A/67/396
legal standards between mere suspicion and the internationally recognized criminal
standards that are precluded by resolution 1989 (2011). These intermediate
standards include reasonable grounds for suspicion, reasonable grounds for belief,
and proof on the balance of probabilities. The “reasonable and credible basis” test
adopted by the Ombudsperson does not clearly differentiate between them, or
indicate which standard is to be applied.
57. The answer must be divined from the language of the resolution, which
indicates only that national criminal standards of proof are inappropriate. Given the
quasi-penal consequences of these measures, the standard of review must be set as
high as possible, consistent with the terms of the resolution. This would require the
Committee and the Office of the Independent Designations Adjudicator/
Ombudsperson to be satisfied on the material available to them that the allegation of
association with Al-Qaida is at least more likely than not to be true (a “balance of
probabilities” test). 102 Further, the standard must incorporate a proportionality
element, if it is to meet the requirements laid down by the European Court of
Human Rights in Nada v. Switzerland, 103 and as envisaged by the High
Commissioner for Human Rights 104 and the Human Rights Committee. 105 Where
the imposition of the measures would involve a disproportionate interference with a
protected human right, the Office of the Independent Designations Adjudicator/
Ombudsperson should have power to issue a delisting decision. The Office of the
Independent Designations Adjudicator/Ombudsperson should therefore be required
to recommend delisting, unless she is satisfied on the material made available to her
(a) that it is more likely than not that the designated individual or entity is
associated with Al-Qaida, within the meaning of resolution 1989 (2011); and (b) that
the imposition of sanctions constitutes a proportionate interference with the
fundamental rights of the designated person or entity.
58. A further aspect of the regime that has caused concern is the indeterminate
nature of the sanctions imposed on designated individuals and entities. When
viewed in combination with the severity of the measures imposed, the risk that
sanctions will become effectively permanent gives them the colour of a penal
sanction. The General Court of the European Union has observed that due to the
length of time individuals remain listed “the question of the classification of the
measures in question as preventative or punitive, protective or confiscatory, civil or
criminal seems now to be an open one”. 106 The Monitoring Team has also expressed
the view that time limits would help to prevent the continuation of listings through
inertia. Considering the need to reinforce the temporary and preventative purpose of
the sanctions imposed under the 1267/1989 regime, the Special Rapporteur
recommends that the Security Council should revisit proposals previously advanced
__________________
102
103
104
105
106
12-52254
See Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC)
(Appellants) [2010] UKSC 2, [2010] 2 AC 534, para. 58.
See Nada v. Switzerland, Case No. 10593/08, European Court of Human Rights, 10 September
2012.
See A/HRC/16/50, para. 19.
See CCPR/C/94/D/1472/2006 (“Sayadi and Vinck v. Belgium”), Separate Opinion of Sir Nigel
Rodley.
Case T-85/09 Yassin Abdullah Kadi v. European Commission, General Court (Seventh Chamber),
30 September 2010 [2011] CMLR 24, para. 150.
21
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