Press Release, FOJ, 21.06.2016
Switzerland breached European Convention in Al-Dulimi case
In 2004, the then Federal Department of Economic Affairs (FDEA, now the EAER) froze the assets of Iraqi citizen Khalaf M. Al-Dulimi and his company Montana Management on the basis of UN Security Council Resolution 1483 (2003). In 2006, the FDEA confiscated these assets with a view to their transfer to Iraq. The appeals against the FDEA's rulings were rejected by the Federal Supreme Court, as the court of last instance, in 2008. The Supreme Court ruled that, with the exception of imperative provisions, sanctions under the UN charter took precedence over all of the UN member states' other obligations under international law. Al-Dulimi and his company then claimed before the ECHR that Switzerland had violated their right to a hearing in civil matters (Art. 6 of the Convention), because they had never been able to have the legality of the sanctions reviewed impartially by a court.
In its decision of 26 November 2013, a chamber of the ECHR ruled that the appellant had a right to have the action taken on the basis of the UN sanctions examined by the national courts. Consequently, Switzerland had violated the right to a hearing in civil matters. On 24 February 2014, Switzerland applied to have the case re-examined by the Grand Chamber. In its petition, it pointed out the conflict between two irreconcilable international obligations: the obligation of UN member states to implement UN Security Council sanctions in full, and the right to a fair trial which, under the European Convention on Human Rights, demands a review of those sanctions to ensure that they are compliant with the Convention.
Convention takes precedence
An initial assessment indicates that the comprehensive landmark judgment of the Grand Chamber confirms the enormous importance that the Convention places on the right to a hearing in civil matters. According to the ECHR, providing a UN resolution does not expressly rule out a judicial examination of sanctions, it must be interpreted as permitting an appropriate review by domestic courts. This review may be limited to a check that the sanctions have not been applied arbitrarily, thereby ensuring a balance between respect for human rights and the protection of peace and security.
Al-Dulimi now has 90 days in which to request a revision of the Federal Supreme Court decision of 2008. His assets will remain frozen until the revision process has been concluded. The ECHR also decided unanimously not to award the appellant any compensation. It held that there was no connection between the breach of Art. 6 of the Convention and a material loss which at present is purely hypothetical.
Switzerland will continue to work alongside other states to bring about an improvement in the UN system of sanctions and the legal protection afforded to the persons concerned. Specifically, the rights of the persons concerned have been strengthened step by step. The level of legal protection does not yet correspond to that afforded under the European Convention, however.
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