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Court set for judgement on Swiss use of UN anti-terrorism resolutions

Judges will decide next week if Switzerland’s application of UN anti-terrorism resolutions breached human rights laws.

The European Court of Human Rights will deliver a Grand Chamber judgment in the case of Nada v. Switzerland (application no. 10593/08) at a public hearing on 12 September at 10h (CET).

The complaint was brought by Youssef Moustafa Nada, an Italian and Egyptian national, who was born in 1931 and has lived since 1970 in Campione d’Italia, an Italian enclave inside the Swiss Canton of Ticino. The case concerns the restricting of Nada’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.

In October 1999 the UN Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban. On 2 October 2000 the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (the ‘Taliban Ordinance’).

By Resolution 1333 (2000) the Security Council extended the sanctions regime, requesting the UN Sanctions Committee to draw up a list of persons and organisations associated with Osama bin Laden and al-Qaeda. The Taliban Ordinance was amended accordingly by the Swiss Government.

In November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list, then to the list in the Annex to the Taliban Ordinance.

The Security Council adopted Resolution 1390 (2002) introducing a travel ban for all individuals, groups, undertakings and associated entities on the sanctions list. The Taliban Ordinance was amended so that all persons on the list annexed to it, including the applicant, were banned from entering or transiting through Switzerland.

As a result the applicant was prevented, for several years, from leaving the 1.6 sq. km enclave.

On 31 May 2005 the Swiss Federal Prosecutor closed a criminal investigation concerning the applicant, finding that the accusations against him were unfounded.

The applicant then requested 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 the annex to the Ordinance while they still appeared on the UN Sanctions Committee’s list.

On 23 September 2009 the applicant’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.

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 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 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 to his freedom of movement.

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