28 March 2012
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Successful challenge to EU "terrorist" list by PMOI
On 12 December 2006, the European Court of First Instance (CFI) ruled in favour of an appeal by the People's Mujahedeen of Iran (PMOI) against their inclusion in the EU's "terrorist list". The Court's ruling represents the first successful legal challenge to the EU proscription regime - thirteen previous challenges have been dismissed (seven cases have been appealed to the European Court of Justice, another seven cases are pending).
The PMOI was proscribed by the EU Council in June 2002 on the basis of EC measures freezing assets and evidence of named "terrorists". It lodged its appeal with the EU Court in July 2002 (case T-228/02).
The CFI held 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. Specifically, the Court ruled that the EU should have provided the PMOI with a "statement of reasons". Moreover,
That statement must include the reasons why the Council considers, in the exercise of its discretion, that such a measure must be taken.
The Court also criticised the EU's failure to provide any procedure for notifying the PMOI of the allegations or evidence against them or demonstrate that the decision had been taken by a competent national authority.
Not only has the OMPI been unable effectively to make known its views to the Council but, in the absence of any statement, in the contested decision, of the actual and specific grounds justifying that decision, it has not been placed in a position to avail itself of its right of action before the Court.
Moreover, neither the file material produced before the Court, nor the responses given at the hearing by the Council and the United Kingdom in response to the questions put by the Court, enable it to conduct its judicial review, since it is not even in a position to determine with certainty exactly which is the national decision on which the contested decision is based (emphasis in original).
While this judgment paves the way for other groups listed by the EU on the basis of a dubious decision to challenge their own listing, it also brings into sharp relief the inability of the CFI to satisfactorily answer the questions put to it.
The implications of the ruling
The Court ruled against the inclusion of the PMOI on the EU "terrorist" list - it did not rule against the relevant legislation. Moreover, the ruling is limited to the decision to freeze the PMOI's assets, rather than the broader issue of its designation as "terrorist". This is important because the EU distinguishes between "terrorists" within the EU - who do not face financial sanctions - and those outside the EU, who are subject to these sanctions.
The Court made a further distinction between organisations proscribed by the EU member states, and organisations proscribed the UN Security Council. The UN currently lists 125 groups and 361 individuals as associates of "al-Qeada" or the "Taleban". Those named are also subject to asset freezing under EU law. A number of affected individuals have challenged their inclusion on the UN list in the EU Courts but the CFI has dismissed their claims. A number of these judgments have been appealed to the European Court of Justice which could come to different conclusions about the cases.
Nevertheless, the judgment has far-reaching implications for the other groups and individuals included in the EU's terrorist list. Primarily, it is clear that affected parties are entitled to a "statement of reasons" (though it is not clear that this applies to all proscribed entities or only those subject to financial sanctions). More importantly, it is clear that affected parties are ultimately entitled to a hearing before a court that is competent to review the lawfulness of the decision to include them in the "terrorist list".
This leaves a limited route for other groups and individuals to challenge their inclusion in the EU list. Several Basque groups have appealed the CFI's decisions to the European Court of Justice (joined cases C-354/04 and 355/05) but the Advocate General has recently recommended their rejection. However, in an appeal brought on behalf of the PKK (case C-229/05), the Advocate General suggests that the CFI's earlier ruling could be set aside on the grounds that it erroneously denied the organisation the chance to challenge its designation as terrorist.
Three more pending cases at the ECJ (C-402/05, C-415/05 and C-117/06) will clarify the position of persons in the EU included on the UN "terrorist" list.
Review of "terrorist" list procedures
The Council has until 12 February 2007 to decide whether to appeal the CFI's ruling to the ECJ. In response to the ruling, it announced that:
The Council intends to provide a statement of reasons to each person and entity subject to the asset freeze, wherever that is feasible, and to establish a clearer and more transparent procedure for allowing listed persons and entities to request that their case be re-considered (emphsasis added).
On 12 December 2005, exactly a year before the CFI ruling on the PMOI, the EU Council adopted guidelines on "EU Best Practices for the effective implementation of restrictive measures". While these guidelines primarily concern the enforcement of the sanctions, they state:
A transparent and effective de-listing procedure is essential to the credibility and legitimacy of restrictive measures. Such a procedure could also improve the quality of listing decisions. De-listing could be appropriate in various cases, including evidence of mistaken listing...
In June, the EU produced a document on "requests of persons included in the EU terrorism list" concerning possible procedures for de-listing. It is clear from this document that the EU Council is well aware of its failure to provide for a fair hearing. However, so much of the text has been redacted (blanked out under secrecy rules) it is still quite unclear how the Council intends to remedy this situation (see documents below).
The CFI's ruling on the PMOI sets several important precedents. However, the Court's inability to conduct an adequate judicial review of the EU decision demonstrates that an effective judicial remedy for those included on the EU terrorist list is still along way off.
EU Court of First Instance: Case T-228/02, Organisation des Modjahedines du peuple dIran v Council of the European Union
- CFI press release (12 December 2006); CFI judgment (full-text); EU Council statement
EU Council: Targeted sanctions: review of designations at the request of persons included in the EU terrorism list", 11905/06 EXT 1, 20 July 2006; "EU Best Practices for the effective implementation of restrictive measures", 10533/06, 14 June 2006
EU case law: Statewatch terrorist lists website
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