Strasbourg’s Kadi? Al Dulimi v Switzerland

The Kadi cases in the European Court of Justice in Luxembourg famously held (see previous blogs) that European Union measures that implement UN Security Council resolutions must subject to effective judicial review by the European Court for compliance with the fundamental principles of EU law, which include rights of defence, proportionality, the right to be given reasons etc.

Less well known than the Kadi cases is Al-Dulimi and Montana Management v Switzerland in the European Court of Human Rights in Strasbourg. [The ECHR is the Council of Europe’s court, adjudicating on cases between individuals and Member States of the Council of Europe for violations of the European Convention on Human Rights. The ECJ is the European Union’s court, adjudicating on (inter alia) actions for annulment brought by individuals against the EU institutions for breaches of EU law]. The judgment is here, and was handed down on 26 November 2013.

The Strasbourg court in Al-Dulimi reached a similar conclusion to the Court of Justice in Kadi. Mr Al Dulimi (and the company of which he was Managing Director) complained to the European Court of Human Rights that his right of access to court guaranteed by Article 6 of the ECHR had been violated by the Swiss courts’ refusal to adjudicate on the substance of a case he brought in the Swiss courts complaining that his assets had been frozen and confiscated by the Swiss authorities. The position of the Swiss government and courts was that the Swiss courts could not adjudicate because Switzerland had no discretion and had to implement UN Security Council resolution 1483 which froze the assets of those connected with the government of Iraq (including the applicant and his company), and there was nothing the Swiss courts could do.

The Strasbourg court held that this was a disproportionate restriction of Article 6 ECHR, because neither the UN Security Council nor the Swiss courts were providing him with access to effective judicial review, which was essential given the considerable restriction of freezing (since 1990) and confiscating (since 2006) his assets.

The similarity with Kadi is obvious; both international courts have said that the EU and ECHR require judicial review, even where the UN is the source of the sanctions restriction, and in particular where the UN has not itself provided access to a court. The Strasbourg court noted that there was no UN Ombudsperson for the Iraq sanctions list (as there is, as a result of the Kadi case, for the Al Qaida list). §134 “for as long as there is no independent and effective judicial review, at the level of the United Nations, of the legitimacy of adding individuals and entities to the relevant lists, it is essential that such individuals and entities should be authorized to request the review by the national courts of any measure adopted pursuant to the sanctions regime”.

Neither Luxembourg not Strasbourg found this issue easy.  In Luxembourg the lower court (then called the Court of First Instance) had initially said that the European courts could not review measures implementing UN resolutions because that would violate the supremacy of the UN, and therefore the European court could only review measures for their compliance with ‘ius cogens’. The Court of Justice on appeal in both Kadi 1 and Kadi 2 disagreed, and held that all EU measures, even those that implement a UN resolution, must be subject to effective review by the EU courts.  In Strasbourg one judge (Judge Sajo) dissented in part (NB dissenting judgments are not permitted in Luxembourg) on the grounds that the case should have been declared inadmissible, and three (Judges Lorenzen, Raimondi and Jociene) on the grounds that there was no violation of Article 6. All of the dissents are based on the supremacy of the UN in Article 103 of the UN Charter, and the absence of discretion on the part of Switzerland when implementing a binding UN resolution. The dissenters distinguished Kadi on the basis that the EU is not a member of the UN (and the clash of obligations does not therefore directly arise) and Nada v Switzerland (the other recent ECHR sanctions case) because Switzerland had some discretion in implementing the resolution in that case.

Given the importance of the case, it might have been desirable for it to have been decided by the Grand Chamber of the ECHR (Kadi went to the Grand Chamber of the ECHR both times round, as did Nada v Switzerland in Strasbourg), but Switzerland objected to its transfer to the Grand Chamber.