Sanctions – ameliorating the effect on individuals

1 October 2012

In Ahmed and ors v HM Treasury [2010] UKSC 2 Lord Hope famously described the effect of being designated under a sanctions order in the following terms “It is no exaggeration to say…that designated persons are effectively prisoners of the state…[T]heir freedom of movement is severely restricted without access to funds  or other economic resources, and the effect on both then and their families can be devastating”. There has been a growing amount of litigation aimed at mitigating the harsh effects of designation and in a very recent decision, Nada v Switzerland [2012] ECHR 1691 the European Court of Human Rights has taken a step forward in requiring states to take into account individual circumstances when applying sanctions to individuals.

In Nada the effect of the sanctions (introduced by the Swiss authorities following a UN Taleban sanctions resolution) was particularly stark. Mr Nada, an Italian citizen, lived in a tiny (1.6 Italian enclave within the Swiss Canton of Ticino. The sanctions against him meant that he could not travel through Switzerland to Italy without a permit. His challenge was on the basis that as a result the sanctions measure breached his rights under Article 8 ECHR. His challenge was successful.

One potential barrier in the way of his claim was the fact that the Swiss regime was introduced pursuant to a UN resolution which, as a matter of international law, created a binding obligation on the Swiss authorities – the authorities on the face of it had no choice but to apply sanctions to Mr Nada. The majority in the ECtHR found a way around this by reading into the wording of the relevant UN resolution a flexibility or discretion available to member states on how they gave effect to the resolution. Given the very clear terms of the resolution, that was perhaps a surprising conclusion to have reached – and this was recognised in a minority concurring opinion in the Nada judgement , in which it was said that the resolution allowed no flexibility or discretion.

However what was found in both opinions in Nada was that Article 8 had required first of all that the Swiss authorities should have taken such steps as were open to them to mitigate the effects of the measures, so far as they affected Mr Nada’s family and private life – for example by a more flexible approach to the grant of licences to travel for medical treatment; and, second, that the Swiss authorities should have taken all steps reasonably open to them to bring about a change in the sanctions regime in relation to Mr Nada – on the facts of this case, informing the relevant UN Sanctions Committee of the facts that a criminal investigation of Mr Nada had concluded that allegations against him were unfounded.

Although the factual circumstances of the Nada case were specific and unusual, the judgment of the ECtHR clearly opens up a new avenue through which the harshness of the effect of sanctions on an individual can be challenged.

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