SWITZERLAND Law and Practice Contributed by: Philippe Reich, Meera Rolaz, Kaspar Projer, Samantha Salsench and Anna Zellweger, Baker McKenzie Switzerland AG
In contrast, the obligation to report to SECO under Article 16 of the Ukraine Ordinance is of a different nature. Thus, regarding the order to provide a balance report to SECO, the court ruled that it could be con - tested and that it should therefore have been served on the account holders. 3.2 Future Developments It is to be expected that the Swiss sanctions system, including the guidance for the implementation of sanctions, the involvement of the courts in sanctions matters and the enforcement of sanctions by SECO, will continue to become more robust and also more diversified in the future. In particular, it is expected that the enforcement landscape will expand. In light of 1.4.3 Domestic and/or Supranational Meas- ures , Switzerland is expected to continue the current trend of implementing the sanctions regulations of the European Commission. There is no indication that this current trend should change, although the Swiss legislature is expected to continue implementing the European sanctions framework with certain “Swiss finishes” (as has been the case in the past: an exam - ple of such Swiss finish can notably be found in the notification obligation concerning the provision of ser - vices or software under the services and software ban, Article 28e paragraph 6 of the Ukraine Ordinance). Sanctions lists are updated based on the correspond - ing lists of the UN or, in the case of alignment with EU sanctions, the EU (see Article 1 paragraph 1 EmbA; see 1.4.3 Domestic and/or Supranational Measures ). For example, in the case of EU sanctions against Ven - ezuela, Switzerland has aligned with all EU sanctions measures and has so far also aligned with the EU del - istings. Thus, the responsible Swiss agencies and courts will generally reject delisting requests as long as the indi - vidual or entity concerned is designated by the corre - sponding international or foreign authority with which Switzerland has aligned. Designations should actu - ally be challenged before the foreign or international 4. Delisting Challenges 4.1 Process
authority that initially decided on the designation. When it concerns UN sanctions, delisting requests should be submitted to the Office of the Ombud - sperson to the ISIL ( Da’esh ) and Al-Qaida Sanctions Committee and, for other sanctions regimes, the Focal Point for Delisting. The process for a designated person to domestically seek judicial review in Switzerland to overturn the listing should follow the Federal Act on Administra - tive Procedure (Administrative Procedure Act (APA), see Article 1 paragraph 2 let. a APA). In Nada v Swit- zerland , where the Grand Chamber of the European Court of Human Rights considered that the applicant had exhausted the domestic remedies available in Switzerland relating to the sanctions regime in ques - tion to claim his delisting, the applicant had pursued the following procedure: • submission of a request for the deletion of the name of the applicant from the annex to the respective Swiss sanctions ordinance to SECO; • following the dismissal of such request, lodging of an administrative appeal with the Federal Depart - ment of Economic Affairs; • following the dismissal of such appeal, lodging of an appeal to the Federal Council; • the Federal Council ruled on the appeal and referred the applicant’s appeal to the Swiss Federal Supreme Court; and • the Swiss Federal Supreme Court decided on the admission and merits of the appeal (see para - graphs 30–52 of judgment of 12 September 2012, ECHR, Grand Chamber, case of Nada v Switzer- land ). 4.2 Remedies Margin of Appreciation of UN Member States for Delisting The responsible Swiss agencies and courts generally reject the delisting if the individual or entity concerned is mentioned on sanctions lists issued by the UN (or, in case of alignment with EU sanctions, the EU). See, in this regard, the reasoning of the Swiss Federal Supreme Court in Nada v Switzerland in 4.1 Process . The Swiss Federal Supreme Court, when examining the question of the extent to which Switzerland is bound by the relevant UNSC resolutions and whether
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