, finding that, under Article 25 of the United Nations Charter, the UN member States had undertaken to accept and carry out the decisions of the Security Council.
On 22 February 2008, at a meeting between the applicant’s lawyer and a representative of the Federal Department of Foreign Affairs, the latter indicated that Mr Nada could ask the Sanctions Committee for a more extensive exemption on account of his particular situation, also repeating that Switzerland could not itself apply for delisting. The Swiss Government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The representative lastly suggested that the lawyer contact the Italian Permanent Mission to the United Nations.
On 5 July 2008 the Italian Government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed, but the Committee denied that request.
In August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request for the deletion of his name from the Sanctions Committee’s list. On 23 September 2009 Mr Nada’s name was finally deleted from the list annexed to the Security Council resolutions and on 29 September 2009 the Annex to the Taliban Ordinance was amended accordingly. By a motion introduced on 12 June 2009 by Dick Marty and passed on 1 March 2010 by the Swiss Parliament, the Foreign Policy Commission of the National Council requested the Federal Council to inform the UN Security Council that from the end of 2010 the sanctions prescribed against individuals under the counter-terrorism resolutions would no longer be applied.
Complaints, procedure and composition of the Court
Relying on Article 8 (right to respect for private and family life), the applicant argued that the ban imposed on him, preventing him from entering or transiting through Switzerland, had breached his right to respect for his private, professional and family life. As a result of the ban, he had been unable to see his doctors in Italy or in Switzerland or visit family and friends. The addition of his name to the list annexed to
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the Taliban Ordinance had damaged his honour and reputation. Relying on Article 13 (right to an effective remedy) he complained that there had been no effective remedy by which to have his complaints examined in the light of the Convention. Under Article 5 § 1 (right to liberty and security) the applicant argued that by preventing him from entering or transiting through Switzerland, because his name was on the UN Sanctions Committee’s blacklist, the authorities had deprived him of his liberty. Lastly, under Article 5 § 4 (right to a prompt decision on the lawfulness of detention) he complained that the Swiss authorities had not reviewed the lawfulness of the restrictions on his freedom of movement.
The application was lodged with the European Court of Human Rights on 19 February 2008. On 30 September 2010 the Chamber relinquished jurisdiction in favour of the Grand Chamber.
Under Article 36 of the Convention, the President of the Grand Chamber authorised the French and United Kingdom Governments, together with the non-governmental organisation JUSTICE, to submit written comments as third parties, and the United Kingdom Government also took part in the hearing”. ECHR Press Communiqué?