A/67/396 21. The most recent such decision is the Judgement of the Grand Chamber of the European Court of Human Rights in Nada v. Switzerland.13 The Court held that restrictions on the applicant’s freedom of movement, imposed by an ordinance of the Swiss Federal Council implementing resolution 1267 (1999) (as amended) had violated his right to respect for his private life, in breach of article 8 of the European Convention on Human Rights. Of much greater practical significance, however, was the Court’s finding of a violation under article 13 of the Convention (the right to an effective domestic remedy). The Court concluded that in the absence of effective judicial review at the United Nations level, there was a duty on State parties to the Convention to provide an effective remedy under national law. This implied a full review on fact and law by an entity with jurisdiction to determine whether the measures were justified and proportionate in the individual case and power to order their removal. 25 The Nada Judgement thus echoes the approach of the European Court of Justice and the General Court in the Kadi litigation, 26 holding that regional implementing measures taken by the European Commission were to be judged against human rights standards binding on the Community institutions. However, the principle in the Nada case has wider geographical ramifications than the Kadi litigation since it applies to all 47 member States of the Council of Europe, including three permanent members of the Security Council. 22. Foreshadowing the decision in the Nada case, the former Special Rapporteur had already expressed the view that as long as there is no effective and independent judicial review of listings at the United Nations level “it is essential that listed individuals and entities have access to domestic judicial review of any measure implementing the sanctions pursuant to resolution 1267 (1999)”. 27 However, domestic judicial review is not an adequate substitute for due process at the United Nations level since the State responsible for implementation may not have access to the full justification for the listing (see para. 25 below). Even if it does, it may not have the designating State’s consent to reveal the information. 28 This can obstruct the ability of national or regional courts to carry out an effective judicial review. 29 More generally, as the High Commissioner for Human Rights has observed, the ability of individuals and entities to challenge their listing at the national level __________________ 25 26 27 28 29 12-52254 See Nada v. Switzerland, Case No. 10593/08, European Court of Human Rights, 10 September 2012, Concurring Opinion of Judge Malinverni, paras. 23-25; see also Josiane Auvret-Finck, “Le contrôle des décisions du Conseil de sécurité par la Cour européenne des droits de l’homme”, and Constance Grewe, “Les exigences de la protection des droits fondamentaux”, in Sanctions ciblées et protections juridictionnelles des droits fondamentaux dans l’Union européenne. Équilibres et déséquilibres de la balance, Constance Grewe et al., eds. (Brussels, 2010). See Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice (Grand Chamber), 3 September 2008; see also Case T-85/09 Yassin Abdullah Kadi v. European Commission, General Court (Seventh Chamber), 30 September 2010 [2011] CMLR 24. A/65/258, para. 58; see also model provision on judicial review of terrorist listings: A/HRC/16/15, paras. 33-35. See Hay v. HM Treasury [2009] EWHC 1677; Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010] 2 AC 534. See R (Hany Youssef) v. Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2091 (Admin) 23 July 2012. 9