The EU has de-listed Iraq-based entities Medical City Establishment and State Company for Drugs and Medical Appliances from its sanctions on Iraq. The changes implement a UN decision to de-list them at the end of last year.
The EU has de-listed 19 entities from its sanctions on Iraq, which freeze the assets of the previous Government of Iraq, and related people and entities, if those assets were located outside Iraq on 22 May 2003. This implements a UN decision to de-list the entities from UN sanctions on 16 September 2016. The UN and EU de-listed 5 other entities earlier this month (see previous blogs here and here).
The EU has de-listed South Refineries Company from its sanctions relating to Iraq, which freeze the assets of the previous Government of Iraq, and related people and entities, if those assets were located outside of Iraq on 22 May 2003. The update implements a UN decision to de-list South Refineries Company from its own sanctions on 6 September.
The EU has de-listed 4 entities that were subject to asset freezes under its sanctions on Iraq, implementing a UN decision to remove them from its own sanctions last month. The remaining sanctions freeze the assets of the previous Government of Iraq, as well as related people and entities, if those assets were located outside of Iraq on 22 May 2003. The de-listed entities are:
- Iraqi Airways Company
- Directorate-General of Governorate Electricity Distribution
- Electronic Industrial Company
- Light Industries Company
The Grand Chamber of the European Court of Human Rights has handed down its judgment in Al-Dulimi and Montana Mangement Inc. v Switzerland ECHR 219 , finding in favour of the applicants who argued that Switzerland’s decision to impose an asset freeze on them violated their right to a fair hearing.
The asset freezes were imposed by Switzerland pursuant to UN Security Council Resolution 1483, which targeted the former Iraqi regime. The Court found that, before imposing sanctions on the applicants, the Swiss authorities had a duty to ensure that the listings were not arbitrary. Further, whereas when the applicants challenged the sanctions the Swiss Federal Court merely verified that the applicant’s names appeared on the UN’s sanctions lists, the Court found that the applicants should have been given “at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the lists had been arbitrary”. Consequently, the Court found that “the very essence of their right of access to a court had been impaired”.
In addition, the Court noted that the UN sanctions system, in particular the procedures for listing people and entities and handling de-listing requests, had received “very serious, reiterated, and consistent criticisms”. Significantly, it found that access to the UN’s de-listing procedure could not therefore “replace appropriate judicial scrutiny at the level of the respondent State, or even partly compensate for its absence”.
On 23 July 2014, the EU amended the basis of its financial sanctions against Iraq by way of a new Regulation and Decision, which provide clarity on the existing provisions relating to financial sanctions.
Council Regulation (EU) No 791/2014 amends Regulation (EC) No 1210/2003 and provides that the authorities listed in the regulation now have the power to authorise making certain funds and economic resources available if they fall into one of the categories listed below. The Council of the European Union has also adopted Council Decision 2014/484/CFSP, which amends Common Position 2003/495/CFSP. The Decision has inserted the following Article into the Common Position:
No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the persons and entities referred to in Article 2(b).
Exemptions may be made for funds and economic resources which are:
(a) necessary to satisfy basic needs of the persons referred to in Article 2(b), and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;
(b) intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;
(c) intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds and economic resources; or
(d) necessary for extraordinary expenses, provided that the relevant competent authority has notified the grounds on which it considers that a specific authorisation should be granted to the competent authorities of the other Member States and to the Commission at least two weeks prior to the authorisation.”
The changes entered into force on 23 July 2014 with their publication in the Official Journal of the European Union. A full list of the sanctions currently in force against Iraq can be found on the ‘sanctions in force’ section of this blog.
The Kadi cases in the European Court of Justice in Luxembourg famously held (see previous blogs) that European Union measures that implement UN Security Council resolutions must subject to effective judicial review by the European Court for compliance with the fundamental principles of EU law, which include rights of defence, proportionality, the right to be given reasons etc.
Less well known than the Kadi cases is Al-Dulimi and Montana Management v Switzerland in the European Court of Human Rights in Strasbourg. [The ECHR is the Council of Europe’s court, adjudicating on cases between individuals and Member States of the Council of Europe for violations of the European Convention on Human Rights. The ECJ is the European Union’s court, adjudicating on (inter alia) actions for annulment brought by individuals against the EU institutions for breaches of EU law]. The judgment is here, and was handed down on 26 November 2013.
The Strasbourg court in Al-Dulimi reached a similar conclusion to the Court of Justice in Kadi. Mr Al Dulimi (and the company of which he was Managing Director) complained to the European Court of Human Rights that his right of access to court guaranteed by Article 6 of the ECHR had been violated by the Swiss courts’ refusal to adjudicate on the substance of a case he brought in the Swiss courts complaining that his assets had been frozen and confiscated by the Swiss authorities. The position of the Swiss government and courts was that the Swiss courts could not adjudicate because Switzerland had no discretion and had to implement UN Security Council resolution 1483 which froze the assets of those connected with the government of Iraq (including the applicant and his company), and there was nothing the Swiss courts could do.
The Strasbourg court held that this was a disproportionate restriction of Article 6 ECHR, because neither the UN Security Council nor the Swiss courts were providing him with access to effective judicial review, which was essential given the considerable restriction of freezing (since 1990) and confiscating (since 2006) his assets.
The similarity with Kadi is obvious; both international courts have said that the EU and ECHR require judicial review, even where the UN is the source of the sanctions restriction, and in particular where the UN has not itself provided access to a court. The Strasbourg court noted that there was no UN Ombudsperson for the Iraq sanctions list (as there is, as a result of the Kadi case, for the Al Qaida list). §134 “for as long as there is no independent and effective judicial review, at the level of the United Nations, of the legitimacy of adding individuals and entities to the relevant lists, it is essential that such individuals and entities should be authorized to request the review by the national courts of any measure adopted pursuant to the sanctions regime”.
Neither Luxembourg not Strasbourg found this issue easy. In Luxembourg the lower court (then called the Court of First Instance) had initially said that the European courts could not review measures implementing UN resolutions because that would violate the supremacy of the UN, and therefore the European court could only review measures for their compliance with ‘ius cogens’. The Court of Justice on appeal in both Kadi 1 and Kadi 2 disagreed, and held that all EU measures, even those that implement a UN resolution, must be subject to effective review by the EU courts. In Strasbourg one judge (Judge Sajo) dissented in part (NB dissenting judgments are not permitted in Luxembourg) on the grounds that the case should have been declared inadmissible, and three (Judges Lorenzen, Raimondi and Jociene) on the grounds that there was no violation of Article 6. All of the dissents are based on the supremacy of the UN in Article 103 of the UN Charter, and the absence of discretion on the part of Switzerland when implementing a binding UN resolution. The dissenters distinguished Kadi on the basis that the EU is not a member of the UN (and the clash of obligations does not therefore directly arise) and Nada v Switzerland (the other recent ECHR sanctions case) because Switzerland had some discretion in implementing the resolution in that case.
Given the importance of the case, it might have been desirable for it to have been decided by the Grand Chamber of the ECHR (Kadi went to the Grand Chamber of the ECHR both times round, as did Nada v Switzerland in Strasbourg), but Switzerland objected to its transfer to the Grand Chamber.