Implementation of UN Sanctions must respect human rights

12 Sep 2012 | by Caroline Sweeney

Nada v. Switzerland

The European Court of Human Rights’ Grand Chamber has unanimously found, in a case in which the French and United Kingdom Governments and JUSTICE had intervened, that the implementation by Switzerland of United Nations Security Council counter-terrorism resolutions had violated the European Convention on Human Rights.

The applicant, an 80 years old Italian businessman represented by Jeremy McBride, had been confined for nearly 7 years to Campione d’Italia, an Italian enclave of about 1.6 sq.km inside the Swiss Canton of Ticino which was separated from the rest of Italy by Lake Lugano, without any specific allegations ever being made or any form of hearing in which they could be challenged.

In a ruling that makes it clear that the mandatory nature of Security Council resolutions of the United Nations will not excuse non-observance of human rights standards where there is clearly discretion as to the manner of their implementation, the European Court rejected Switzerland’s preliminary objections that the application was incompatible ratione personae with the Convention and that the applicant lacked victim status, as well as its preliminary objection that domestic remedies had not been exhausted.

In the Court’s view the Swiss authorities had not sufficiently taken into account the realities of the case, especially the geographical situation of the Campione d’Italia enclave, the duration of the measures imposed or the applicant’s nationality, age and
health. As it had been possible for Switzerland to decide how the Security Council resolutions were to be implemented in its legal order, it could have been less harsh in imposing the sanctions regime on the applicant.

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.

Furthermore the Court found that, as the applicant did not have any effective means of obtaining the removal of his name and therefore no remedy in respect of the violations of his rights, there had been a violation of Article 13 taken together with Article 8.

However, the Court did not consider that the restrictions to which the applicant had been subjected amounted to inhuman and degrading treatment or violations of his right to liberty and security or to freedom to manifest his religion or belief.

Jeremy McBride acted for Mr Nada.

Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in this case.

Click to view the judgment in Nada v Switzerland