Nada v Switzerland  ECHR 1691 (12 September 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding how states should approach divergent international law obligations.
The applicant, Mr Youseff Moustafa Nada, an Egyptian and Italian national, was born in 1931. Mr Nada had been living since 1970, in Campione d’Italia, which is an Italian enclave of about 1.6 square kilometres in the Province of Como, surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. Entering and departing Campione d’Italia necessitates transit through Switzerland.
Mr Nada described himself as a practising Muslim and a prominent businessman in the financial and political world.
From 1999, as a response to various terrorist attacks the United Nations Security Council passed a number of resolutions providing sanctions against the Taliban and later, al-Qaeda and Osama Bin Laden. A Sanctions Committee was established to monitor and implement these resolutions and its responsibility included maintaining a list of individuals and organisations associated with terrorism (List).
In 2000, the Swiss government adopted an ordinance (Taliban Ordinance) to implement a number of Security Council resolutions, including that individuals on the List not be permitted to enter or transit through Switzerland. The List was annexed to the Taliban Ordinance.
In 2001, Mr Nada and a number of organisations associated with him were added to the Sanctions Committee’s List. The Swiss Canton of Ticino revoked Mr Nada's special border-crossing permit in October 2003. Mr Nada was subsequently told that he was no longer permitted to cross the border and enter Switzerland.
In March 2004, Mr Nada's request for permission to enter and transit through Switzerland for the purpose of obtaining medical treatment and participating in legal proceedings, was denied by Switzerland.
In September 2009, Mr Nada's name was removed from the List and he was again free to enter and transit through Switzerland.
Mr Nada alleged that the ban on entering or transiting through Switzerland, which had been imposed on him as a result of the addition of his name to the list annexed to the Taliban Ordinance, had breached his rights under the European Convention, in particular, his right to liberty (article 5 of the Convention) and his right to respect for private and family life, honour and reputation (article 8).
He submitted that the ban was also tantamount to ill-treatment within the meaning of article 3. He further complained of a breach of his freedom to manifest his religion or beliefs (article 9), arguing that his inability to leave the enclave of Campione d’Italia had prevented him from worshipping at a mosque. Lastly, he complained that there had been no effective remedy in respect of those complaints (article 13).
The court was asked to consider whether there was a hierarchy of international obligations, in particular, whether obligations under the Convention prevailed over Security Council resolutions.
Harmonisation of divergent international law obligations
In determining that article 8 of the Convention had been contravened, the court found that the restrictions imposed on the applicant’s freedom of movement for a considerable period of time did not strike a fair balance between his right to the protection of his private and family life, on the one hand, and the legitimate aims of the prevention of crime and the protection of Switzerland’s national security and public safety, on the other.
The court found that the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health.
Switzerland submitted that it was bound by the Security Council's resolutions and could not, of its own motion, remove Mr Nada from the List annexed to the Taliban Ordinance.
The court expressly declined to determine the question of which obligations prevail, that is, the obligations of a state as a party to the Convention, on the one hand, and those arising from the United Nations Charter, on the other. Rather, the court said that states must harmonise the obligations that they regard as divergent and that in this case, Switzerland had failed to do this.
No effective remedy
According to the court, there has been a contravention of article 13 of the Convention on the basis that under Swiss law, there was no 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.
No deprivation of liberty
The court rejected Mr Nada's assertion that he had been deprived of his liberty in contravention of article 5 of the Convention. While reiterating that article 5 enshrines a fundamental human right against arbitrary interference by the State, the court distinguished Mr Nada's case as involving a mere restriction on liberty of movement, which is governed by article 2 of Protocol No. 4, a protocol not ratified by Switzerland.
No interference with freedom or religion or inhuman or degrading treatment
Mr Nada's complaint that his consequential inability to go a mosque had breached his freedom to manifest his religion or belief as guaranteed by Article 9, was held to be unfounded. Further, the court found no evidence of any torture, inhuman or degrading treatment within the meaning of article 3.
This case provides guidance to countries that face conflicting legal obligations under different instruments of international law.
The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/1691.html
Michael Thomas is a lawyer at Lander & Rogers.