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

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)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano

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.

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 nonmember States to apply a general embargo against Iraq and on any Kuwaiti resources confiscated by the occupier, together with an embargo on air transport.

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.

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

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.”

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).

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 661 (1990), which had been adopted during the armed conflict between Iraq and Kuwait.

On 26 April 2004 the 1518 Sanctions Committee added to the list of individuals and entities, respectively, the second applicant, which had its registered office in Geneva, and the first applicant, who was the managing director of the latter.

On 12 May 2004 the applicants’ names were added to the list of individuals, legal entities, groups and organisations concerned by the national measures under Article 2 of the Iraq Ordinance. On 18 May 2004 the Federal Council also adopted, under Article 184, paragraph 3, of the Federal Constitution, an ordinance on the confiscation of the frozen Iraqi assets and economic resources and their transfer to the Development Fund for Iraq (“the Confiscation Ordinance”; see paragraph 37 below). That Ordinance was initially valid until 30 June 2010 and was then extended until 30 June 2013.

The applicants indicated that a confiscation procedure had been initiated in respect of their assets in Switzerland, which had been frozen since 7 August 1990, by the Federal Department for Economic Affairs, when the Confiscation Ordinance had entered into force on 18 May 2004.

The first applicant, wishing to apply directly to the 1518 Sanctions Committee for the removal of his name from the list, called upon the Federal Department for Economic Affairs, in a letter of 25 August 2004, to suspend the confiscation procedure in respect of his assets. In a letter of 5 November 2004 to the Chair of the Committee, the Swiss Government, through their Permanent Representative to the United Nations, supported that application. In a letter of 3 December 2004 the Chair informed the applicants that the Sanctions Committee had received their application and that it was under consideration. He asked them to send supporting documents and any additional information that might substantiate the application.

The first applicant replied in a letter of 21 January 2005 that he wished to give oral evidence to the Sanctions Committee. As no action was taken on the request, the applicants, in a letter of 1 September 2005, sought the continuation of the confiscation procedure in Switzerland.

On 22 May 2006 the Federal Department for Economic Affairs sent the applicants a draft decision on the confiscation and transfer of the funds that were deposited in their names in Geneva. In observations of 22 June 2006 the applicants challenged that decision.

In three decisions of 16 November 2006 the Federal Department for Economic Affairs ordered the confiscation of the following assets:

(a) the sum of 86,276.85 Swiss francs (CHF) belonging to the first applicant, representing the liquidation dividend of a company (not the second applicant) of which he had been the sole shareholder, and deposited in the “client” account of a Swiss law firm which represented him;

(b) a total of CHF 164,731,213 deposited in the applicant company’s name with bank X;

(c) a total of CHF 104,739,882.57 deposited in the applicant company’s name with bank Y.

The Federal Department for Economic Affairs stated the conditions in which the sums would be transferred, within ninety days from the entry into force of the decisions, to the bank account of the Development Fund for Iraq. In support of its decisions, it observed that the applicants’ names appeared on the lists of individuals and entities drawn up by the Sanctions Committee, that Switzerland was bound by the resolutions of the Security Council and that it could only delete a name from the annex to the Iraq Ordinance where the relevant decision had been taken by the Sanctions Committee. The Federal Department further observed that the applicants had discontinued their discussions with the Sanctions Committee. It indicated that an administrative-law appeal could be lodged with the Federal Court against its decisions.

On 19 December 2006 the Security Council, being committed to ensuring that fair and clear procedures existed for placing individuals and entities on sanctions lists, including those of the 1518 Sanctions Committee, and for removing their names, as well as for granting humanitarian exemptions, adopted Resolution 1730 (2006), which created a delisting procedure (see paragraph 48 below).

The applicants lodged separate administrative-law appeals with the Federal Court against each of the Federal Department’s three decisions of 16 November 2006, seeking their annulment. In support of their submissions, they argued that the confiscation of their assets breached the property right guaranteed by Article 26 of the Federal Constitution and that the procedure leading to the addition of their names to the lists provided for by Resolution 1483 (2003) and annexed to the Iraq Ordinance had breached the basic procedural safeguards enshrined in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) of 16 December 1966, in Articles 6 and 13 of the Convention and in Articles 29 to 32 of the Federal Constitution. The applicants took the view that the Federal Court, and before that the Federal Department for Economic Affairs, had jurisdiction to review the legality and the conformity with the Convention and the ICCPR of the 1518 Sanctions Committee’s decision to add their names to the list provided for in paragraph 23 (b) of Resolution 1483 (2003). They submitted that there was no incompatibility or conflict between the obligations under the Charter and the rights guaranteed by the Convention or the ICCPR.

On 10 December 2007 the applicants filed additional observations limited to an assessment of the impact of a judgment of the Federal Court dated 14 November 2007 (in the case which ultimately led to the Nada v. Switzerland judgment ([GC], no. 10593/08, ECHR 2012)) on the merits of their own appeals. They further sought the opportunity to present oral argument on that point. A copy of these observations was sent to the Federal Department for Economic Affairs for information purposes.

On 18 January 2008 the applicants wrote to the Federal Court drawing its attention to the opinion delivered on 16 January 2008 by the Advocate General in the case of Yassin Abdullah Kadi, then pending before the Court of Justice of the European Communities (“the CJEC”, which on 1 December 2009 became known as the Court of Justice of the European Union, “the CJEU”), and reiterating their request of 10 December 2007 to present oral argument.

In three almost identical judgments, the Federal Court dismissed the appeals, confining itself to verifying that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets concerned belonged to them. The relevant parts of those judgments read as follows (unless otherwise stated, this is the text of the judgment concerning the first applicant):

“5.1 On 10 September 2002 Switzerland became a member of the United Nations and ratified the United Nations Charter of 26 June 1945 (the Charter; RS 0.120). Article 24, paragraph 1, of the Charter provides that, in order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Under Article 25 of the Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter. The binding nature of Security Council decisions concerning measures taken in accordance with Articles 39, 41 and 42 to maintain or restore international peace and security also stems from Article 48, paragraph 2, of the Charter, which provides that such decisions must be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The mandatory effect of Security Council decisions is the basis for the similar effect of decisions taken by subsidiary organs such as the sanctions committees (see Eric Suy and Nicolas Angelet in Jean-Pierre Cot, Alain Pellet and Mathias Forteau, La Charte des Nations Unies, commentaire article par article, 3rd edition, Economica 2005, Article 25, pp. 915 et seq.).

5.2 It was under Chapter VII (Articles 39 to 51) of the Charter that the Security Council adopted Resolution 1483 (2003): having regard to the situation in Iraq, the Security Council considered that it had to take measures ‘to maintain or restore international peace and security’. Those measures included, in particular, the decisions stated in paragraphs 19 and 23 of the Resolution: in particular, the Security Council decided that member States were required to freeze and transfer to the Development Fund for Iraq the assets described in paragraph 23 of the Resolution. It also decided that the 1518 Sanctions Committee would have the task of identifying the individuals and entities referred to in paragraph 23.

5.3 At the outset, the 1518 Sanctions Committee published a set of guidelines for the application of paragraphs 19 and 23 of Resolution 1483 (2003) (see http://www.un.org/french/sc/committees/1518/indexshtml); they described the manner in which the lists of individuals and entities would be drawn up and disseminated. In that document the Committee requests as follows: ‘The names of individuals and entities proposed for identification should be accompanied by, to the extent possible, a narrative description of the information that forms the basis or justification for taking action pursuant to resolution 1483 (2003)’. The procedure is then described in the following terms. The Committee will reach decisions by consensus. If consensus cannot be reached, the Chairman should undertake such further consultations as may facilitate agreement. If after these consultations, consensus still cannot be reached, the matter may be submitted to the Security Council. Given the specific nature of the information, the Chairman may encourage bilateral exchanges between interested member States in order to clarify the issue prior to a decision. Where the Committee agrees, decisions may be taken by a written procedure. In such cases, the Chairman will circulate to all members of the Committee the proposed decision of the Committee, under the ‘no-objection’ procedure within three working days. If no objection is received within such a period, the decision will be deemed adopted.

5.4 Company S. SA and [the first applicant] appear on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ... for the company and ... for the latter, on the ground that its managing director is [the first applicant], the head of finance, at the time, of the Iraqi secret services, who also controls the companies H., K. SA and M. [the second applicant], three entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).”

The two judgments concerning the second applicant:

“5.4 The [second applicant] appears on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ..., on the ground that its managing director is [the first applicant], who also controls H. and K. SA, two entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).”

The judgment concerning the first applicant (continued):

“6.1 Since 28 November 1974 Switzerland has been a Contracting Party to the European Convention on Human Rights. However, even though it signed, on 19 May 1976, the additional Protocol No. 1 of 20 March 1952, which guarantees in particular the protection of property (Article 1), it has not ratified it to date. That Protocol has not therefore entered into force in respect of Switzerland. Consequently, in Switzerland, the protection of property is guaranteed by the Federal Constitution alone (Article 26).

Under Article 1 ECHR, the High Contracting Parties undertake to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention (Articles 2 to 18 ECHR). Article 6 § 1 ECHR, in particular, grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of an individual’s civil rights and obligations or of any criminal charge against him or her. Under Article 13 ECHR, everyone whose rights and freedoms as set forth in the Convention are violated is entitled to an effective remedy before a national authority.

6.4 Even though he relies on the guarantee of the protection of property and points out that restrictions on property are possible only under the conditions laid down in Article 36 of the Constitution, the appellant is in reality only complaining of a breach of procedural safeguards and not of a violation of Articles 26 and 36 of the Constitution. He observes that restrictions on the enjoyment of his possessions, such as the confiscation of his property, can be ordered only after due process under domestic law, including a substantive examination of the legal conditions for such restriction, while ensuring the observance of fundamental rights, basic procedural safeguards, and defence rights, or the right to be heard, and in compliance with the requirement to state reasons, the prohibition of any denial of justice, and the equality of arms and adversarial principles (see appellant’s observations, ch. 76-80). He complains that the reasons for his inclusion on the list of the 1518 Sanctions Committee were never brought to his knowledge and that he was not able to comment on them or defend himself in adversarial proceedings before an independent and impartial judicial body, this not being disputed – quite rightly – by the Department for Economic Affairs in the light of the listing procedure (see above, point 4.3).

In this connection, the appellant is of the opinion that Switzerland is required to apply Resolution 1483 (2003), but also the provisions of the European Convention on Human Rights and those of the International Covenant on Civil and Political Rights concerning procedural safeguards; he argues that there is no contradiction between those various obligations, and that for this reason the decision appealed against should be quashed and the matter referred back for fresh confiscation proceedings before the Swiss courts, which would examine the merits of the measure in compliance with basic procedural safeguards.

It is therefore appropriate to examine the procedural safeguards that Switzerland is required to comply with, having regard to its obligations under the Charter and Resolution 1483 (2003), in the proceedings initiated by the Federal Department for Economic Affairs leading to the confiscation of the appellant’s assets.

7.1 Pursuant to Article 5 paragraph 4, of the Constitution, the Confederation and the Cantons comply with international law. Under Article 190 of the Constitution, the Federal Court and the other authorities are required to apply federal laws and international law. International law, within the meaning of Article 190 of the Constitution, is defined by jurisprudence as the entire body of international law that is binding on Switzerland, comprising international agreements, customary international law, the general rules of the law of nations and the decisions of international organisations that have mandatory effect in Switzerland. Accordingly, the Federal Court is in principle required to comply with the provisions of the Charter, United Nations Security Council resolutions, the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

7.2 Article 190 of the Constitution does not, however, provide for any rule of conflict between the various norms of international law that are equally binding on Switzerland. However, under Article 103 of the Charter, in the event of a conflict between the obligations of the members of the United Nations under the Charter and their obligations under any other international agreement, their Charter obligations prevail. This primacy is also enshrined in Article 30 § 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (‘VCLT’; RS 0.111; entered into force in respect of Switzerland on 6 June 1990).

According to legal opinion and case-law, this is an absolute and general primacy which applies regardless of the nature of the treaty which is in conflict with the Charter, whether it is bilateral or multilateral, or whether the treaty entered into force before or after the entry into force of the Charter. The primacy is granted not only to the obligations expressly laid down in the Charter, but also, according to the International Court of Justice, to those that stem from binding decisions of United Nations organs, in particular the binding decisions taken by the Security Council pursuant to Article 25 of the Charter (see the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, ICJ Reports 1992, p. 15, paragraph 39; see also Felipe Paolillo in Les conventions de Vienne sur le droit des traités, commentaire article par article, Olivier Corten and Pierre Klein (eds.), Bruylant, Brussels 2006, no. 33 on Article 30 VCLT and the numerous references cited). This primacy does not render null and void the treaty which is in conflict with the Charter obligations, but merely suspends the treaty for as long as the conflict remains (see Eric Suy in Les conventions de Vienne sur le droit des traités, op. cit., no. 15 on Article 53 VCLT and the references cited).

Moreover, neither the European Convention on Human Rights nor the International Covenant on Civil and Political Rights contains clauses which would, in themselves or by virtue of another treaty, prevail over the conflict clause that is enshrined in both Article 103 of the Charter and Article 30 § 1 VCLT.

Article 46 ICCPR certainly provides that ‘[n]othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant’. However, according to legal opinion, this provision simply means that the International Covenant on Civil and Political Rights cannot hinder the task of the political organs and specialised agencies which have been entrusted under the Charter with duties relating to human rights (see Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, no. 3, on Article 46 ICCPR, p. 798). It does not therefore establish any hierarchy between the decisions of the Security Council and the rights guaranteed by the ICCPR – the United Nations as such is not a party to the latter in any event. It cannot be concluded that the International Covenant on Civil and Political Rights prevails over Charter obligations.

7.3 Consequently, in the event of any conflict between Switzerland’s obligations under the Charter and those deriving from the European Convention on Human Rights or the International Covenant on Civil and Political Rights, the Charter obligations in principle prevail over the latter, as the appellant has not in fact denied. He takes the view, however, that this principle is not absolute. In his opinion, the obligations arising from the Charter, in particular those imposed by Resolution 1483 (2003), lose their binding character if they contravene the rules of jus cogens.

The appellant argues that the procedural safeguards under Article 14 ICCPR and Article 6 ECHR constitute jus cogens norms. He submits that, in breaching those safeguards, Resolution 1483 (2003) should lose its binding effect.

8.1 Under the heading ‘Treaties conflicting with a peremptory norm of general international law (jus cogens)’, Article 53 VCLT provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, that is, a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Moreover, Article 64 VCLT provides that, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Article 71 VCLT governs the consequences of the invalidity of a treaty in such cases.

8.2 Article 53 VCLT does not contain any examples of peremptory norms of general international law (Report of the International Law Commission, Commentary on Art. 50, ILC Yearbook 1966 II, pp. 269 et seq.). The words ‘by the international community of States as a whole’ do not mean that a norm must be accepted and recognised as peremptory by States unanimously. A significant majority is sufficient. By way of example, the norms concerning the prohibition of the use of force, slavery, genocide, piracy, unequal treaties and racial discrimination are generally cited (see Eric Suy, op. cit., no. 12 on Article 53 VCLT, p. 1912; Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international public, 7th edition, LGDJ 2002, no. 127, pp. 205 et seq.; and Joe Verhoeven, Droit international public, Larcier 2000, pp. 341 et seq.).

This list of examples does not include the rights deriving from Article 14 ICCPR and Article 6 ECHR, which are relied upon by the appellant. Their mere recognition by the International Covenant on Civil and Political Rights and the European Convention on Human Rights does not go so far as making them peremptory norms of general international law. It transpires, moreover, from the preparatory work in respect of Article 53 VCLT and the wording of that provision that in principle there can be no regional jus cogens norms (see Eric Suy, op. cit., no. 9 on Article 53 VCLT, p. 1910; this is a controversial matter in legal opinion, see inter alia: Eva Kornicker, Ius cogens und Umweltvölkerrecht, Thesis Basle 1997, pp. 62 et seq. and the numerous references cited therein).

8.3 It is true that, in the event of a public emergency which threatens the life of the nation, Article 4, paragraphs 1 and 2, ICCPR authorises, under certain conditions, measures that derogate from the obligations under the Covenant, except for those deriving from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 (right to life, prohibition of torture, prohibition of slavery, prohibition of imprisonment on the ground of inability to fulfil a contractual obligation, prohibition of retrospective criminal legislation, recognition of legal personality, freedom of thought, conscience and religion). Article 15, paragraphs 1 and 2, ECHR also contain a public emergency clause permitting derogation from Convention obligations, similarly excluding any derogation from Articles 2, 3, 4 (paragraph 1) and 7 (right to life, prohibition of torture, prohibition of slavery, no punishment without law). Some authors take the view that the rights and prohibitions listed in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR correspond to the core human rights and could therefore be regarded as peremptory norms of general international law (see Stefan Oeter, ‘Ius cogens und der Schutz der Menschenrechte’, in Liber amicorum Luzius Wildhaber 2007, pp. 499 et seq. and pp. 507 et seq.); for other authors the provisions merely point in that direction (see Eva Kornicker, op. cit., pp. 58 et seq.). The latter opinion seems to correspond to that of the (former) Commission on Human Rights [recte: Human Rights Committee], which found that the list of non-derogable rights in Article 4, paragraph 2, ICCPR might admittedly be related to, but not identical with, the question whether certain human rights corresponded to peremptory norms of general international law (General Comments 29/72 of 24 July 2001 under Article 40, paragraph 4, ICCPR, ch. 11, in Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, pp. 1145 et seq. at 1149). In the present case it is not necessary to settle this question in so far as Article 14 ICCPR and Article 6 ECHR do not, in any event, appear in the lists given in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR.

8.4 Consequently, contrary to what the appellant has claimed, neither the fundamental procedural safeguards, nor the right to an effective remedy, under Articles 6 and 13 ECHR and Article 14 ICCPR, have per se the nature of peremptory norms of general international law (jus cogens), in particular in the context of the confiscation procedure affecting the appellant’s property (see, to the same effect, the judgment of the Swiss Federal Court no. 1A.45/2007 of 14 November 2007 in the case of Nada v. DFE, point 7.3; judgment of the Court of First Instance of the European Communities, 21 September 2005, Yusuf and Al Barakaat International Foundation v. Council and Commission, T-306/01 Reports 2005 II, p. 3533, paragraphs 307 and 341; judgment of the Court of First Instance of the European Communities, 21 September 2005, Kadi v. Council and Commission, T-315/01 Reports 2005 II p. 3649, paragraphs 268 and 286; judgment of the Court of First Instance of the European Communities, 12 July 2006, Ayadi v. Council, T-253/02 Reports 2006 II p. 2139, paragraph 116; judgment of the Court of First Instance of the European Communities, 12 July 2006, Hassan v. Council and Commission, T-49/04 Reports 2006 II p. 52, paragraph 92).

As to the rights guaranteed by Articles 29 et seq. of the Constitution, this is a matter of domestic law which cannot constitute jus cogens or hinder the implementation by Switzerland of Resolution 1483 (2003).

According to the appellant, Switzerland should have sufficient latitude, even in the light of its obligations vis-à-vis the Security Council, to fulfil its duties under Article 14 ICCPR and Article 6 ECHR. In his view it is necessary to distinguish between the question of the deletion of his name from the list of the 1518 Sanctions Committee and that of the confiscation of the frozen assets: the question of confiscation could be dealt with in fair proceedings without contravening the Charter obligations.

9.1 That opinion cannot be upheld. The description of the measures (freezing of funds or other financial assets, immediate transfer thereof to the Development Fund for Iraq), of the individuals and entities concerned (previous Iraqi government, 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), and of the mandate given to the 1518 Sanctions Committee (to enumerate the individuals and entities mentioned in paragraph 23), is detailed and leaves no room for interpretation. Similarly, the list of individuals and entities drawn up by the 1518 Sanctions Committee is not indicative in nature. It is not a matter of deciding whether the appellant’s name should be, or is legitimately, included on that list; it is simply a question of observing that his name does appear on the list in question, which must be transposed into Swiss domestic law. In asserting that it should be possible to deal separately with the question of the confiscation of his assets, the appellant overlooks the fact that the measures imposed on member States include the immediate transfer of the frozen assets to the Development Fund for Iraq. This order does not call for any interpretation, nor does it grant any latitude in the result that it requires of member States as to the treatment of the frozen assets of persons who, like the appellant, are included in particular on the list of the 1518 Sanctions Committee. Being clearly ascertained, those assets must be transferred to the Development Fund for Iraq. From that perspective, the present case differs from a case examined by the Court of First Instance of the European Communities, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union. It concerned Resolution 1373 (2001) of 28 September 2001 laying down strategies to combat terrorism, which required the member States of the United Nations – in that case the European Community – to identify individuals, groups and entities whose funds had to be frozen, because the Resolution itself did not provide any list of the latter. The Court of First Instance found that procedural safeguards had to be observed in the keeping of such a list (judgment of the Court of First Instance of the European Communities, 12 December 2006, Organisation des Modjahedines du peuple d’Iran v. Council, T-228/02, not yet reported).

9.2 In those circumstances, contrary to what the appellant has claimed, the implementation of Resolution 1483 (2003) requires Switzerland to adhere strictly to the measures introduced and to the decisions of the 1518 Sanctions Committee, which, unless found by the Security Council to be in breach of jus cogens norms, does not leave any room, even on the grounds of ensuring the procedural safeguards provided for in the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the Swiss Constitution, for an examination of the procedure by which the appellant’s name was added to the list issued by the 1518 Sanctions Committee, or for verification of the justification for such addition.

The appellant further argued that Article 4 of the Confiscation Ordinance granted the Federal Court full jurisdiction to deal with the various aspects of the matter, enabling it to find that the authority below had failed to ascertain the merits of the confiscation of his assets or, in other words, that the authority had wrongly accepted their confiscation solely on the basis that his name appeared on the list annexed to Resolution 1483 (2003), without remedying the breach of his procedural rights under, inter alia, Articles 29 et seq. of the Constitution.

10.1 According to the foregoing considerations, Article 4 of the Confiscation Ordinance cannot authorise the Federal Court, any more than the authority below, to verify whether the appellant’s inclusion on the list issued by the 1518 Sanctions Committee complied with the procedural safeguards of Article 14 ICCPR, Article 6 ECHR and Article 29 et seq. of the Constitution. With the exception of an examination of a possible breach of jus cogens norms, as shown above, Switzerland is thus not authorised to scrutinise the validity of Security Council decisions, and in particular that of Resolution 1483 (2003), not even in terms of compliance with procedural safeguards, or to provide redress for any defects in such decisions. For that could have the effect of depriving Article 25 of the Charter of any effectiveness, as would be the case if the appellant’s frozen assets were not confiscated and transferred to the Development Fund for Iraq (see Eric Suy and Nicolas Angelet in La Charte des Nations Unies, Commentaire article par article, Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), 3rd edition, Economica 2003, Art. 25, p. 917).

10.2. However, with that reservation, Switzerland is free to choose how it transposes into domestic law the obligations arising from Resolution 1483 (2003) and the arrangements for transferring the frozen assets. The Federal Council has made use of this discretion in distinguishing between the measures introduced for the freezing of the assets and those governing the transfer of frozen assets. The Federal Department, for its part, suspended the confiscation procedure at the request of the appellant, who sought to have the matter examined by the Sanctions Committee, and resumed it only upon his express application. With the same reservation, the Federal Council was entitled to guarantee the right of the frozen asset-holders to be heard before the confiscation decision was taken. It was also entitled to make available an administrative-law appeal against such decisions.

In the present case, the appellant made full use of his right to be heard because he obtained access to the file of the Federal Department for Economic Affairs, or at least to the relevant bank documents, and had the opportunity to express himself before that authority. He also fully availed himself of the right provided for in Article 4 of the Confiscation Ordinance by lodging the present administrative appeal. As to that matter, falling as it does within the jurisdiction of Switzerland, it should be noted that the applicant has not submitted any complaint of a violation of Articles 26 and 36 of the Constitution in respect of the confiscation procedure (see point 5.4).

In a further complaint, lastly, the appellant contended that the refusal to annul the decision of the Federal Department for Economic Affairs of 16 November 2006 for a breach of procedural safeguards ran counter to the position defended on many occasions by Switzerland, the Federal Council or the Federal Department for Foreign Affairs, asserting an intangible principle of respect for human rights. He argued that this was an ‘indivisible’ position in relation to other Nations which had been disregarded by the decision of the Federal Department for Economic Affairs of 16 November 2006.

10.3 The appellant seems to be unaware of the meaning that should be given to indivisibility (in the area) of human rights. According to legal opinion, the principle of indivisibility of human rights means that States cannot choose between human rights in order to give priority to some over others. The aim of this principle is to prevent governments from claiming to defend human rights by choosing from the list, as they see fit, those they accept and those they ignore (see Françoise Bouchet-Saulnier, Droits de l’homme, droit humanitaire et justice internationale, Actes Sud 2002, pp. 23 and 27 et seq.).

10.4 In the present case, to the extent that his position can be understood, the appellant is complaining more about Switzerland’s attitude, which he regards as contradictory. This opinion disregards the fact that the positive legal order, as set out above, is mandatory under Article 190 of the Constitution for reasons of legal certainty. Switzerland cannot, by itself, delete the appellant’s name from the list drawn up by the Sanctions Committee, which has sole competence for that purpose, even if the procedure for that purpose is not fully satisfactory (see judgment 1A.45/2007 of 14 November 2007, point 8.3). Moreover, it is not contradictory for the federal authorities to find the system deficient and yet, as in the present case, to advocate and act on a political level in favour of intangible respect for human rights, especially in relation to the listing and delisting procedures applied by the 1518 Sanctions Committee. Switzerland’s conduct does not therefore breach Articles 26 and 29 et seq. of the Constitution, Articles 6 and 13 ECHR or Article 14 ICCPR, under that head either.

The appeal must accordingly be dismissed. The Federal Court finds, however, that, in the context of Switzerland’s power and freedom of implementation (see point 10.2), the authority below should grant the appellant a brief and final period of time, before implementing the decision of 16 November 2006 – which enters into force with the dismissal of the present appeal – to allow him to apply, should he so wish, to the 1518 Sanctions Committee for a new delisting procedure in accordance with the improved arrangements of Resolution 1730 (2006) of 19 December 2006, the appellant not having had the opportunity to make use of the latter because he wrongly placed all his hopes in the present administrative-law appeal.

The appeal is thus dismissed for the foregoing reasons ...”

On 13 June 2008 the applicants lodged a delisting application in accordance with the procedure introduced by Resolution 1730 (2006). The application was rejected on 6 January 2009.

In a favourable opinion issued by the SECO on 26 September 2008, the applicants were informed that they would be authorised to make use of the assets frozen in Switzerland to pay the fees charged by a lawyer in the United States, that lawyer’s activities being confined to their defence in connection with the Swiss confiscation procedure and the delisting procedure. Since 2007, on four occasions (the last being on 26 February 2009), the SECO, on the basis of Article 2, paragraph 3, of the Iraq Ordinance, granted the applicants’ requests and authorised the release of certain sums for the payment of lawyer’s fees in respect of the confiscation decisions. According to the information provided by the Swiss Government and not denied by the applicants, the SECO has released about CHF 850,000 in respect of lawyers’ fees and over CHF 200,000 in respect of court costs.

On 6 March 2009 the Swiss authorities stayed the execution of the confiscation decisions pending the judgment of the European Court of Human Rights, and that of the Federal Court on an application to reopen the domestic proceedings if the Court were to find a violation of the Convention.

In its Resolution 1956 (2010) of 15 December 2010 the Security Council decided to terminate the Development Fund for Iraq no later than 30 June 2011 and to transfer the proceeds from that Fund to the Government of Iraq’s “successor arrangements account or accounts”. The Sanctions Committee set up under Resolution 1518 (2003) continued to operate.

On 20 December 2013 the Federal Department for Economic Affairs issued two other confiscation decisions in respect of assets in the name of the first applicant that were frozen in two banks, to be paid into the successor funds of the Iraqi Government. Referring to the Federal Council’s decision of 6 March 2009 (paragraph 32 above), the Department decided that the assets concerned would remain frozen and would be transferred to the funds in question only if and when the present application was rejected by the European Court of Human Rights, “or when the confiscation decisions of 16 November 2006 ... were confirmed by the Federal Court in the event of review”. An appeal was lodged against those decisions before the Federal Administrative Court which, on 7 May 2014, suspended the proceedings pending the judgment of the Grand Chamber of the European Court of Human Rights.


André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant, Mr Georgijs Soročinskis, is a Latvian national who was born in 1938 and lives in Rīga. He was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and subsequently by Ms K. Līce.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 November 1998 the applicant requested a retirement pension. At that time the applicant had the status of “permanently resident noncitizen” of Latvia; thus, in accordance with paragraph 1 of the transitional provisions of the Law on State Pensions, the periods that he had spent in employment outside the territory of Latvia were not taken into account. Furthermore – under paragraph 13 of the transitional provisions of the Law on State Pensions – in view of the fact that the applicant had worked in Latvia for less than thirty years, his own average monthly “insurance wage” (that is to say the income in relation to which the insurance was paid) instead of the “average monthly insurance wage in the State” (that is to say the average monthly insurance wage of all insured persons in any given calendar year) was taken into account for the purpose of calculating his pension. Accordingly, his monthly pension was set at 9.96 Latvian lats (LVL – approximately 14 euros (EUR)). As this sum was lower than the minimum pension set by the Cabinet of Ministers, the applicant in fact received LVL 31 (approximately EUR 43).

On 11 June 1999 an agreement between Latvia and Ukraine on cooperation in the field of social security entered into force, and on 17 June 1999 the applicant applied for a recalculation of his pension to take into account the periods during which he had worked in Ukraine. On 9 February 2000, on the basis of having acquired citizenship of Latvia, the applicant applied for a further recalculation to take account of the remaining periods during which he had worked abroad. The State Social Insurance Agency took into account the periods during which the applicant had worked abroad when determining his aggregate insurance period (for a definition of “insurance period” see paragraph 16 below) as being forty years and twenty-three days; however, as the employment periods accumulated in Latvia had not increased, his own average monthly insurance wage (and not the average monthly insurance wage in the State) was again taken into account in the calculation of his pension. Even with those additions, the applicant’s pension was still below the level of the minimum pension, as set by the Cabinet of Ministers. Thus, after the formal recalculation of his pension, the pension the applicant actually received did not increase. On 1 January 2002, in accordance with amendments to the Law on State Pensions, the applicant’s pension was raised to LVL 45.00 (approximately EUR 62), which was the minimum pension for persons whose insurance period exceeded thirty years.

The applicant continued working, and on 2 July 2003 he applied for yet another recalculation of his pension. On 11 September 2003 the State Social Insurance Agency recalculated the applicant’s pension on the basis of the insurance contributions he had made following his retirement. It took the additional time period worked into account in determining the applicant’s aggregate insurance period. However, as the period the applicant had been employed in Latvia still did not reach thirty years, the average monthly insurance wage in the State was not taken into account in the calculation of his pension. Thus, for a total employment period of forty-one years eleven months and twenty-eight days the applicant’s pension was set at LVL 25.09 (approximately EUR 34) per month. Therefore, the applicant continued receiving the minimum pension for persons whose insurance period exceeded thirty years, which by then had been raised to LVL 46.04 (approximately EUR 63).

As the applicant continued working, his aggregate insurance period reached forty-two years ten months and twenty-eight days. As of 1 August 2016 his monthly pension was raised to EUR 190.12, with an additional supplement of EUR 37.85.

The applicant challenged the decision of the State Social Insurance Agency of 11 September 2003 before the administrative courts, complaining that following the entry into force of the agreement between Latvia and Ukraine on cooperation in the field of social security and after he had acquired Latvian citizenship his pension had not increased. He also noted that all the circumstances forming the basis of his complaint had been set out in his initial application of 2 July 2003. Invoking paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions (see paragraphs 17-18 below) he requested that his pension be recalculated by taking into account the time he had worked in Ukraine.

On 25 February 2005 the Administrative District Court dismissed the applicant’s complaint. Having found that the crux of the applicant’s complaint was the alleged failure to take into account the periods he had worked in Ukraine, the court reassessed the decision of the State Social Insurance Agency and concluded that his pension had been calculated correctly.

The applicant appealed against this decision, stating that all the circumstances forming the basis of his complaint had been outlined in his initial application. The applicant invoked paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions. On 29 June 2006 the Administrative Regional Court dismissed the applicant’s appeal. The applicant lodged an appeal on points of law on the same grounds.

On 15 December 2006 the Senate of the Supreme Court set aside the judgment of the Administrative Regional Court on the grounds that the court had not obtained and reviewed the applicant’s initial application of 2 July 2003 to the State Social Insurance Agency. As a result, the court had not been able to clarify the exact scope of the applicant’s complaint.

On 22 May 2007 the Administrative Regional Court examined the applicant’s complaint in oral proceedings. During his oral submissions the applicant emphasised that he requested that his pension be recalculated on the basis of the average salary in the country. His total employment period was forty-two years, whereas the Law on State Pensions required the insurance period to be no less than thirty years in order for the average monthly insurance wage in the State to be used in the calculation. Despite the fact he had worked for forty-two years, only seventeen years had been taken into account. The applicant concluded by stating: “If you are a citizen then everything is taken into account in the calculation, but if you are not then it is not.” The respondent (that is to say the State Social Insurance Agency) then requested the applicant to clarify the scope of the complaint, to which he replied: “I request the pension to be recalculated on the basis of the average salary in the country.”

On 14 June 2007 the Administrative Regional Court dismissed the applicant’s complaint. It observed that in his initial application of 2 July 2003 the applicant had requested that his pension be recalculated in accordance with general rules. It furthermore noted that the periods he had worked in Ukraine had been taken into account already since the agreement between Latvia and Ukraine on cooperation in the field of social security had entered in force. Furthermore, following the applicant’s acquisition of Latvian citizenship the periods he had worked in Russia and had spent in military service had also been taken into account. The decision that was being challenged concerned the increase in the applicant’s insurance period. Thus, the entirety of his insurance period of forty-one years eleven months and twenty-eight days had been taken into account in the calculation of his pension. In addition, the applicant was receiving the minimum State pension in the amount set for persons whose insurance period was above thirty years. With regard to paragraph 13 of the transitional provisions of the Law on State Pensions the court noted that the applicant’s pension had been calculated correctly, but in relation to paragraph 33 it observed that this provision was not applicable to the applicant owing to its temporal limitation.

In his appeal on points of law the applicant again reiterated that all the circumstances that formed the basis of his claim had been set out in the initial application. He also stated that his pension had not been recalculated on the basis of the amendments to the Law on State Pensions that had entered into force on 1 January 2002. These changes applied to persons whose insurance period was above thirty years, whereas his insurance period amounted to more than forty years. Despite that, his own salary (instead of the average salary in the country) had been taken into account when calculating the level of the pension to which he had been entitled. The applicant referred to paragraphs 13 and 33 of the transitional provisions of the Law on State Pensions, as well as to procedural provisions of the Administrative Procedure Law.

On 29 August 2007 the Senate of the Supreme Court rejected the applicant’s appeal on points of law, noting that it contained no arguments as to how the judgment of the Administrative Regional Court had contravened the legal provisions he had referred to.

The Law on State Pensions, which entered into force on 1 January 1996, provides that one of the components to be taken into account in the calculation and allocation of pensions is the “insurance period”. Under section 1 of the Law on State Pensions, the insurance period is the period of time over which an insured person has made social insurance contributions or such contributions have been made or should have been made on that person’s behalf. With regard to the time period prior to 1 January 1991 (when the social insurance system had not yet been established), paragraph 1 of the transitional provisions of the Law on State Pensions, as in force at time when it was applied to the applicant, provided:

“1. In the case of Latvian citizens, repatriated persons, and their family members and their descendants, periods of employment and periods treated as equivalent to employment that have been accrued within or outside Latvia prior to 1 January 1991 shall count towards the insurance period, which is necessary for the allocation ([or] recalculation) of the State pension, irrespective of [any prior] payment of social insurance contributions. In the case of foreign nationals and stateless persons who were resident in Latvia on 1 January 1991, the insurance period shall be composed of periods of employment and periods treated as equivalent to employment that have been accrued within Latvia, as well as periods treated as equivalent to employment that have been accrued outside Latvia in the cases specified in sub-paragraphs (4), (5) and (10) of this paragraph. The following periods, which are treated as equivalent to employment accrued up to 1 January 1991 ... shall be considered as counting towards the insurance period to be taken into account in calculating the pension:

(4) periods of study at higher-education institutions, and at other training institutions at post-secondary level;

(5) periods of doctoral study, ... postgraduate education or ongoing vocational training;

(10) time spent in places of detention by victims of political persecution ... [or] in exile, and time spent escaping from such places, those periods to be multiplied by three, or by five in the case of time spent in the [Soviet] Far North and regions treated as equivalent. ...”

Under paragraph 13 of the transitional provisions of the Law on State Pensions, with respect to the transitional period, another component that is taken into account in the calculation of the pension is the person’s average monthly insurance wage within a specified time period. Thus, with respect to persons who retired in 1998, that person’s average monthly insurance wage over twenty-four months from 1996 until 1998 was taken into account. If, however, (i) the person’s insurance period in Latvia was not less than thirty years (save for politically persecuted persons, in relation to whom a different methodology applied) and if the person’s average monthly insurance wage for the last twenty-four months was below the average monthly insurance wage in the State in 1997, or (ii) the person had been officially unemployed, the average monthly insurance wage in the State in 1997 was taken into account in the calculation of his or her pension.

On 1 January 2002 the transitional provisions of the Law on State Pensions were supplemented by paragraph 33, which provides that in calculating the pension payable to a person whose insurance period is not less than thirty years and whose average monthly insurance wage, as calculated in accordance with paragraph 13 of these transitional provisions, is lower than the average monthly insurance wage in the State in the period between 1 January 1996 and 31 December 1999, the average monthly insurance wage in the State over the said forty-eight months should be taken into account. The retrospective application of this provision is limited to pensions that were granted after 1 January 2000.

The Government submitted a letter of 7 September 2016 from the Ministry of Welfare, the relevant part of which stated:

““The favourable model of calculating a person’s pension” enshrined in paragraph 13 of the transitional provision of the Law would not be applied to a Latvian citizen in the following situations:

1) In January 1998 a Latvian citizen requests a retirement pension for a total insurance period of 32 years, of which 9 years are [accrued] in Latvia but 23 years [are accrued] in Georgia. The pension is calculated for 32 years but the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period in Latvia is below 30 years;

2) In January 2016 a Latvian citizen requests a retirement pension for a total insurance period of 40 years, of which 24 years are [accrued] in Latvia but 16 years [are accrued] in Estonia. In accordance with the legislation, Latvia grants and pays the retirement pension only for the 24 years [accrued] in Latvia; accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years;

3) In January 2012 a Latvian citizen requests a retirement pension for a total insurance period of 38 years, of which 25 years are [accrued] in Latvia but 13 years [are accrued] in Belarus. In accordance with the Agreement between the Republic of Latvia and Belarus on the cooperation in the field of social security, Latvia grants the retirement pension only for the insurance period accrued in Latvia – the 25 years. Accordingly, the average monthly insurance wage in the State is not taken into account in the calculation of the initial capital, as the insurance period for which Latvia pays is below 30 years.”


Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Mr Martyn Minter, is a British national, who was born in 1975 and lives in Hampshire. He was represented before the Court by Mr P. Rule, counsel, a barrister practising in London.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

When a person is sentenced to a determinate term of imprisonment, the normal practice is for that person to be released “on licence” after serving half of the sentence. The licence period usually lasts for the remainder of the sentence and during this period the person may be recalled to prison if he or she breaches the conditions of the licence.

When an offender is convicted of certain sexual or violent offences, the sentencing court may pass an “extended sentence” (see paragraphs 2326 below). In such cases, if the offender is sentenced to a determinate term of imprisonment he or she is usually released after serving half of that sentence. However, an additional licence period known as “the extension period” takes effect after the normal licence period ceases. This extension period can be of such length as the court considers necessary to protect members of the public from serious harm.

In England and Wales persons convicted of certain sexual offences are required to notify the police of various personal details. This includes the person’s current address, any change of address and any other address at which they stay for seven days or more. They must provide their national insurance numbers to the police and must allow the police to take their photograph and fingerprints for the purpose of verifying their identity. They must also give advance notice to the police of any foreign travel.

These notification requirements were first enacted in the Sexual Offences Act 1997 and subsequently re-enacted, with minor amendments, in sections 80–92 of the Sexual Offences Act 2003 (“the SOA 2003” – see paragraphs 27-31 below). The notification period varies according to the term of imprisonment imposed on the offender. For a person sentenced to a term of imprisonment of between six and thirty months, it is ten years from the date of conviction, but for a person sentenced to a term of imprisonment of thirty months or more it is indefinite.

In R v. S (Graham) [2001] Cr App R 111 the Court of Appeal, in observations which were subsequently treated as obiter, expressed the view that on plain construction the phrase “term of imprisonment” in the SOA 2003 did not include a sentence of extended licence. However, in R v. Wiles [2004] 2 Cr App (S) 467 the Court of Appeal held that in this respect R v. S (Graham) had been decided per incuriam and was wrong. In determining the length of the “qualifying sentence” for the purposes of making an order disqualifying an offender from working with children, the Court of Appeal found that the whole length of the extended sentence had to be taken into account.

On 16 August 2006 the applicant pleaded guilty to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. The maximum penalty for the offences of taking indecent photographs of a child and indecent assault was ten years’ imprisonment.

On 17 November 2006 the applicant was sentenced in respect of the most serious of the offences to an extended sentence. This extended sentence comprised a custodial term of eighteen months and an extension period of thirty-six months. Lesser sentences were imposed for the other offences. The sentencing judge gave the applicant credit for his early guilty pleas, his previous absence of any criminal convictions, his genuine remorse and his disgust at his own behaviour.

On 17 August 2007 the applicant was issued with a notice by the prison at which he was detained stating that he would be subjected to the sex offender notification requirements for a period of ten years. However, the notice warned that it was “not a complete statement of the law.” It went on to add: “It is suggested that you confirm this with the police when you make your notification on release from imprisonment. It is your responsibility to check this if you are not certain.”

The Chief Constable of Hampshire subsequently notified the applicant by letter of 22 September 2010 that he would be subjected to the notification requirements indefinitely. The Chief Constable reasoned that the applicant had been sentenced to a term of imprisonment of more than thirty months since the extended sentence was one of fiftyfour months (the custodial term of eighteen months plus the extension period of thirty-six months).

The applicant disagreed with the Chief Constable’s interpretation of the relevant statutory provisions. He considered that, when calculating the term of imprisonment, only the custodial term should have been counted and, given that this was less than thirty months, the notification period should only have been ten years. Accordingly, in December 2010 he sought judicial review of the Chief Constable’s decision.

In the course of the judicial review proceedings, the applicant also submitted that the legal framework in respect of the notification requirement lacked the degree of clarity and certainty required to be “in accordance with the law” within the meaning of Article 8 of the Convention; and that the Chief Constable’s interpretation of the relevant legislation constituted a disproportionate interference with his right to respect for his private life under that Article. He further submitted that there had been a breach of Article 14 taken in conjunction with Article 8 of the Convention because, after he had been sentenced, the sentencing regime had changed so that for persons sentenced after 14 July 2008 an extended sentence was no longer available unless they either had a previous conviction for a serious offence or the custodial term was at least four years’ imprisonment (see paragraph 26 below). As a consequence, someone in his position sentenced under the new sentencing regime would not receive the extended sentence he received.

In support of his Article 14 argument, the applicant relied on Clift v. the United Kingdom, no. 7205/07, 13 July 2010, in which the Court had accepted that the different treatment of different categories of prisoners depending on the sentences imposed on them was based on “other status”.

By judgment of 28 June 2011 the Divisional Court dismissed the applicant’s claim. Having reviewed both the domestic legislation and caselaw, it considered “it plain that the entirety of the extended sentence is a sentence of imprisonment ‘in respect of the offence’ for which it is imposed”.

Therefore, in respect of Article 8, the court held that the legal framework was sufficiently certain to satisfy the “in accordance with the law” requirement. Furthermore, as the purpose of the extension period was to manage and reduce the risk posed by an offender it was proportionate for the extension period to be included in any calculation of the notification period. The legislature had been entitled to fix the threshold for indefinite notification at thirty months. In doing so, it had struck a fair balance for the purposes of Article 8 of the Convention.

In respect of Article 14 taken in conjunction with Article 8, the court considered itself bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department [2007] 1 AC 484, which had ruled that the treatment of prisoners based on differences in length of sentence did not constitute differential treatment on the ground of “other status”, even though in Clift v. the United Kingdom this Court had subsequently reached the opposite conclusion. In any event, the Divisional Court found it “difficult to see how changes in the legislative regime referred to, affecting those sentenced at different dates, could give rise to discrimination”.

The Court of Appeal unanimously dismissed the applicant’s appeal on 1 May 2013. It upheld the Divisional Court’s finding that the prison term for the purpose of ascertaining the notification period was the aggregate term of the extended sentence. In this regard, it noted that “the Divisional Court was, with respect, plainly right on the short ground that the statutory language permits no other sensible conclusion”.

In respect of Article 8, the applicant had submitted that the imposition upon him of an indefinite notification requirement had been arbitrary and disproportionate. However, the court found that, given the purposes of the notification requirement and of extended sentences, there was nothing “arbitrary” or disproportionate in the imposition of an indefinite notification requirement in the applicant’s case. Moreover, it would, in time, be possible for the applicant to seek review of the indefinite notification period (see paragraph 34 below).

In respect of Article 14 taken in conjunction with Article 8, the court observed that all that had happened was that Parliament had altered its views as to the threshold for indefinite notification requirements. That did not generate retrospectively a good Article 14 argument. Furthermore, Laws LJ considered that the Court of Appeal, like the Divisional Court, was bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department.

On 17 March 2014, the Supreme Court refused the applicant permission to appeal.

In 2006, when the applicant was sentenced, extended sentences were regulated by section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) which provided, as relevant:

“85 Sexual or violent offences: extension of certain custodial sentences for licence purposes.

(1) This section applies where a court —

(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and

(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of —

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above.

(4) The extension period shall not exceed —.

(a) ten years in the case of a sexual offence; and

(b) five years in the case of a violent offence.

(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.”

The Criminal Justice Act 2003 (“the CJA 2003”) subsequently enacted new provisions governing extended sentences for offences committed after 4 April 2005.

Before an extended sentence may be imposed under the new provisions the court must find that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (section 226A of the CJA 2003).

Further requirements for the imposition of an extended sentence were added as of 14 July 2008. These additional requirements are that the offender must either:

(i) have a previous conviction for a serious offence (as defined in Schedule 15A to the CJA 2003); or

(ii) have committed an offence or offences meriting a custodial term of four years (section 226A of the CJA 2003).

The notification requirements for those convicted of certain sexual offences are now contained in the Sexual Offences Act 2003 (“the SOA 2003”). Section 82 sets different notification periods. For a person sentenced to a term of imprisonment of more than six months but less than thirty months, the notification period is ten years. For a person sentenced to thirty months’ imprisonment or more, the notification period is indefinite.

A person subject to the notification requirements is required to give the police his biographical information (his name(s), date of birth, National Insurance number, his home address and any other address at which he regularly resides or stays) as well as any changes to that information (sections 83(5) and 84). Section 85 provides for periodic notification of the information specified in section 83(5).

Section 86 requires notification of any travel arrangements outside the United Kingdom, including the date on which the offender will leave, the country (or the first country) to which he will travel and his point of arrival in that country, and any other information which the offender holds about his departure from or return to the United Kingdom or his movements while outside the United Kingdom.

Section 87(4) provides that, where a notification is given, the relevant offender must, if requested to do so by a police officer or authorised person, allow the officer or person to take his fingerprints and/or photograph any part of him.

By section 91(1) it is an offence to fail, without reasonable excuse, to comply with these requirements.

The applicants in R (on the application of F) and Thompson had sought a declaration that in the absence of any mechanism for review, the indefinite notification period under the 2003 Act was incompatible with Article 8 of the Convention. A Divisional Court of the Queen’s Bench Division granted the declaration of incompatibility and the Court of Appeal upheld that decision. The Secretary of State appealed to the Supreme Court.

The Supreme Court dismissed the appeal. It accepted that the indefinite notification requirement under the SOA 2003 was capable of causing significant interference with the right to respect for private and family life and, in the absence of any provision for individual review of the requirement, it constituted a disproportionate interference with Article 8 of the Convention.

Following R (F) and Thompson, the SOA 2003 was amended so as to make provision for review of the indefinite notification requirement. In respect of England and Wales, the review provisions are set out in sections 91A-F. Pursuant to these provisions, an offender over eighteen years of age can, after fifteen years, apply to the Chief Officer of Police for the area in which he resides for a determination that he or she should no longer be subject to the indefinite notification requirement (section 91B). The offender must satisfy the relevant Chief Officer of Police that indefinite notification is no longer necessary for the purpose of protecting the public or any particular members of the public from sexual harm (section 91C(2)). There is a right of appeal to the local Magistrate’s Court against any negative determination by the Chief Officer of Police (section 91E).


Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicant, Ms Ekaterina Kolesnikova, is an Uzbekistan national who was born in 1985 and lives in London. She was represented before the Court by Ms N. Rathbone Pullen of Wilson Solicitors and by Ms C. Meredith of Doughty Street Chambers, lawyers practising in London.

The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

The applicant claims that she was trafficked to the United Kingdom. On 2 June 2011 she was convicted of conspiracy to control prostitution for gain, three offences relating to identity documents, and removing criminal property from the United Kingdom.

On 17 June 2011 the applicant claimed asylum on the grounds that she would be at risk on return to Uzbekistan as an Orthodox Christian and because the authorities would have become aware of her criminal conviction in the United Kingdom. She also alleged that she would be at risk of further trafficking. Her application was refused.

The applicant was served with an order for deportation in June 2012. She appealed unsuccessfully against the order, invoking the same grounds raised in her asylum application.

On 23 September 2013 the applicant applied to revoke the deportation order but the Secretary of State refused her application and certified her asylum and human rights claim as clearly unfounded. Removal directions were set for 25 October 2013.

Prior to her deportation, the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court on the grounds that she would be at risk of ill-treatment at the hands of the Uzbek authorities owing to her criminal conviction for controlling prostitution. Her request was rejected owing to its late submission and she was deported to Uzbekistan. Following her arrival at Tashkent airport, she was detained by the police for forty-eight hours. During this time they took her finger prints in order to check her criminal record.

The applicant then asked the Court to grant an interim measure ordering her to be returned to the United Kingdom. Although the Court refused this request, it urgently communicated her complaint under Article 3 of the Convention. However, examination of the complaint was adjourned on 7 November 2014 at the applicant’s request as she had an out-of-country appeal pending before the First Tier Tribunal.

On 22 December 2015 the Court was informed that the applicant had been returned to the United Kingdom on 18 September 2015 to pursue her appeal in-country after a High Court judge found the Secretary of State’s decision to certify her claim as clearly unfounded to be unlawful.

On 12 January 2016 the Court wrote to both the applicant and Government asking whether, in light of recent developments, they would agree to the application being declared inadmissible, subject to the applicant’s right to reintroduce her complaint if she was not satisfied with the progress or outcome of the domestic proceedings. The parties were asked to contact the Court by 26 January 2016 at the latest. By letter of 21 January the Government informed the Court that they agreed to its proposal. To date, no response has been received from the applicant.


CASE OF MAGYAR TARTALOMSZOLGÁLTATÓK EGYESÜLETE AND INDEX.HU ZRT v. HUNGARY

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members.

The second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary.

At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants.

The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of comments were responsible for their contents.

Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary.

Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites.

Index’s “Principles of moderation” contained the following:

“I. Deletion of comments

1.1. Especially forbidden are:

comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act...

vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic...”

On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading.

The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following:

“They have talked about these two rubbish real estate websites (“két szemét ingatlanos oldalról”) a thousand times already.”

“Is this not that Benkő-Sándor-sort-of sly, rubbish, mug company (“benkősándoros sunyi szemét lehúzó cég”) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That’s it.”

On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”.

The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows:

“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.” (“Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek.”)

On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation.

Once learning of the impending court action, the applicants removed the impugned comments at once.

In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company.

On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff’s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies.

The Court found that the comments (see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them.

As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.

Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff’s action. They also argued that users’ comments were to be distinguished from readers’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage.

On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee.

The Court of Appeal held that – as opposed to readers’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court’s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘hosting service providers’ and ‘intermediaries’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation.

The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites.

On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2(lc) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication.

The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff’s legal representation.

This decision was served on 2 October 2012.

The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression.

On 11 March 2013 the Constitutional Court declared the complaint admissible.

On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, (decision no. 19/2014. (V.30.) AB). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows.

“[43] In the case concerned by the Kúria’s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage.

[44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press.

[50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law.

[59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet.

[63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate?

[65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.”


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicants were born in 1942 and 1969 respectively. The first applicant lives in Gabrovo and the second applicant lives in Varna.

Mr Ts. Mihalev, father of the first applicant and grandfather of the second applicant, owned a machinery factory in Gabrovo, which was nationalised in 1947. After the nationalisation the property was allocated for use to a State-owned enterprise, which in 1991 was transformed into a State-owned company named T.. Under domestic law, such a transformation entailed the newly-created company becoming, in principle, the owner of the assets which had until then been allocated to it for use and management; some assets allocated to State-owned enterprises or companies could nevertheless be the subject of restitution (see paragraph 15 below).

After the Restitution of Ownership of Nationalised Real Property Act (hereinafter “the Restitution Act”, see paragraphs 15-16 below) came into force in 1992, the first applicant and his brother asked the mayor of Gabrovo to strike the factory building out of the register of State properties. Their request was allowed in a decision of the mayor of 28 August 1992, which explicitly referred to the Restitution Act. On that basis in 1993 the first applicant and his brother obtained a notary deed, which also stated that the property had been subject to restitution under the Restitution Act.

In 1994 the first applicant and his brother concluded a rent contract with company T., which undertook to pay rent in exchange of the use of the building. The term of the contract was extended on several occasions, the last of which in 2002.

In 1997 the first applicant’s brother transferred his share in the building to his daughter, the second applicant.

After the entry into force of the Compensation of Owners of Nationalised Real Property Act (hereinafter “the Compensation Act”, see paragraph 17 below), in January 1998 the first applicant and his brother applied to receive compensation for moveable properties such as industrial equipment and materials which had been nationalised together with the factory. In a decision of 21 December 1999 the Minister of Economy awarded them compensation for these properties, noting in addition that the factory building had been the subject of restitution and no compensation was due for it. That decision was upheld in a final judgment of the Supreme Administrative Court of 17 September 2002, after the first applicant and his brother sought its judicial review, contesting the manner of compensation. Eventually, in 2005 they received compensation bonds with a face value of 19,494 Bulgarian levs (BGN, the equivalent of 9,970 euros (EUR)).

Company T. was privatised in 2003 and the new management stopped paying rent to the applicants for the factory building, arguing that it had in fact never been subject of restitution.

In January 2009 company T. brought proceedings against the applicants, claiming to be the factory building’s owner. It argued that the restitution of the property had not taken place, because the preconditions under the Restitution Act had not been complied with, and that it had become the owner of the building as a result of its transformation into a company (see paragraph 5 above).

In a judgment of 27 October 2009 the Gabrovo Regional Court dismissed the claim. However, on 17 May 2010 the Veliko Tarnovo Court of Appeal quashed the lower court’s judgment and allowed the action against the applicants, finding that the preconditions for restitution had indeed not been met. On the basis of expert evidence and witness testimony, it concluded that after the nationalisation the building had been modified in a manner and to a degree which meant that in 1992 it had not existed in its state prior to 1947. Accordingly, the applicants could not rely on restitution and company T. had become the owner of the building on the strength of its transformation from a State-owned enterprise into a company in 1991 (see paragraph 5 above). In a final decision of 30 March 2011 the Supreme Court of Cassation refused to accept for examination the applicants’ appeal on points of law.

In June 2011 the applicants applied to the Gabrovo regional governor to receive compensation for the factory building under the Compensation Act. In a decision of 19 July 2011 the governor dismissed their request, as it had not been submitted within the time-limit provided for under that Act (see paragraph 17 below). After the applicants applied for its judicial review, the governor’s decision was upheld in a final judgment of the Supreme Administrative Court of 14 June 2012.