UN's terror list breaches fundamental rights - European Court

UN's terror list breaches fundamental rights - European Court

Thursday, 04 September 2008, 11:12 GMT]

Setting aside an earlier ruling of the Court of First Instance, the European Court of Justice (ECJ), Wednesday, 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. The ECJ recognised that "the rights of the defence [of those in "terror list"], in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected."

* ECJ Press release on Kadi trial

* ECJ Case Court opinion

The two parties were designated by the Sanctions Committee of the United Nations Security Council on 19 October 2001 as being 'associated with Usama bin Laden, Al-Qaeda or the Taleban'. The EU gives affect to the UN Sanctions Committee decision by adopting Regulations incorporating the UN asset-freezing regime into Community law. The EU also maintains its own dedicated 'terrorist list'.

The Court argued that the failure of the EC Regulation incorporating the Security Council's sanctions regime provides to include any procedure for 'communicating the evidence justifying the inclusion of the names of the persons concerned in the list' infringed fundamental rights.

The Court found that the EU Council was competent to adopt the freezing measures, and noted that there could be grounds where the restriction of the right to property could be justified, but ruled that the regulation in question was adopted without furnishing any guarantee enabling Mr Kadi to put his case to the competent authorities. Such a guarantee was, however, necessary in order to ensure respect for his right to property.

Wednesday's judgment is the latest in a series of rulings by the European Court against the EU proscription regime, albeit the first against the UN 'terrorist list'. In December 2006, in a case bought by the People's Mujahadeen of Iran (PMOI), the Court of First Instance found that the EU had denied designated parties the right to a fair hearing in which they could effectively challenge their designation as 'terrorist.'

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External Links:
SW: Terror List asset-freeze unlawful: Analysis
Wiki: European Court of Justice
Somali: Police turn over Djibouti offices of firm named by Bush
EU: 2005 Kadi judgement by EU Court of First Instance
Yale: Judicial review of freezing measures
OFAC: Specially Designated Global Terrorists