Case of European Court of Human Rights, June 21, 2016 (case AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND)

Defense:SWITZERLAND
Resolution Date:June 21, 2016
SUMMARY

Preliminary objection dismissed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-3 - Ratione materiae);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

 
FREE EXCERPT

GRAND CHAMBER

CASE OF AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND

(Application no. 5809/08)

JUDGMENT

STRASBOURG

21 June 2016

This judgment is final but it may be subject to editorial revision.

In the case of Al-Dulimi and Montana Management Inc. v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Mirjana Lazarova Trajkovska, President, Dean Spielmann,Josep Casadevall,Angelika Nußberger, Ineta ZiemeleMark Villiger,Khanlar Hajiyev,Vincent A. De Gaetano,Julia Laffranque, Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Helen Keller,André Potocki,Aleš Pejchal,Dmitry Dedov,Egidijus Kūris,Robert Spano, judges,and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 10 December 2014 and on 9 March 2016,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 5809/08) against the Swiss Confederation lodged with the Court on 1 February 2008 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Khalaf M. Al-Dulimi (“the first applicant”), and on behalf of Montana Management Inc. (“the second applicant” or “the applicant company”), a company incorporated under the laws of Panama and having its registered office in Panama, of which the first applicant is the managing director.

2. The applicants alleged, in particular, that the confiscation of their assets by the Swiss authorities pursuant to a resolution of the United Nations Security Council had been ordered in the absence of any procedure complying with Article 6 of the Convention.

3. The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 February 2011 the Court’s Sections were reorganised. The application was thus reallocated to the Second Section (Rule 25 § 1 and Rule 52 § 1).

4. The parties each submitted written comments on the other’s observations. Observations were also received from the French and United Kingdom Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a)).

5. On 28 May 2013 the Second Section expressed its intention to relinquish jurisdiction to the Grand Chamber, in accordance with Article 30 of the Convention. In a letter of 18 June 2013 the respondent Government objected to such relinquishment. On 17 September 2013 the Chamber took note of the Government’s objection and continued to examine the case.

6. On 26 November 2013 a Chamber of the Second Section composed of Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić and Helen Keller, judges, and Stanley Naismith, Section Registrar, delivered a judgment finding, by a majority, that there had been a violation of Article 6 § 1 of the Convention. The partly dissenting opinion of Judge Sajó and the dissenting opinion of Judge Lorenzen, joined by Judges Raimondi and Jočienė, were appended to the judgment.

7. On 25 February 2014 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73. On 14 April 2014 the panel of the Grand Chamber granted that request. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

8. The applicants and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from the French and United Kingdom Governments, which had been given leave by the President to take part in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 3 (a)).

9. A hearing took place in public in the Human Rights Building, Strasbourg, on 10 December 2014 (Rule 59 § 3).

There appeared before the Court:

(a) for the respondent GovernmentMrF. Schürmann, Head of the International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and PoliceAgent,MrV. Zellweger, Director of the Public International Law Directorate, Federal Department of Foreign Affairs,Mr R. Vock, Head of Sanctions Section, State Secretariatfor Economic Affairs, Federal Department of Economic,Affairs Training and Research,MrA. Scheidegger, Deputy Head of the International Human Rights Protection Unit, Federal Office of Justice,Federal Department of Justice and Police,MsC. Ehrich, scientific assistant, International Human Rights Protection Unit, Federal Office of Justice, Federal Department of Justice and Police,MsN. Blum, scientific assistant, International Treaties,Section Public International Law Directorate, Federal Department of Foreign Affairs,Advisers;

(b) for the applicantsMrJ.-C. Michel, member of the Geneva Bar,MrT. Obeidat, member of the Amman and New YorkBars,MrS. Fries, member of the Geneva Bar,Counsel,Prof.A. Bianchi, professor of international law, Institut de Hautes Études Internationales et du Développement,Geneva, Adviser,MrK. Al-Dulimi, applicant;

(c) for the United Kingdom GovernmentMsI. Rao,Agent,MrJ. Wright QC MP, Attorney General,MrS. Wordsworth QC,Counsel,MrA. Murdoch,MrT. Rycroft,MsT. Njai,MsN. Davey,Advisers;

(d) for the French GovernmentMrG. de Bergues, Deputy Director of Legal Affairs, Ministry of Foreign Affairs,Co-Agent,MrD. Lemétayer, Drafting Officer, Public InternationalLaw Section, Ministry of Foreign Affairs,MrR. Féral, Drafting Officer, Human rights Section, Ministry of Foreign Affairs,MsM. Janicot, Drafting Officer, Human rights Section, Ministry of Foreign Affairs,Advisers.

The Court heard addresses by Mr Michel, Professor Bianchi, Mr Schürmann, Mr Zellweger, Mr Wright and Mr de Bergues, and their replies to questions from judges.

THE FACTS

  1. THE CIRCUMSTANCES OF THE CASE

    10. The first applicant was born in 1941 and lives in Amman (Jordan). According to the Security Council of the United Nations (UN), he was head of finance for the Iraqi secret services under the regime of Saddam Hussein. The second applicant is a company incorporated under the laws of Panama and having its registered office in Panama, the first applicant being its managing director.

    1. Background to the case

      11. After Iraq invaded Kuwait on 2 August 1990, the UN Security Council adopted Resolution 661 (1990) of 6 August 1990 and Resolution 670 (1990) of 25 September 1990, calling upon UN member States and non‑member States to apply a general embargo against Iraq and on any Kuwaiti resources confiscated by the occupier, together with an embargo on air transport.

      12. On 7 August 1990 the Swiss Federal Council adopted an ordinance providing for economic measures against the Republic of Iraq (the “Iraq Ordinance”; see paragraph 36 below). The applicants alleged that since that date their assets in Switzerland had remained frozen.

      13. On 10 September 2002 Switzerland became a member of the United Nations.

      14. On 22 May 2003 the UN Security Council adopted Resolution 1483 (2003), superseding Resolution 661 (1990), among others (see paragraph 46 below). Paragraph 23 of Resolution 1483 (2003) reads as follows:

      “The Security Council

      ...

      Decides that all Member States in which there are:

      (a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or

      (b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction,

      shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph 22.”[1]

      15. The Iraq Ordinance of 7 August 1990 underwent numerous amendments, in particular on 30 October 2002, following the entry into force of the Federal Law of 22 March 2002 on the application of international sanctions (the Embargo Act, in force since 1 January 2003), and on 28 May 2003, to take account of Resolution 1483 (2003). Article 2 of the Iraq Ordinance provided in substance for the freezing of assets and economic resources belonging to the former Iraqi Government, to senior officials thereof and to companies or bodies under the control or management of that Government or its officials. Pursuant to the Ordinance, any person or organisation holding or managing assets covered by the freezing measure must immediately declare them to the State Secretariat for Economic Affairs (the “SECO”) (see Article 2a § 1 of the Iraq Ordinance, paragraph 36 below).

      16. On 24 November 2003 a sanctions committee created by Security Council Resolution 1518 (2003) (“the 1518 Sanctions Committee”), and consisting of representatives of all members of the Council, was given the task of listing the individuals and entities concerned by paragraph 23 of Resolution 1483 (2003) (see paragraph 46 below). For that purpose, the Committee was to keep up to date the lists of individuals and entities already compiled by the former sanctions committee, created under Resolution...

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