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Latest news and documentation (Statewatch terrorist lists site, updated 03 September 2008)
September 2008 - EU implementation of UN Security Council's 'terrorist list' breaches fundamental rights - Kadi and Al Barakaat Foundation asset-freeze unlawful. In a judgment with far-reaching implications the European Court of Justice has today [3 September 2008] annulled the Council Regulation freezing the assets of Yassin Abdullah Kadi, a resident of Saudi Arabia, and the Al Barakaat International Foundation of Sweden, part of the 'Hawala' banking system used by the Somali Diaspora to transfer funds internationally.
In a High Court judgment today of the highest constitutional importance, Mr Justice Collins has ordered that Government measures introduced to freeze terrorist assets were unlawful and should be struck down as they had not been authorised or sanctioned by Parliament. The measures contained in the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 were introduced directly by the Government through Orders in Council to implement United Nations Security Council Resolutions to strengthen domestic controls on the financing of terrorism and to comply with the British Government’s international obligations to enforce UN Resolutions requiring such controls. They have never been scrutinised, debated or approved by Parliament.
Ben Hayes of Statewatch comments:
"The government has again shown itself all too willing to sacrifice basic freedoms in the 'war on terror' - the Orders declared unlawful today could scarcely have intruded further into the fundamental rights and liberties of UK citizens.
The High Court has sent an unequivocal message to the government: a regime of this nature should never have been introduced without consulting Parliament. It must be hoped that MPs will look very closely at the way the Treasury has been using these powers before endorsing such a draconian regime in future".
On the Government’s circumvention of Parliament, Mr Justice Collins said in his judgment:
“Counsel for the applicants have submitted that the means used to apply the obligations imposed by the UN Resolutions is unlawful. Parliament has been bypassed by the use of Orders in Council. But in deciding the appropriate way in which the obligation should be applied and in particular in creating the criminal offences set out in the Orders it was necessary that Parliamentary approval should be obtained. Those submissions are in my judgment entirely persuasive.”
On the extraordinary nature of the Treasury regime, Mr Justice Collins said:
"The very wide definition of economic resources makes it impossible for members of the family of the designated person in particular to know whether they are committing an offence or a licence is needed... A specific query arose, and it is a good illustration of the absurdity which can result, in relation to the loan of a car to an applicant to enable him to go to the supermarket to get the family’s groceries. After some delay, the Treasury (in my view wrongly) decided that a licence was needed. The car was an economic resource and could be used to obtain or deliver goods or services. This was only resolved by the Treasury after seeking ministerial consideration. Similar concerns have been raised in relation to an Oyster card to enable the applicant to travel and any borrowing of items for any purpose. Since the possible penalty on conviction is severe, the concerns are understandable and the effect on the applicant and his family, whose human rights are also in issue, is serious".
The government is to appeal and can be expected to demand an expeditious hearing on the grounds that the quashing of the Al-Qaida and Taliban Order leaves it in breach of its obligations under international law.
Documentation
'G', 'K', 'A', 'M', and 'Q' v. H.M. Treasury: Judgment - full-text (24 April 2004)
Press release: Birnberg-Peirce, Tuckers & Public Law Solicitors (24 April 2004)
For full background see: Britain's financial Guantanamo (Statewatch, 21 April 2004).
See also Mean and squalid measures, Victoria Brittain (Guardian, 24 April 2004) and Anti-terror asset-freezing order improperly made (Times law report, 5 May 2008)
These judgments were widely excepted following the rulings in favour of Jose Maria Sison and Stichting al-Asqa (both based in Netherlands) in July 2007, and the precedent set in the People's Mojahedin Organisation of Iran (PMOI) ruling in December 2006. In this case the Court found that the EU's proscription regime had denied the PMOI the right to a fair hearing in which it could challenge its designation as "terrorist" in accordance with its fundamental right to a fair trial (see: analysis of PMOI judgment). This paved the way for other proscribed groups and individuals to challenge their inclusion in the list.
In response to the PMOI ruling, the EU "reformed" its procedures for listing and de-listing. Whereas prior to the PMOI judgment no mechanism existed for those proscribed to either receive an explanation for their inclusion or to challenge that explanation, the EU now provides affected parties with a "statement of reasons". In turn, those parties may then write back to the secret EU group responsible for the decision to contest the statement and request de-listing. The EU has maintained in the "terrorist list" those groups and individuals who have already successfully challenged their proscription at the EU Courts on the grounds that its "reforms" remedy the fair trial breaches that the Court has identified. This issue will not be resolved until the PMOI's new challenge to the EU's decision to maintain them in the list (case T-157/07) returns to the Court, which may take several years. In the meantime, the challenges by other proscribed organisations are mounting up - as are the compensation claims.
Ben Hayes of Statewatch comments:
"There isn't a lawyer in Europe who believes that the EU 'reform' of its proscription regime amounts to the fair hearing that EU law demands. On the contrary, the regime remains a recipe for arbitrary, unaccountable and politically-motivated decision making. By ignoring the increasingly clear message from the EU Courts, the member states are doing themselves a great disservice.
Instead of digging its heels in, the EU should introduce a meaningful appeals procedure for affected parties. To wait years for the EU court system or the Strasbourg Court to deliver a judgment that everyone can see coming would be an affront to the EU's stated commitment to human rights."
See earlier report: Iran mujahidin to challenge EU terror list (EUobserver.com, 12.5.07, archived by ncr-iran.org). Despite the ruling by the European Court of First Instance that the EU acted unlawfully in freezing the PMOI's assets, the organisation remains on the EU "terrorist list". The PMOI is now going back to court to seek removal from the list and €1 million in damages. The matter has also been raised in the Danish parliament.
9.3.07, pdf). The report concludes:With regard to the United Nations sanctions regime, further improvements are needed to ensure a listing process which is transparent, based on clear criteria, and with an appropriate, explicit, and uniformly applied standard of evidence, as well as an effective, accessible and independent mechanism of review for individuals and concerned States. Fair and clear procedures must include the right of an individual to be informed of the measures taken and to know the case against him or her; the right of such a person to be heard within a reasonable time by the relevant decision-making body; the right to effective review by a competent, independent review mechanism; the right of such a person to representation with respect to all proceedings; and the right of such a person to an effective remedy.
The UK government and European Commission both intervened in the case, arguing that the CFI ruling should stand, but, following the advice of the Advocate General (below), the ECJ found that the CFI had "distorted" the evidence and should have recognised Mr Ocalan's power of attorney. The case will now return to the CFI for a decision on the substantive appeal against the PKK's inclusion in the terrorist list. Last month the CFI ruled that the PMOI's right to a fair hearing had been breached by the Council's failure to provide the organisation with any information concerning its decision to add them to the "terrorist" list (see analysis of PMOI ruling).
The appeal in the PKK case was brought jointly by Mr Ocalan and Serif Vanly, on behalf of the Kurdistan National Congress (KNK), which is not included in the EU terrorist list (only KADEK and KONGRA-GEL are listed as aliases of the PKK). The KNK challenged the proscription of the PKK on the grounds that it was directly affected by the ban but the ECJ upheld the CFI's decision to declare its appeal inadmissible.
See: Security Council Resolution 1730 on de-listing procedures (19 December 2006)
Amended guidelines for the Taliban Sanctions Committee (29 November 2006)
The EU "terrorist" list now contains a total of 50 groups and 54 individuals (see previous list).