EHRM, 12-09-2012, nr. 10593/08

The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P; hereinafter ‘the Kadi judgment’) concerned the freezing of the applicants' assets pursuant to European Community regulations adopted in connection with the implementation of Security Council resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all UN member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council's Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen — a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (‘the EC Treaty’). They contended that the EC regulations had been adopted ultra vires.

On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the ‘General Court’) rejected those complaints and confirmed the lawfulness of the regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens), including those arising from the EC treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights.

Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the ‘Court of Justice of the European Union’). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008 the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the ‘Community judicature’ to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this ‘would not entail any challenge to the primacy of that resolution in international law’.

The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages:

…

The CJEC concluded that the contested regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled.

In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to urgently initiate a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so.

The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants' right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State party's delisting requests showed that the restrictions were not necessary to protect national security or public order.

The Committee also found an unlawful attack on the complainants' honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State party's requests for removal, their contact data were still accessible to the public.

In the Committee's opinion, although the State party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future.

On 20 July 2009 the complainants' names were removed from the list pursuant to a decision of the Sanctions Committee.

The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants' assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the Government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions.

In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations:

He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows:

The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counter-terrorism context (the ‘Terrorism Order’) and the order implementing the al-Qaeda and Taliban resolutions (the ‘al-Qaeda Order’). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown's dissenting opinion on this point).

In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), the Federal Court of Canada took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary.

Zinn J, who pronounced the lead judgment in the case, stated in particular:

He further observed:

After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban resolutions, the judge concluded that the applicant's right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment).

The Government requested the Court to declare the application inadmissible as being incompatible ratione personae with the Convention. They argued that the impugned measures had been based on Security Council Resolutions (1267 (1999) et seq.), which, under Articles 25 and 103 of the United Nations Charter, were binding and prevailed over any other international agreement. In this connection they referred in particular to the provisional measures order of the International Court of Justice in the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie ((Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 15, § 39):

The Government argued that, in those circumstances, Switzerland could not be held responsible internationally for the implementation of the measures at issue.

The Government added that those measures, emanating as they did from the United Nations Security Council, fell outside the scope of the Court's review. The application in the present case was therefore also inadmissible ratione materiae.

The applicant argued that his application was compatible ratione personae with the Convention. He took the view that the direct effect of the obligations under the Security Council resolutions was irrelevant to the issue of whether or not the restrictions imposed on him were attributable to the respondent State, since those restrictions had been authorised by the Government at national level in accordance with Article 190 of the Federal Constitution. Relying on Article 27 of the Vienna Convention on the Law of Treaties, he added that Switzerland could not hide behind its domestic legal arrangements when it came to fulfilling its international obligations (see paragraph 79 above).

The applicant also took the view that the Swiss authorities had applied the possibilities of derogation envisaged in the Security Council resolutions in a much more restrictive manner than was required by the sanctions regime. The Federal Court itself had noted this in its judgment of 14 November 2007. Rather than automatically having to implement the Security Council resolutions, the national authorities had therefore enjoyed a certain margin of appreciation in taking the measures at issue. The applicant added in this connection that his delisting, as decided by the Sanctions Committee on 23 September 2009, had not taken effect in Switzerland until a week later. He saw this as further proof that the application of the Security Council resolutions was not automatic.

Lastly, the applicant argued that it was not a matter, in the present case, of calling into question the primacy of the United Nations Charter under Article 103 thereof — a finding of a violation of the Convention not being, in his opinion, capable of affecting the validity of States' international obligations — but simply of ensuring that the Charter was not used as a pretext to avoid compliance with the provisions of the Convention.

The French Government took the view that the reservation of Convention observance, in the sense of ensuring ‘equivalent protection’, could not be applied appropriately in the present case because the measures laid down by Switzerland arose necessarily from the UN Security Council resolutions, which all States were required to apply and which also had to be given precedence over any other international rule. In those circumstances France was of the view that the measures in question could not be regarded as falling within Switzerland's ‘jurisdiction’ for the purposes of Article 1 of the Convention; otherwise that notion would be rendered meaningless.

The French Government pointed out that, although in its judgment of 30 June 2005 in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005-VI) the Court had regarded as compatible with Article 1 of the Convention an application disputing the validity of a national measure simply implementing a regulation of the European Communities that itself stemmed from a Security Council resolution, the Court had noted in that judgment that it was the EC regulation and not the Security Council resolution that constituted the legal basis of the national measure in issue (ibid., § 145).

The French Government were also convinced that, even though the measures in issue did not concern missions conducted outside the territory of the member States, like those in the cases of Behrami and Behrami v. France andSaramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007), but rather measures implemented in domestic law, the arguments emerging from that case-law, which stemmed from the nature of the Security Council's missions and States' obligations arising therefrom, should lead the Court likewise to declare the disputed measures attributable to the UN and thus to find the applicant's complaints incompatible ratione personae with the Convention. Thus they argued that the present case provided the Court with an opportunity to transpose onto the member States' actual territory the principles established in Behrami and Behrami, taking into account the hierarchy of international law norms and the various legal spheres arising therefrom.

The French Government also pointed out that, in its Kadi judgment (see paragraph 83 above), the Court of Justice of the European Communities had relied on the constitutional nature of the EC Treaty for its review of a regulation implementing Security Council resolutions. Such considerations being absent in the present case, the French Government had difficulty conceiving what could justify a finding by the Court, in disregard of Article 103 of the UN Charter, that Switzerland was responsible for the implementation of resolutions that it was required to apply and to which it also had to give precedence over any other undertaking.

The United Kingdom Government observed that the entry and transit ban had been imposed on the applicant in the context of the Taliban Ordinance, which they regarded as having merely implemented Security Council resolutions that were binding on all States, having been adopted under Chapter VII of the United Nations Charter (Article 25 thereof): the obligations arising from those resolutions thus took precedence, under Article 103 of the Charter, over all other international agreements. In this connection the United Kingdom Government were of the opinion that the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Articles 5 or 8 of the Convention. They took the view that, particularly in paragraph 2 (b) of Resolution 1390 (2002), the Security Council had used ‘clear and explicit language’ to impose on States specific measures that might conflict with their other international obligations, in particular those arising from human rights instruments. Referring to the judgment recently delivered in the case of Al-Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011), they thus argued that the respondent State had been obliged to apply the measures in issue.

The organisation JUSTICE considered that the sanctions regime established by Security Council Resolution 1267 (1999) was the source of the draconian restrictions on the Convention rights of the listed persons and their families, in particular the right to respect for private and family life, the right to the enjoyment of property and freedom of movement.

The severity of that interference with Convention rights was exacerbated by the inability of the listed persons to challenge effectively the decision to list them, including the evidential basis for the decision. Consequently, the sanctions regime also failed to afford those persons and their families the right of access to a court and the right to an effective remedy. JUSTICE took the view that the procedures of the sanctions committee did not therefore provide equivalent protection for those Convention rights.

Those conclusions, it observed, were reflected in the findings of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the UN Special Rapporteur on Terrorism and Human Rights and in the decisions of the Federal Court of Canada (Abdelrazik), the United Kingdom Supreme Court (Ahmed) and the European Court of Justice (Kadi) (see ‘Relevant international case-law’ and ‘Relevant case-law of other States’, paragraphs 82–92 and 93–101, above).

JUSTICE was convinced that the Court was not obliged to interpret Article 103 of the Charter in such a manner that it would result in Convention rights being displaced. In particular, the ‘maintenance of international peace and security’, though the primary function of the Security Council, was not the pre-eminent principle either of international law or of the Charter. At least equal importance was to be attached to the principle of respect for fundamental rights, as indeed was reflected in the Preamble to the Charter.

Article 1 of the Convention reads as follows:

As provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 130, ECHR 2011; Al-Jedda, cited above, § 74; Banković and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99, § 66, ECHR 2001-XII; and Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161). ‘Jurisdiction’ under Article 1 is a threshold criterion for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others, cited above, § 130; Al-Jedda, cited above, § 74; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII).

The notion of jurisdiction reflects the meaning given to that term in public international law (see Assanidze v. Georgia, no. 71503/01, § 137, ECHR 2004-II; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; and Banković and Others, cited above, §§ 59–61), such that a State's jurisdiction is primarily territorial (see Al-Skeini and Others, cited above, § 131, and Banković and Others, cited above, § 59) and is presumed to be exercised normally throughout the State's territory (see Ilaşcu and Others, cited above, § 312).

Relying on the Court's decision in Behrami and Behrami (cited above), the intervening French Government, in particular, argued that the measures taken by the member States of the United Nations to implement Security Council resolutions under Chapter VII of the Charter were attributable to the United Nations and were thus incompatible ratione personae with the Convention. The Court cannot endorse that argument. It would point out that it found in Behrami and Behrami that the impugned acts and omissions of KFOR, whose powers had been validly delegated to it by the Security Council under Chapter VII of the Charter, and those of UNMIK, a subsidiary organ of the United Nations set up under the same Chapter, were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective security objective (ibid., § 151). In the present case, by contrast, the relevant Security Council resolutions, especially Resolutions 1267 (1999), 1333 (2000), 1373 (2001) and 1390 (2002), required States to act in their own names and to implement them at national level.

In the present case the measures imposed by the Security Council resolutions were 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 IMES, then the ODM). The acts in question therefore relate to the national implementation of UN Security Council resolutions (see, mutatis mutandis, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above, § 137, and contrast Behrami and Behrami, cited above, § 151). The alleged violations of the Convention are thus attributable to Switzerland.

The measures in issue were therefore taken in the exercise by Switzerland of its ‘jurisdiction’ within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State's responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.

Accordingly, the Court dismisses the objection that the application is incompatible ratione personae with the Convention.

The respondent Government argued that the present application was also incompatible ratione materiae with the Convention. In this connection they emphasised the binding nature of the resolutions adopted by the Security Council under Chapter VII of the United Nations Charter and its primacy over any other international agreement, in accordance with Article 103 thereof.

The Court finds that these arguments concern more the merits of the complaints than their compatibility with the Convention. Consequently, the respondent Government's objection as to the incompatibility ratione materiae of the application with the Convention should be joined to the merits.

The respondent Government observed that, according to the Security Council's sanctions regime, exemptions from the entry and transit ban could be granted when they were necessary for the fulfilment of a judicial process, or for other reasons, in particular of a medical, humanitarian or religious nature, subject to the approval of the Sanctions Committee (see Resolution 1390 (2002), paragraph 2(b)). To take account of such situations, Article 4a § 2 of the Taliban Ordinance provided that the Federal Office of Migration (the ODM) could, in accordance with the decisions of the Security Council or for the protection of Swiss interests, grant exemptions.

The Government contended that the various decisions given by the Office had not been appealed against, and the action taken before it concerned only the question of the delisting of the applicant and the organisations associated with him from Annex 2 to the Taliban Ordinance.

The Government pointed out that, both before and after the Federal Court's judgment, the applicant had not appealed against any decision of the former Federal Office for Immigration, Integration and Emigration (the IMES, incorporated into the ODM on its creation in 2005) or of the ODM concerning exemptions from the sanctions regime. In addition, the authorities had granted exemptions (in decisions of 20 September 2006 and 11 September 2008) that had not been used by the applicant. The applicant had explained in this connection that the duration of the exemptions had not been sufficient, in view of his age and the distance to be travelled, for him to make the intended journeys. On this subject the Government pointed out that the first exemption, for one day, had been granted for a journey to Milan in connection with judicial proceedings, and that it took only one hour to drive from Campione d'Italia to the centre of Milan. The second exemption, for two days, had been granted to the applicant for a journey to Berne and Sion, both cities being less than three and a half hours away from Campione by car.

Lastly, the Government argued that the applicant could at any time have requested to move house, even temporarily, to another part of Italy, the country of which he was a national. Such a request would have been submitted by the competent Swiss authority (the IMES, then the ODM) to the Sanctions Committee. As the sanctions had been formulated in general terms, the Government were of the opinion that the Committee would most probably have authorised the applicant's move.

For these reasons the Government submitted that the applicant had failed to exhaust domestic remedies.

Concerning the first three refusals by the ODM (26 March 2004, 11 May 2007 and 2 August 2007), the applicant contended that there was no clear domestic case-law as to whether the Swiss authorities had any margin of appreciation in the granting of exemptions from the restrictions imposed on him and that no clarification had been provided by the Federal Court in this connection. Furthermore, no action appeared to have been taken by the ODM or any other authority to clarify the position regarding the grant of exemptions. In his submission it could not therefore be said that an effective remedy, within the meaning of the Court's case-law, was available.

As regards the Government's argument that he had failed to make use of the exemptions granted to him by the ODM (on 20 September 2006 and 11 September 2008), he alleged that they concerned only a partial lifting of the measures imposed on him, in respect of very specific situations. Given his age and the length of the journeys involved, he argued that the exemptions for one or two days were far from sufficient.

As to the general sanctions regime, the applicant submitted that he had exhausted domestic remedies, because he had challenged before the Federal Court the restrictions imposed by the Taliban Ordinance, of which he complained before the Court.

The applicant further observed that the Government's argument that a request to move to another part of Italy would have had greater prospects of success than the request for delisting was purely speculative. He also pointed out that such an option — which he did not consider possible in his case, particularly because of the freezing of his assets by the sanctions regime and the fact that it had not been envisaged by the Federal Court — would in any event have provided redress only for part of the impugned restrictions.

The applicant alleged that the restrictions on his freedom of movement had prevented him from taking part in family events (such as funerals or weddings) which had taken place during the period when he was unable to travel freely on account of the sanctions regime. He thus claimed to be a victim of a violation of his right to respect for his private and family life. In this connection, he contended that his status as an Italian national, not resident on the territory of the respondent State, did not prevent him from complaining of a violation of his rights by Switzerland, especially given the very special situation of the Campione d'Italia enclave, being surrounded by Swiss territory. He even took the view that, given the integration of Campione d'Italia into the Canton of Ticino, in particular its economic integration, it would have been appropriate for the Swiss authorities to treat him as a Swiss national for the purposes of the sanctions regime. Moreover, he asserted that, contrary to the Government's allegation, he did not have the option of living elsewhere in Italy.

The applicant further observed that the addition of his name to the list annexed to the Taliban Ordinance had caused damage to his honour and reputation, since that list enumerated persons suspected of helping to finance terrorism. In support of that view he referred to the case of Sayadi and Vinck v. Belgium (see paragraphs 88–92 above) in which the Human Rights Committee found that the addition of the complainants' names to the Sanctions Committee's list had constituted an unlawful attack on their honour.

In the applicant's submission, those circumstances were aggravated by the fact that he had never been given an opportunity to challenge the merits of the allegations against him.

There had thus been a violation of Article 8 on various accounts.

The Government observed that the applicant had been free to receive all the visits he wished in Campione d'Italia, in particular from his grandchildren. The applicant had not alleged that it would have been impossible or particularly difficult for his family or friends to go to Campione d'Italia, where he could have carried on his family and social life as he saw fit, without any restriction whatsoever. As regards exceptional events, such as the marriage of a friend or relative, he could have sought an exemption from the applicable rules. In addition, as shown in connection with the exhaustion of domestic remedies, the applicant could have requested to move to another part of Italy. Lastly, the Convention did not protect the right of a foreign national to visit a State that had prohibited him from entering it simply so that he could maintain his residence in an enclave which he could not leave without crossing that State. For all those reasons the Government were of the opinion that the disputed measures did not constitute interference with the rights guaranteed by Article 8.

In response to the applicant's allegation that he had never been able to find out the factors which had led to the impugned measures, or to challenge them before a court, the Government stated that, as shown in their earlier observations, the impugned measures had not breached the applicant's rights under Article 8. Consequently, the procedural aspect of that provision was not applicable.

For those reasons the Government were of the opinion that the restrictions imposed did not constitute an interference with the applicant's rights under Article 8. If the Court were to find otherwise, the Government argued that the measure was in any event necessary in a democratic society under Article 8 § 2.

The Court finds it appropriate to begin by examining the applicant's allegation that he sustained interference with his right to respect for his private and family life on account of the fact that he was prohibited from entering or passing through Switzerland.

The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory. In other words, the Convention does not as such guarantee the right of an alien to enter a particular country (see, among many other authorities, Maslov v. Austria [GC], no. 1638/03, § 68, ECHR 2008; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII; Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94).

In the present case, the Court observes that the Federal Court found that the impugned measure constituted a significant restriction on the applicant's freedom (see paragraph 52 above), as he was in a very specific situation on account of the location of Campione d'Italia, an enclave surrounded by the Swiss Canton of Ticino. The Court would endorse that opinion. It takes the 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 (see, mutatis mutandis, Agraw v. Switzerland, no. 3295/06, § 51, and Mengesha Kimfe v. Switzerland, no. 24404/05, §§ 69–72, both judgments of 29 July 2010).

In view of the foregoing, the Court finds that there has been an interference with the applicant's right to respect for his private and family life within the meaning of Article 8 § 1.

The interference with the applicant's right to respect for his private and family life, as found above, will breach Article 8 unless it satisfies the requirements of paragraph 2 of that provision. It thus remains to be determined whether it was ‘in accordance with the law’, pursued one or more of the legitimate aims enumerated in that paragraph and was ‘necessary in a democratic society’ to achieve such aims. The Court finds it appropriate first to reiterate certain principles that will guide it in its subsequent examination.

The applicant argued, relying on the Al-Nashif v. Bulgaria case (no. 50963/99, 20 June 2002), that the competing interests of the protection of sources and information critical to national security, on the one hand, and the right to an effective remedy, on the other, could be reconciled through a specially adapted procedure. In the present case, however, no such procedure had been available, either before United Nations bodies or before the domestic authorities.

He further pointed out that the above-mentioned Sayadi and Vinck case (see paragraphs 88–92 above), where the Human Rights Committee had concluded that an effective remedy was constituted by the court order requiring the Belgian Government, which had forwarded the complainants' names to the Sanctions Committee in the first place, to submit a delisting request to that Committee, was not relevant to the present case for two reasons. First, because he was not complaining that Switzerland had failed to have his name removed from the United Nations list; the Human Rights Committee had clearly confirmed that the relevant authority lay entirely with the Sanctions Committee and not with the State itself. Secondly, in his case, the Federal Court, unlike the Brussels Court of First Instance in Sayadi and Vinck, although observing that the respondent Government were obliged to support the applicant in any endeavour to secure delisting, had not actually ordered it to do so.

The applicant thus argued that the conformity of the impugned measures with Articles 3, 8 and 9 of the Convention was not subject to the scrutiny of any domestic court and that, accordingly, there had been a violation of Article 13.

In the Government's submission, Article 13 required that where an individual had an arguable complaint that there had been a violation of the Convention, he or she should have a remedy before a ‘national authority’. The Government submitted that, having regard to their previous arguments, the applicant's complaints were not made out. They argued that, should the Court decide not to follow that assessment, there had not in any event been a violation of Article 13 taken together with Article 8 in the present case.

The Government pointed out that the applicant had requested the deletion of his name and those of the organisations with which he was associated from the list annexed to the Taliban Ordinance. That request had apparently been examined by the Federal Court, which had found that the applicant did not have an effective remedy in respect of that issue since, being bound by the Security Council resolutions, it was not able to annul the sanctions imposed on the applicant. The Federal Court had nevertheless emphasised that, in that situation, it was for Switzerland to request the applicant's delisting or to support such a procedure initiated by him. In this connection, the Government observed that Switzerland was not itself entitled to lodge a delisting request — as the applicant did not have Swiss nationality and did not live in Switzerland — as had been confirmed by the Sanctions Committee. Switzerland had simply had the possibility of supporting a request lodged by the applicant himself, and it had apparently done so by sending his lawyer a formal attestation of the discontinuance of criminal proceedings against him.

The Court observes that Article 13 guarantees the availability at national level of a remedy by which to complain about a breach of the Convention rights and freedoms. Therefore, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention, but the remedy must in any event be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State (see Büyükdağ v. Turkey, no. 28340/95, § 64, 21 December 2000, with the cases cited therein, especially Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI). Under certain conditions, the aggregate of remedies provided for under domestic law may satisfy the requirements of Article 13 (see, in particular, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116).

However, Article 13 requires that a remedy be available in domestic law only in respect of grievances which can be regarded as ‘arguable’ in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131). It does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts, cited above, § 40), but seeks only to ensure that anyone who makes an arguable complaint about a violation of a Convention right will have an effective remedy in the domestic legal order (ibid., § 39).

The Court is of the opinion that, in view of its finding of a violation of Article 8 above, the complaint is arguable. It therefore remains to be ascertained whether the applicant had, under Swiss law, an effective remedy by which to complain of the breaches of his Convention rights.

The Court observes that the applicant was able to apply to the national authorities to have his name deleted from the list annexed to the Taliban Ordinance and that this could have provided redress for his complaints under the Convention. However, those authorities did not examine on the merits his complaints concerning the alleged violations of the Convention. 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 (see paragraph 50 above).

The Federal Court, moreover, expressly acknowledged that the delisting procedure at United Nations level, even after its improvement by the most recent resolutions, could not be regarded as an effective remedy within the meaning of Article 13 of the Convention (ibid.).

The Court would further refer to the finding of the CJEC that ‘it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations’ (see the Kadi judgment of the CJEC, § 299, see paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those resolutions.

Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81–82, paragraph 96 above).

Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 taken together with Article 8.