CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 12 septembre 2012

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text-align:center; page-break-inside:avoid; page-break-after:avoid } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s1EFD787B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:0.05pt; text-align:justify; font-size:10pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER       CASE OF NADA v. SWITZERLAND   (Application no. 10593/08)                         JUDGMENT     STRASBOURG   12 September 2012             In the case of Nada v. Switzerland , The European Court of Human Rights, sitting as a Grand Chamber composed of:   Nicolas Bratza, President ,   Jean-Paul Costa,   Françoise Tulkens,   Josep Casadevall,   Nina Vajić,   Dean Spielmann,   Christos Rozakis,   Corneliu Bîrsan,   Karel Jungwiert,   Khanlar Hajiyev,   Ján Šikuta,   Isabelle Berro-Lefèvre,   Giorgio Malinverni,   George Nicolaou,   Mihai Poalelungi,   Kristina Pardalos,   Ganna Yudkivska, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 23 March 2011, 7 September 2011 and on 23 May 2012, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 10593/08) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian and Egyptian national, Mr Youssef Moustafa Nada (“the applicant”), on 19 February 2008. 2.     The applicant was represented by Mr J. McBride, a barrister in London. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice. 3.     In his application, Mr Nada alleged that the ban on entering or transiting through Switzerland, which had been imposed on him as a result of the addition of his name to the list annexed to the Federal Taliban Ordinance, had breached his right to liberty (Article 5 of the Convention) and his right to respect for private and family life, honour and reputation (Article 8). He submitted that this ban was thus also tantamount to ill-treatment within the meaning of Article 3. He further complained of a breach of his freedom to manifest his religion or beliefs (Article 9), arguing that his inability to leave the enclave of Campione d’Italia had prevented him from worshipping at a mosque. Lastly, he complained that there had been no effective remedy in respect of those complaints (Article 13). 4.     The application was assigned to the Court’s First Section (Rule 52 § 1 of the Rules of Court), which decided to deal with it on a priority basis under Rule 41. On 12 March 2009 a Chamber of that Section decided to give notice to the Government of the complaints under Articles 5, 8 and 13. 5.     The parties each submitted comments on the other’s observations. Observations were also received from the French and United Kingdom Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 as then in force). The Italian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). 6.     On 20 January 2010 the parties were informed that the Chamber intended to examine the admissibility and merits of the application at the same time (former Article 29 § 3 of the Convention together with former Rule 54A). 7.     On 30 September 2010 the Chamber, composed of Christos Rozakis, Nina Vajić, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni, and George Nicolaou, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment after being consulted for that purpose (Article   30 of the Convention and Rule 72). 8.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule   24. Jean ‑ Paul Costa, Christos Rozakis, Giorgio Malinverni and Mihai Poalelungi continued to deal with the case after their term of office expired, until the final deliberations, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. 9.     The applicant and the Government each filed observations on the merits of the case. The French and United Kingdom Governments submitted the same observations as before the Chamber. In addition, the President of the Grand Chamber authorised JUSTICE, a non-governmental organisation based in London, to submit written comments (Article 36 § 2 of the Convention and Rule 44 § 2). Lastly, the President of the Grand Chamber authorised the United Kingdom Government to take part in the hearing. 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 23 March 2011 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   F. Schürmann , Head of European Law and International     Human Rights Section, Federal Office of Justice,     Federal Justice and Police Department,   Agent , Mr   J. Lindenmann, A mbassador, Deputy Director of Public     International Law Directorate, Federal     Department of Foreign Affairs, Mr   R. E. Vock, Head of Sanctions Division, State Secretariat     for Economic Affairs, Federal Department of     Economic Affairs , Ms   R. Bourguin , specialised legal adviser with policy     responsibility, Legal Affairs Section, Migration     Policy Division, Federal Office for Migration,     Federal Justice and Police Department, Ms   C. Ehrich , technical adviser, European Law and     International Human Rights Section, Federal Office     of Justice, Federal Justice and Police Department,   Advisers ; (b)     for the applicant Mr   J. McBride , barrister,   Counsel , (c)     for the United Kingdom Government (third party) Mr   D. Walton,   Agent , Mr   S. Wordsworth ,   Counsel , Ms   C. Holmes ,   Adviser .   The applicant and his wife were also present. The Court heard addresses by Mr Schürmann, Mr McBride and Mr   Wordsworth. It also heard the replies of the parties’ representatives to questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 11.     The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. 12.     He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder. 13.     In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology. 14.     The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture. 15.     On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”). 16.     On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title. 17.     By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda. 18.     On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them). 19.     On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant. 20.     On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder. 21.     On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30   November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance. 22.     On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant. 23.     On 10 September 2002 Switzerland became a member of the United Nations. 24.     When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized. 25.     On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban. 26.     On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border. 27.     On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26   March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him. 28.     By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant. 29.     On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions. 30.     By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list. 31.     On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”). 32.     By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure. 33.     On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex   2 to the Taliban Ordinance. 34.     On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25   September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation. 35.     On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list. 36.     By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6   July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal. 37.     In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence. 38.     The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law ( jus cogens ), he argued that Switzerland was not obliged to implement them. 39.     By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12   July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20   July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision. 40.     On 29   October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28   November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting. B.     Federal Court judgment of 14 November 2007 41.     By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits. 42.     It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council. 43.     The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression). 44.     The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime. 45.     However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article   103 of the Charter, taken together with Article   30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations. 46.     The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens . Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed. 47.     The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens . 48.     As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows: “7.4     ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment. The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)). ...” 49.     The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights. 50.     The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude ( Ermessensspielraum ) in implementing them: “8.1     The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)). The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)). As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12   February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list. Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance. ... 8.3     In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance. It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights. The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...” 51.     The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows: “9.1     The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity. 9.2     For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses. United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ... On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.” 52.     Lastly, the Federal Court examined whether the travel ban enforced under Article   4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows: “10.1     Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions. According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ... 10.2     Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation. The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6   sq.   km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions. The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval. 10.3     The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings. The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.” C.     Developments subsequent to the Federal Court’s judgment 53.     Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21   February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision. 54.     On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court. During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient. As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council. 55.     The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6. 56.     On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15   July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand. 57.     On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation. 58.     By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12   December 2008, did not affect his situation. 59.     In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant. 60.     On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list. 61.     On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban. 62.     On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009. 63.     By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example. D.     Efforts made to improve the sanctions regime 64.     The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up