|
|
"To us
all towns are one, all men our kin. |
| Home | Whats New | Trans State Nation | One World | Unfolding Consciousness | Comments | Search |
|
|
"To us
all towns are one, all men our kin. |
| Home | Whats New | Trans State Nation | One World | Unfolding Consciousness | Comments | Search |
Home > Human Rights & Humanitarian Law > Armed Conflict & the Law > What is Terrorism? > Terrorism: European Union Law & Practise > Terrorist Designation with Regard to European and International Law - Joint Opinion of Prof. Bill Bowring & Prof. Douwe Korff
Terrorism: European Union Law & Practise
|
Terrorist Designation with Regard to European
and International Law:
Prof. Bill Bowring, &
Prof. Douwe Korff, International Conference of Jurists, Paris, 10 November 2004 [also in PDF]
Introduction This Joint Opinion concerns the following questions: first, what is the significance in law of the word “terrorist”; second, how is it that an organization may find itself designated as “terrorist”; and third, what can the organization concerned do about it. Our starting point is the remark made by Judge Rosalyn Higgins, of the International Court of Justice, in 1997:
The United Nations Earlier this year, Judge Gilbert Guillaume, former President of the ICJ, was able, following his own attempt at a definition of terrorism, to add:
I will return to his attempt at a definition. He points out, however, that since 1963 a series of conventions and decisions dealing with various aspects of “terrorism” have been adopted. These include
This impressive list covers most aspects of “terrorism”, and the conventions concerned have been ratified by most states. The 1970 Hague Convention has been ratified by over 180 states. None of these use, much less define, the word “terrorism”.3 Between 1972 and 1979 the Ad Hoc Committee on International Terrorism set up by the UN General Assembly attempted to find a unanimously accepted definition of terrorism. 4 It failed, for the reason that the members of the Group of 77, the formerly colonised states, repeatedly emphasised the legitimacy of actions by national liberation movements 5, and demanded that such actions should in no way be confused with terrorism.6 Helena Kennedy QC, Chair of the British Council, makes a similar point to that made by Judge Guillaume:
This reflection is of key importance to the PMOI, which sees itself as the wholly legitimate opposition to a brutally repressive regime, where the use of violent methods is no more criminal than the use of the same or very similar tactics by the ANC and PAC in South Africa, the PLO in Israel/Palestine, or FRELIMO in East Timor. It is also notable that on 25 January 1977 the Council of Europe adopted the European Convention on the Suppression of Terrorism, which also failed to provide any definition of the term. The United Nations followed 20 years later with the International Convention for the Suppression of Terrorist Bombings adopted on 9 December 1999, but this too failed to define the word “terrorist”. Furthermore, even following the events of 11 September 2001, the UN Security Council Resolutions 1368 of 12 September 2001 and 1373 of 28 September 2001 did not provide any definition or other clarification as to what was meant by terrorism. Is there any possibility of an agreed definition? According to Judge Guillaume, the adjective “terrorist” could be applied to “any criminal activity involving the use of violence in circumstances likely to cause bodily harm or a threat to human life, in connection with an enterprise whose aim is to provoke terror.” Thus, he proposes three conditions:
This last point is of the greatest importance, if the term “terrorism is to have any legal significance whatsoever. It is missing from almost all subsequent attempts at national and EU level. The problem of local legislation Helena Kennedy also argues that:
We therefore turn to the US and UK legislation 9, which displays just the lack of principled foundations to which Kennedy refers, and which has plainly influenced the European response.10 The United States of America Charles L Ruby points out 11 that since 1983 the US Department of State (DoS) has used Title 22 of the United States Code, section 2656f(d) to define terrorism. Each year the DoS publishes a report entitled Patterns of Global Terrorism which defines “terrorism”
According to the United States Code:
It should be noted that in contrast to Judge Guillaume’s proposal, this definition makes no mention of terror. The USA’s response to the 9/11 attacks was enactment of the USA PATRIOT Act (the acronym for United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act)13. On 24 September 2001 the President issued an Executive Order (No. 13224) entitled “Presidential Order Blocking Transactions with Terrorists”. This is the list of 100 persons and entities, which it believes are connected with terrorism. All persons and entities within the US, primarily businesses, are banned from conducting any business with anyone or any entity on that list.14 The Mujahedin-e Khalq, known as the MEK, was designated a “foreign terrorist organisation” in 1997 under the Anti-Terrorism and Effective Death Penalty Act 1996, and again in 2001 pursuant to section 1(b) of Executive Order 13224. On 15 August 2003 the Secretary of State amended that designation, so as to add to the designation of, “to add to its aliases National Council of Resistance (NCR) and National Council of Resistance of Iran (NCRI), in addition to the alias Peoples Mujahedin of Iran (PMOI).15 The Report on Patterns of Global Terrorism for 2003, published on 29 April 2004, lists the MEK (PMOI) as a “terrorist organisation”16, continuing that, “the group’s worldwide campaign against the Iranian Government stresses propaganda and occasionally uses terrorism”. A series of incidents are described, and the allegation is repeated that, “Before Operation Iraqi Freedom, the group received all of its military assistance, and most of its financial support, from the former Iraqi regime.” These allegations are strongly refuted by the PMOI. A number of cases concerning the PMOI and NCRI have been argued in United States Court of Appeals for the District of Columbia, Peoples Mojahedin Organisation of Iran v Department of State and Madeleine Albright decided on 25 June 1999 17, National Council of Resistance of Iran v Department of State decided in 2001 18, Peoples Mojahedin Organisation of Iran v Department of State and Colin Powell 19, decided on 9 May 2003, and National Council of Resistance of Iran v Department of State and Colin Powell 20, decided on 9 July 2004.21 In the first PMOI case, the United States Court of Appeals for the District of Columbia Circuit decided that it could not set aside the designation of the PMOI despite saying that,
In the first NCRI case there was a partial victory for the plaintiff. The court found that the Secretary of State must afford due process to organisations before they are designated as Foreign Terrorist Organisations, such as notice that the designation is impending and an opportunity for the organisation to present evidence in its favour. In the PMOI case decided on 9 May 2003, the PMOI sought review of the designation as a foreign terrorist organisation. This petition, which was PMOI’s third such, was denied. The Court recalled that in order to designate the foreign organisation as terrorist, the Secretary of State must make three findings:
At pages 9-10 of the judgment, the Court reviewed a number of actions which by its own admission the PMOI had taken – all attacks on the Iranian state and its armed forces – and held that “were there no classified information in the file, we could hardly find that the Secretary’s determination that the Petitioner engaged in terrorist activities is “lacking substantial support in the administrative record as a whole”. The Court refused to look at matters of foreign policy (p. 10).
In the second NCRI case, the petitioner sought to show that the Secretary of State had been wrong to consider the NCRI an alias of the MEK. The Court once again denied the petition, accepting a report by the FBI. It is plain in our view that the US legislation is a recipe for arbitrary, secretive and unjust executive decision-making, shielded from the scrutiny of the courts, and equally removed from most public debate precisely because of the ‘chilling’ effect of the use of the term ‘terrorism’. The United Kingdom The Terrorism Act 2000 provided the broadest definition in UK history of “terrorism”, and, by an Order made on 29 March 2001(Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (“the Order”)), the first under the Act, 21 organisations were proscribed through provisions which allow for the banning of organisations which the Home Secretary believes are involved in terrorism, or promote or encourage terrorism.22 There are severe penalties for membership of or support for such proscribed organisations, although it is notable that no-one has been prosecuted for association with or support for the PMOI. On the contrary, numbers of members of the House of Commons and the House of Lords have demonstratively associated themselves with events protesting about the treatment of the PMOI. The definition contained in the Act is as follows:
This definition has been subjected to fierce criticism. Statewatch said that the “New definition of "terrorism" can criminalise dissent and extra-parliamentary action.”23 We also note that it fails to define what precisely it is about “terrorism” which adds anything to ordinary serious crimes. Influencing a government, or even intimidating the population cannot do the job. Otherwise “Age Concern” (which campaigns for the elderly) or football hooligans must be terrorists. In this way the term becomes completely meaningless. How, we ask, can it then be possible to move to proscribe organisations with any degree of legal certainty, adherence to the rule of law, or proportionality?24 The Order was debated in the House of Commons on 13 March 2001 and in the House of Lords on 27 March 2001. In the debate in the House of Commons, the then Home Secretary, Jack Straw stated that in considering which organisations should be proscribed, he took into account a number of factors including:
It should be noted that the 21 proscribed organisations included Mujaheddin e Khalq. There are now 25 such organisations, including MEK.26 In relation to the PMOI, the Order states as follows:
During the two debates in Parliament, many MPs and Peers protested at the inclusion of the PMOI in the list of 21 organisations in the Order. There was also much concern at the inherent unfairness of 21 different organisations being placed in the Order, with little indication of the reasons for their selection, and MPs and Peers being asked to either accept or reject the entire list. The Liberal Democrat spokesman, Sir Menzies Campbell stated in the House of Commons debate:
Jeremy Corbyn, MP stated:
With respect to the complaint about the unfairness of placing 21 organisations in a single list, the PMOI point to the fact that in September 2002 (after the PMOI had been proscribed), 331 MPs, a Commons majority, and 122 Peers declared in a statement,
During the same debate in the House of Commons, Lord Corbett of Castle Vale, then an MP, stated:
During the House of Lords’ debate, Lord Archer of Sandwell QC proposed an amendment to the Order with an insertion at the end as follows,
Lord Archer of Sandwell QC went on to state:
Other members of the House of Lords voiced similar sentiments. On 21 October 2002 a Government Minister, Baroness Symons, said, in answer to a parliamentary question:
The Terrorism Act 2000 was followed by the Anti-terrorism, Crime and Security Act 2001, which introduced indefinite detention without trial for foreign nationals. On 17 April 2002 the High Court (Mr Justice Richards) gave judgment in an application to apply for judicial review by the PKK, PMOI, Nisar Ahmed and others against the Home Secretary.34 The applicants challenged the proscription of organisations under the Terrorism Act 2000, and the compatibility of the 2000 Act with the Human Rights Act 1998. The power to add an organisation to the list was given in Section 3 (3-5) of the 2000 Act, and “an organisation is concerned in terrorism if it
The Act provides for an application to the Home Secretary to remove an organisation from the list. If that application is refused, the applicant may appeal to the Proscribed Organisations Appeal Commission (“POAC”). According to the judgment, an application for deproscription of the PMOI was made on 4 June 2001, and was refused on 31 August 2001. The refusal was appealed to the POAC. Paragraphs 23 to 36 of the judgment set out in detail the PMOI complaints against the proscription of “Mujaheddin e Khalq”, Lord Lester QC and Rabinder Singh QC, representing the PMOI, took a number of HRA points:
The Court’s decision was that the application for leave should be refused, on the grounds that the applicants, especially the PMOI, should complete their appeal to POAC. However, Mr Justice Richards stated that in his view the submissions made by the Secretary of State did not meet the real thrust of the challenge to the regime of penalties under the Terrorism Act and that the claims made by the PMOI, as set out above, were arguable. In the end the POAC proceedings were withdrawn, after the UK and US decision to bomb the PMOI camps on the Iranian border in April 2003. The PMOI state that this was despite their having taken a series of steps to ensure that they did not become a party to the war. Nevertheless, with respect to the PMOI and their advisers, we consider that it would have been preferable to have pursued the POAC proceedings, not least because of the possibility of appeal to the higher courts of the UK, and, ultimately, the European Court of Human Rights. The – doubtless inadequate - mechanisms provided by the 2000 Act ought to be tested in the most rigorous manner. Human rights standards: the Council of Europe On 15 July 2002 the Council of Europe promulgated “Guidelines on Human Rights and the Fight against Terrorism”35, adopted by the Committee of Ministers on 11 July 2002. The Guidelines36 reaffirm the obligation on States to protect everyone against terrorism, but go on to reiterate the obligation to avoid arbitrariness, the requirement that all measures taken by States to combat terrorism must be lawful, and the absolute prohibition of torture. They also set out a framework which particularly concerns the collecting and processing of personal data and for measures which interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and compensation of victims. Professor von Schorlemer recommends that
Further steps are being taken in the context of the Council of Europe. The Steering Committee on Human Rights (CDDH) is planning to hold a seminar in 2005 in order to assess the extent to which the Council of Europe Guidelines on human rights and the fight against terrorism are applied in member states three years after their adoption by the Committee of Ministers. This seminar would bring together national anti-terrorism and human rights experts. According to the outcome of the seminar, the CDDH will decide whether to issue a recommendation encouraging member states to comply with the guidelines.
This same topic will be tackled during the third roundtable of European National Institutions’ with the Council of Europe (which is to be held in Berlin in November 2004). NHRIs will therefore present their recommendations on this subject to the CDDH and will be involved in the seminar.38 We note that although the Guidelines are in many ways admirable, they do not deal with problems of proscription or blacklisting, such as affect the PMOI. However, it is clear that the measures adopted by the UK appear to be incompatible with guidelines II and III
The provisions of the Terrorism Act 2000 lack precise definition, and are devoid of appropriate (which must mean effective) supervision. The European Union The meeting of the European Council at Tampere in October 1999 agreed a list of measures to be adopted to develop the EU’s ‘Area of Freedom, Security and Justice”.39 Following the events of 9/11, the EU accelerated its work programme, and, following UN Security Council Resolution 1373 of 28 September 2001, adopted under Chapter VII, the General Affairs Council of the EU decided to respond by way of a coordinated response, based on Article 11, 15 and 29 of the Treaty on European Union (TEU) and Articles 60, 301 and 308 of the EC Treaty. Article 15 of TEU envisages Common Positions on matters of concern. Thus, UNSC Resolution 1373 was implemented by two Common Positions of 27 December 2001, 2001/930/CFSP40 on combating terrorism, and 2001/931/CFSP on the application of specific measures to combat terrorism.41 Article 1(3) of the Common Position 2001/931 /CFSP defined “terrorist act” as
The ‘flagship’ measure was the Council Framework Decision of 13 June 2002 42, setting out a definition of terrorism 43, closely followed by the Framework Decision on the European Arrest Warrant 44. These measures have been accompanied by the creation and implementation of EU ‘blacklists’ of suspected terrorists and terrorist groups, designed to freeze the assets of the targets, and to criminalise financial support to them.45 Article 1(1) of the Framework Decision sets out the definition of terrorism.46
Article 2 defines “terrorist group”.
The latest version of the blacklist is Council Common Position 2004/500/CFSP of 17 May 2004, updating Common Position 2001/93 1/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2004/309/CFSP. Part II of the Annex to this documents contains the list of groups under Common Position 2001/931/CFSP. No 23. is “Mujahedin-e Khalq Organisation (MEK or MKO) [minus the ‘National Council of Resistance of Iran’ (NCRI)] (a.k.a. The National Liberation Army of Iran (NLA, the militant wing of the MEK), the People's Mujahidin of Iran (PMOI), Muslim Iranian Student's Society)”47
Iain Cameron has analysed the way in which individuals and groups may be included in the list: “In concrete terms, one or other state, or group of states, takes the initiative to propose a particular person or group for inclusion.”48 He identifies a number of problems with the blacklisting criteria.49
On or around 15 April 2003, and following the bombing of the PMOI bases, the US/Coalition forces signed an ‘Agreement of Mutual Understanding and Coordination’ with the PMOI/NLA. This agreement allowed the PMOI/NLA to keep their weapons in order to defend themselves from attacks by the Iranian regime and its agents.51 On 10 May 2003, it was announced that the parties had reached an agreement whereby the PMOI and NLA would “disarm and consolidate”. Announcing the agreement, General Ray Odierno, commander of the US Army’s Fourth Infantry Division, stated, “I would say that any organisation that has given up their equipment to the Coalition clearly is cooperation with us, and I believe that should lead to a review of whether they are still a terrorist organisation or not. 52 The present position with the PMOI/NLA personnel in Iraq, as reported by the New York Times on 27 July 2004, is that they have been granted ‘protected persons’ status under the Fourth Geneva Convention. It reported senior American officials as stating that after a 16 month thorough investigation, which included extensive interviews of the PMOI/NLA personnel by the State Department and the FBI, they had found no upon which to bring any charges against the group.53 Challenging EU blacklisting As we have shown in part one, above, the absence of a clear or agreed definition of “terrorism”, “terrorist”, “terrorist act” or “terrorist group”, etc., means that there is uncertainty in the application of any law centring on these terms, and a manifest risk of arbitrary, in particularly politically motivated abuse of such law. Three clear dangers stand out.
The first issue raises the question of when the use of force by non-state actors is lawful under international law. There is no clear answer to this question - but that merely underscores the need for caution. The second issue raises the question of what can be said to constitute “support” for a terrorist organisation. Very often, in countries in which there are serious political tensions, or serious repression, there will both be organisations using violence which claim that their use of violence is legitimate, and political groups which espouse similar aims to the violent groups, but which deny that they are in hock with those groups. Here too the lines are difficult to draw: many groups, for instance, collect money “to support the families” of people imprisoned for taking part in a violent struggle, while denying that this money is used to support the violent groups to which the prisoners belong as such. The third issue is a general, age-old problem. As Langbein has put it (with regard to the creeping extension of the use of torture in the Middle Ages from, first, heretics, to, later, all deemed unworthy of the full protection of the law):
There is a long history of even supposedly democratic, Western States over-reacting and attacking peaceful protest under the guise of fighting unlawful politically-motivated violence - from the criminalisation of “the wearing of the green” by Irish nationalists in the 1800s, to the violent suppression of peaceful civil rights marchers in the USA and Northern Ireland in the 1960s, to the prosecution under anti-terrorist legislation of non-violent political activists in 1970s Germany for calling for better treatment of “Red Army Faction” prisoners. This makes it essential that there are strong safeguards in place to check, in all senses of the word, the way in which national and international authorities use the power to blacklist organisations and individuals. In this part of our opinion, we will first briefly note, at 2, the general effects of blacklisting on an organisation. We will then, at 3, discuss the substantive and procedural human rights issues which this raises under the European Convention on Human Rights (ECHR). At 4, we will address the implications of international blacklists, with reference to relevant general principles of international law (whereby we will re-visit the Council of Europe Guidelines on Human Rights and the Fight Against Terrorism and note the correspondence between these guidelines and the Convention requirements). Finally, at 5, we will submit an early evaluation of the situation, based on these international and European standards; briefly discuss the remedies which are (or may be) actually available to PMOI in national and international proceedings; and set out some tentative recommendations. The general effects on organisations of being blacklisted The placing of an organisation on a UN- or EU blacklist of suspected terrorist groups has two main effects:
Cameron points out that Resolution 1452 of 20 December 2002 provides for the possibility of releasing frozen assets for humanitarian reasons, such as providing living expenses for individuals. However, this only allows for the release of some minimum funds for personal survival: it does not change the “devastating” effects of an order on wider - in particular, political - activities of individuals, and it does not benefit organisations or groups. For the latter, being placed on a blacklist is indeed devastating - and intented to be devastating: the very purpose of the list is to stop the organisations or groups from operating in any way. The rights and freedoms of blacklisted organisations under the ECHR Clearly, being placed on a terrorist blacklist deeply affects an organisation. The question arises however of whether it affects the organisation’s “human” rights and fundamental freedoms, i.e. whether groups and organisations can, as such, actually enjoy such rights, or whether human rights are limited to living individuals (such as the members of such organisations). It is clear from the case-law of the European Commission and Court of Human Rights that while some rights (such as the right to life and the right not to be subjected to torture) are by their nature limited to “natural persons” (i.e. living individuals), many of the rights guaranteed by the European Convention on Human Rights also apply to organisations, associations, groups and even companies, and that such entities can invoke the Convention in respect of matters affecting their rights and interests, and to defend the common rights and interests of their members. Rights that have succesfully been invoked by such entities include, in particular: the rights to freedom of assembly and association (Art. 11 ECHR), freedom of expression (Art. 10), and freedom of religion (Art. 9). The Convention furthermore expressly stipulates that “legal person[s]” are also entitled (like natural persons) to “the peaceful enjoyment of [their] possessions”, i.e. to the right to property (Art. 1 of the First Protocol to the Convention). To the extent that legal entities are entitled to the protection of the substantive provisions of the Convention, and Arts. 9 – 11 in particular, they are furthermore also entitled to invoke the right to an effective remedy (Art. 13) and freedom from discrimination (Art. 14). More specifically, and as further discussed below in relation to the freezing of assets, because any interference with property rights by its very nature affects the “civil rights and obligations” (droits de caractère civil) of the rights owners or -holders, the latter are entitled to a fair trial in any “determination” of these matters (Art. 6(1)). There can be no doubt that the blacklisting of an organisation and the “devastation” this causes for it, seriously interferes with the above-mentioned substantive rights. In particular, it severely limits - indeed, seeks to prevent altogether - the exercise, by the organisation, of that organisation’s right to freedom of association and assembly, and its right to the peaceful enjoyment of its possessions. In addition, it will make it difficult if not impossible for the organisation to effectively exercise its right to freedom of expression: it will not be able, for instance, to finance a magazine, or a leaflet, or a meeting of its members and supporters. In the sub-sections below, we will briefly examine the Convention requirements in relation, first, to the rights to freedom of association and expression of a blacklisted organisation, and then, to the right to the peaceful enjoyment of its possessions of such an organisation. We will then turn to the (as will be seen, closely related) procedural requirements of the Convention, which are the focus of this part of the opinion. In the final sub-section, we will note the close correspondence (not surprisingly) between the Convention requirements and the standards set out in the Council of Europe Guidelines on Human Rights and the Fight Against Terrorism. ECHR standards to be applied to restrictions on the substantive rights to freedom of association and expression of a blacklisted organisation As noted above, the rights to freedom of association and freedom of expression are set out in Arts. 10 and 11 of the ECHR. These articles are similarly structured: they set out, in their first paragraph, the right to be protected; and they then clarify, in their second paragraph, how, and to what extent, the right in question may be limited. The European Court of Human Rights has developed a consistent, standard approach to the application of these provisions (and to Arts. 8 and 9, which are similarly structured). Here, it may suffice to note that if a certain matter comes within the ambit of one of the provisions concerned (i.e., here, of Arts. 10 or 11), and if if can be shown that the right that is protected by the provision in question is “interfered” with, that then the State that causes the interference in question must justify the interference. As noted above, there is no doubt that the blacklisting of an organisation interferes with (limits, indeed largely destroys) the right of the organisation to freedom of association and expression. This means that any State blacklisting an organisation must prove the following if its action is to be compatible with the Convention:
The first issue is not as simple or straight-forward as it seems: the requirement that an interference is based on “law” has been given a substantive (rather than a mere formal) meaning. It signifies adherence to the wider principle of the “rule of law”. Specifically, a State interfering with a Convention right must show that the measure was authorised in accessible (published) legal rules which are formulated with sufficient clarity and precision to (i) enable any organisation which may be affected by them to regulate its conduct in such a way as to conform to the rules, and (ii) prevent the arbitrary use of the legal powers in question. As we have seen in the first part of this Opinion, this can often be said not to be the case with regard to the rules relating to “terrorism” and blacklisting - with even the term “terrorism” (etc.) being so ill-defined as to make it impossible to predict what activities exactly are, and are not, covered by it.
As for the second requirement of a “legitimate aim”, the second paragraphs of Arts. 10 and 11 set out the aims concerned in fairly broad terms, such as national security, public safety or the prevention of disorder or crime. It can be argued that a State should be more specific in the imposition of any particular measure, such as the freezing of assets; that merely claiming that the action is aimed at fighting “terrorism”, without clarifying the more specific purpose of a freezing order, can be said to be insufficient. In practice, the Court is likely to accept such claims, at least initially, and focus its assessment on the “necessity” and “proportionality” of the measure in the particular case. In manifest cases of abuse, a challenge could however be made to a claim that a freezing order, or criminalisation of support for a blacklisted organisation, serves any legitimate aim. In assessing whether a State has discharged the onus of proof in the last respect (i.e. that a measure was “necessary in a democratic society”), the Court grants States a so-called “margin of appreciation”, a measure of discretion, in that it leaves it up to the States to make the first assessment of what is “necessary” and “proportionate” in a particular case. However, this “margin of appreciation” goes hand in hand with European supervision: States must exercise their political judgment within a certain range. The width or narrowness of this range varies, depending on the more or less “objective” or “subjective” nature of the issue at hand and the existence of other international rules or -guidelines - such as, on the one hand, the Security Council Resolutions and European Common Positions discussed in part one of this Opinion and, on the other, the Guidelines on Human Rights and the Fight Against Terrorism. ECHR standards to be applied to the freezing of the assets of a blacklisted organisation The right to “the peaceful enjoyment of [one’s] possessions” is set out in Article 1 of the First Protocol (FP) to the European Convention on Human Rights. This provision is structured somewhat differently from Arts. 8 – 11 - but in practice, the Commission and Court have adopted a very similar approach to their assessment of cases under this article. Specifically, under Art. 1 FP, as under those other rights, the first, preliminary question that arises is whether the right at issue in any particular case falls within the ambit of the right. After that, the question must again be addressed whether the right in question has been interfered with (i.e. whether someone was “deprived” of his property or whether such property was subjected to measures of “control”). And finally, if so, the question is whether the interference was justified. As far as the preliminary question is concerned, the European Court of Human Rights has said in the Marckx case: “Article 1 [of the First Protocol] is in substance guaranteeing the right to property.”56 The scope of Article 1 First Protocol is therefore wide. For the purpose of the present Opinion, it suffices to note that, in view of the case-law of the organs of the Convention, title to assets held in bank accounts undoubtedly constitutes a “property right” in the sense of Article 1 First Protocol. The question then arises as to when this right may be restricted. The text of Article 1 First Protocol speaks of “depriv[ation] of … possessions” and “control [of] the use of property”. However, the organs of the Convention have discerned in the text a series of more general “rules”. As the Court put it in the case of Sporrong and Lönnroth v Sweden:
Perhaps not surprisingly, this approach to Article 1 First Protocol is markedly similar to the general approach by the Strasbourg organs to the other substantive provisions of the Convention - as described in the previous sub-section with reference to Arts. 10 and 11: first, one has to establish whether there has been an “interference”; and then, whether the interference was justified. In assessing whether an interference with a property right is compatible with the Convention, the Convention organs apply the so-called “fair balance” test, first set out in the Sporrong and Lönnroth case in the following terms:
In fact, although the text of Article 1 First Protocol allows for much more complex (not to say convoluted) distinctions:
The “fair balance” test is very similar to the “necessity” and ”proportionality” test applied under Article 8 – 11 of the Convention, as discussed with reference to Arts. 10 and 11, above. However, there are some special features. First of all, States are granted a very wide “margin of appreciation” with regard to the imposition of restrictions on property rights. Generally speaking, this margin is wider than the margin applied under other Convention articles. Indeed, the main question in this regard is often whether the measure in question is provided for in domestic law, and whether that law allows the right kind of considerations to be taken into account.60 The wide “margin of appreciation”, in other words, is not unlimited. The Strasbourg organs will generally accept a State’s assessment of the various factors to be taken into account - but an assessment there must have been, a “balancing” must have taken place. For the purpose of the present Opinion, it is of crucial importance to note that a legal rule, or an administrative practice, which does not allow for a balancing of public and private interests, but which imposes restrictions on the property rights of certain organisations without any consideration of the interests of the private persons or entities vested with those rights, is incompatible with the Convention.
Procedural guarantees Moreover, and this brings us to the central issue in this part of our Opinion, the assessment by the national authorities of the need for an interference with a property right must be subject to procedural guarantees: there must be an avenue of appeal from the decision of a national authority to interfere with someone’s property rights. While the procedural protection of rights is also a separate issue under the Convention, discussed with reference to the present case in the next sub-section, it is important to note the particularly close link between the availability of such remedies and appeals over interferences with property rights and the question of whether or not the interference was justified: “The applicants succeeded in the Sporrong and Lönnroth case because there was no procedure by which they could challenge the long-continued application of the expropriation permits which were blighting their property nor were they entitled to any compensation for the loss that this situation had brought about.”61 By contrast:
Often the “process” in question will involve the “determination of a civil right”, in which case the procedure should comply with the requirements of Article 6(1) of the Convention, as further discussed in the next sub-section. We may add that in any case the process must, moreover, be “effective”, as required by Art. 13 of the Convention, also discussed below. As just noted, in particular as concerns Article 1 of the First Protocol, the European Court of Human Rights often includes the question of the procedural protection of a right in its assessment of whether the substance of that right is adequately ensured. Procedural issues can also relate closely to the so-called “margin of appreciation” doctrine. In particular, the Convention organs do not want to become a “fourth instance” (“quatrième instance ”) of appeal from national judicial decisions.63 Basically, while the width of the margin of appreciation varies from case to case and context to context,64 and while some matters are subjected to closer review than others, the Court will be loath to intervene with domestic decisions concerning the justification of interferences with Convention rights, if these decisions were reached or substantively reviewed in judicial proceedings in which all the relevant matters were fully considered and given their proper weight. Conversely, an absence of procedural protection will lend credence to a claim that an interference is not justified - or at least, the Respondent Government will find it difficult to show that the various interests were indeed carefully balanced. Moreover, the Convention lays down express requirements concerning the procedural protection of the rights enshrined in it, in two ways. First of all, and at the most basic level, Article 13 stipulates that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”. Secondly, Article 6(1) requires, more specifically, that “in the determination of his civil rights and obligations or on any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”65
To the extent that blacklisting of an organisation interferes with (indeed, effectively renders impossible) the exercise of the rights to freedom of association and expression of the organisation in question (as discussed above), the organisation is thus entitled to the procedural protection of Art. 13. The European Court of Human Rights has summarised the main principles it applies in this regard as follows:
The first principle is of particular importance; it includes a number of more specific requirements. First of all, it is clear that the Court considers a judicial remedy to be the best option. States should show why a judicial remedy is not made available. If a State does not provide a full judicial remedy, the alternative must be as close as possible to it; the remedy must have some of the crucial trappings of a court. The arbiters, if they are not judges, should at least be impartial and, if not granted full judicial independence, should still be manifestly free from influence by the executive. The procedure should be fair and allow a victim an effective opportunity to challenge the interference in question. It also follows from the first principle that the authority in question must be able to review the substance of the case.67 It must be able to review the legality and the necessity of any interference, to decide on the adequacy or otherwise of the reasoning underpinning the interference, and to review the factual basis for the interference. As far as the present issue is concerned, this means in our opinion that the decision to include an organisation on a blacklist must be subject to full remedial proceedings: the organisation must be able to challenge the designation of it as a “terrorist organisation”, and the factual basis for that designation, in effective and fair proceedings (preferably a court). The dictum of the Court in respect of Art. 6 (discussed below) that “a determination on questions of both fact and law cannot be displaced by the ipse dixit of the executive”, in our view also applies to remedies under Art. 13.
Finally, the review body must be able to grant “appropriate relief”:68 its rulings should be binding on the State (subject to relevant appeal proceedings). A merely advisory body cannot provide an “effective remedy”. More importantly, any “deprivation of possessions” or “control [of] the use of property” by a State must be challengeable in judicial proceedings fully conforming to the “fair trial” requirements of Art. 6 ECHR. As Harris, O’Boyle and Warbrick put it, with reference to the case-law: “… the right to a fair trial in Article 6 applies to the determination of ‘civil rights and obligations’. This is a term with an autonomous Convention meaning that has been interpreted as including pecuniary rights. The coherence of the Convention as a whole demands that the autonomous concept of ‘possessions’ in Article 1 of the First Protocol be no less a category than the concept of pecuniary rights for the purposes of Article 6: the reasoning about the essence of the interest measured by its nature and importance to an individual should apply to its formal protection (Article 6(1)) and its substance (Article 1, First Protocol) alike. The minimum in each case is that the applicant shows that he is entitled to some real, if yet unattrributed, economic benefit.”69 For the present case, it suffices that “freezing orders” undoubtedly affect the property rights, and thus the civil rights (dro its de caractère civil), of the blacklisted organisations concerned - and that these must therefore be able to challenge such orders in proper courts, in full and fair judicial proceedings in which the relevant matters can be argued in substance.70 Specifically, the courts must be regular courts, and the judges regular, independent and impartial judges; and the procedure must ensure “equality of arms” to the parties.71 Crucially, moreover, in proceedings covered by Art. 6(1), the court must be able to address the full substance of the issue. In the present context, this means that the court must be able to assess the lawfulness (in a Convention sense), as well the factual basis and reasonableness of the designation of a particular organisation as “terrorist”. Although certain modifications may be made to trial proceedings involving national security or terrorist matters, States can not fully “hide” the purported evidence in support of a freezing order behind the veil of national security or the need to protect sources or intelligence.72 This is made clear in the case of Tinnelly & Sons Ltd. and others and McElduf and others v. the UK.73 The case concerned decisions by the Northern Ireland Electricity Services (NIE) not to grant work to certain firms in the province on the basis of security considerations, and the limitations placed on the Fair Employment Agency’s and the courts’ reviews of these decisions. These limitations resulted from a certificate issued by the Secretary of State for Northern Ireland which, by law, constituted “conclusive evidence” of the fact that the refusal to grant the work was “done for the purpose of safeguarding national security or of protecting public safety or public order”. The Court found that that the issue by the Secretary of State of [conclusive] certificates constituted a disproportionate restriction on the applicants’ right of access to a court or tribunal, and that there had been a breach of Article 6 § 1 of the Convention. The detail of the Court’s decision is well worth studying. In our opinion, blacklisting an organisation and freezing its assets, without granting the organisation the right to challenge this blacklisting and freezing, in a court fully satisfying the requirements of Art. 6(1) ECHR, in proceedings in which the factual and legal basis for the blacklisting and freezing is properly and fully, judicially examined, violates the right of access to court as guaranteed by that provision of the Convention. The Council of Europe Guidelines on Human Rights and the Fight Against Terrorism Before ending this section on the requirements of the European Convention on Human Rights, it is useful to point out that these requirements are clearly and expressly reflected in the Council of Europe Guidelines of the Committee of Ministers on Human Rights and the Fight Against Terrorism,74 already mentioned. First of all, in line with the remark of the Court that safeguarding national security concerns need not involve a denial of justice, the Committee of Ministers: “[recalls] that it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law;” and “[reaffirms] states’ obligation to respect, in their fight against terrorism, the international instruments for the protection of human rights and, for the member states in particular, the Convention for the protection of Human Rights and Fundamental Freedoms [i.e. the ECHR] and the case-law of the European Court of Human Rights” (Preambles (d) and (i)) More specifically, the Guidelines stipulate the following basic principles of direct relevance to this Opinion:75 II Prohibition of arbitrariness All measures taken by states to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision. III Lawfulness of anti-terrorist measures 1. All measures taken by states to combat terrorism must be lawful.
2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. XIV Right to property The use of the property of persons or organisations suspected of terrorist activities may be suspended or limited, notably by such measures as freezing orders or seizures, by the relevant authorities. The owners of the property have the possibility to challenge the lawfulness of such a decision before a court. These principles clearly echo the Convention and the case-law of the European Court of Human Rights in relation both to the substantive articles (Arts. 10 and 11 of the Convention and Art. 1 of the First Protocol) and the articles requiring procedural protection (Art. 6 and 13 of the Convention), discussed above. In particular, they recall the requirements relating to “law” which seek to counter arbitrariness, and those requiring that all restrictions on fundamental rights are “necessary” and “proportionate” to a clearly-defined “legitimate aim”. They also expressly affirm that it must be possible to challenge freezing before a court. The applicability of the Convention standards and -procedures to international blacklists As noted in the first part of this Opinion, the freezing orders and other measures imposed on the PMOI were issued not on the mere whim of national governments, but in response to - indeed, those governments would argue, in fulfilling a duty to implement - resolutions of the Security Council and Common Positions adopted by the EU Council. The first question that arises is whether this affects the application of the standards derived from the European Convention on Human Rights, set out in the previous section. A second issue is who should apply those standards: national courts, the European Court of Justice in Luxembourg, and/or the European Court of Human Rights in Strasbourg, and in what kind of proceedings? It is important to keep these matters clearly separated and we will therefore discuss them separately below. As to the possible policy choices this leaves affected organisations in general, and the PMOI in particular, we will address those in the final section (section 5) of this part of our opinion. On the first point, the answer is absolutely clear: the Convention requirements, set out above, apply to the blacklisting of organisations and the issuing of freezing orders by Member States of the EU, irrespective of the fact that (those States would argue) they were required to do so by virtue of the Common Positions and the UN Security Council Resolutions. No-one - not the European Commission, nor as far as we know any of the EU Member States - disputes this point. To the extent that some argue that the Strasbourg Court should decline jurisdiction in some matters dealt with under EC- or EU law (as discussed under the next heading), they do so on the basis that (they claim) the EC/EU system provides “equivalent protection” to the Convention because the Convention is, effectively, part of the Community- and Union legal orders. They accept that the standards of the Convention, as developed by the European Court of Human Rights, must be respected by the EC/EU institutions and the Member States when acting in the implementation of EC- or EU law and, where relevant, applied in full by European Court of Justice (including the Court of First Instance). An organisation such as PMOI is thus without doubt entitled to be treated, by the EC, the EU, and the Member States, in full accordance with the standards we have adduced. The only complication that arises - and it is a serious complication, albeit not one of principle - is who has jurisdiction in this regard. Jurisdiction of the national courts of the EU Member States We have shown that the Convention requires that there be a judicial process in the States that are Party to the Convention in which the blacklisting of an organisation and the freezing of its assets can be challenged, and that such proceedings must not just offer some marginal review of the legality and necessity of these measures, but must address both the question of whether the rules on which the measures are based are “law” in the Convention sense (i.e. not too vague and open to arbitrary use, as we feel they are), and the underlying factual reasons for these measures. It is clear from the Tinelly judgment that States can (by law) modify the normal judicial process to take account of the special features of terrorism - but such modification must be proportionate to the aims served and, crucially, they may not “restrict or reduce the access [to a proper judicial process] left to the individual [or organisations] in such a way or to such an extent that the very essence of the right is impaired.” (para. 73). In some countries, such as the UK, the State has provided a specific remedy - in casu, the The Proscribed Organisations Appeals Commission (POAC), established by the Terrorism Act 2000. In other countries, organisations may be able to turn to the ordinary courts (which will often be the ordinary administrative courts). There are two issues here. First of all, if the avenue of redress provided is not the normal, full judicial process (as in the UK, which leaves these matters to POAC, subject to review by the ordinary courts), the question arises of whether the departures from the normal rules of judicial review of executive decisions are proportionate to the aim of protecting national security/fighting terrorism. Doubts could be raised, in particular, about the independence and impartiality of the adjudicators. The second issue can arise both in respect of proceedings in special commissions and in the ordinary (administrative or other) courts. This is that the review performed by the tribunal in question is only marginal, and (largely) leaves untested the assertions (ipse dixites) of the executive. This could occur on two grounds. It can be that a national tribunal or court feels that it cannot look behind the reasons for the measures because they are required by a binding Common Position (and/or Security Council Resolutions). Or it can be that such bodies give excessive credence to such assertions by the executive because the matters touch on national security and terrorism. The latter is exactly what happened in the case in which the PMOI sought to challenge the fact that it was designated as a “foreign terrorist organzation” by the US Secretary of State under Section 302 of the Antiterrorism and Efective Death Penalty Act (AEDPA). In that case, the US (Federal) Court of Appeals denied the petitions for judicial review because it felt it could not examine the factual basis for the Secretary of State’s designation:
We submit that, by contrast to the position taken by the US Court of Appeals, in Europe the Convention demands that national courts (or if needs be and if provided for by law, special, but still judicial, tribunals or commissions) do examine the “law” and the underlying facts. In our view, in EU Member States in which the Convention is directly applicable (which is almost all of them), and especially in those in which the Convention is accorded constitutional, quasi-constitutional or even supra-constitutional status (as in the Netherlands and some other countries), and in countries in which the national constitution provides for similarly strong judicial protection against executive diktat (such as Germany, where there is also historical judicial opposition to the idea that the EC or the EU can override the national constitutional requirements), the blacklisting and freezing orders issued under the EU Common Positions should be challenged vigorously in domestic courts (tribunals or commissions) on the basis that they contravene the Convention standards discussed above, and in particular the requirement of “law” and non-arbitrariness. If a national court were to refuse to apply these Convention standards, and adopted a minimalist approach on the US Court of Appeals lines, or decline jurisdiction in the matter altogether, that in itself would be a violation of Art. 6(1) by the States in which this occured (it being an undisputed fact that States are responsible for violations of their Convention obligations even if these arise out of actions of their courts or judges over which the governments of those States have no control). As discussed under the next heading, in our opinion this would open the possibility for a challenge of such rulings, and thus of the blacklisting and freezing orders, to the European Court of Human Rights under Art. 34 of the Convention. Jurisdiction of the European Court of Human Rights The simple answer to the second question, whether the European Court has jurisdiction to assess the blacklisting of organisations and the freezing of their assets under the Convention, even though that blacklisting and freezing is required by an EU Common Position, is “Yes”. Specifically, the Court held in the Matthews case that States Party to the Convention remain responsible for guaranteeing the rights in the Convention even when they have (voluntarily) transferred competence for the relevant matter to an international organisation, in casu the EU, by treaty.77 To do otherwise would create a clear “escape hole” from the Convention which the Court is not prepared to accept: it recalled its dictum (repeated in several cases) that “the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective.”78 In implementing even a binding Common Position (such as the one on Specific Measures), States must still put their Convention obligations first. Furthermore, the Court held in that case that it had jurisdiction in the matter. We submit that the same applies here: that the only body that can ultimately determine whether a measure adopted by a State Party to the Convention (on its own motion or because of its EC- or EU obligations) is in accordance with the Convention, and/or whether the State provides for appropriate (Convention-conform) procedural protection in the relevant matter, is the European Court of Human Rights.
The Legal Service of the Commission of the European Communities argued against this view in a third-party intervention in a case still pending before the European Court of Human Rights, the case of Bosphorus Airways v. Ireland.79 This case concerns the impounding of an aircraft on the basis of a binding EC Council Regulation implementing an equally binding Security Council Resolution, and thus raises similar issues to the ones discussed in this Opinion. In its submission, the Commission rejected the idea that the Strasbourg Court should have jurisdiction in this matter. It claimed that “equivalent protection” to the Convention standards is ensured in the Community- and Union legal orders, and that the European Court of Justice “takes over the substantive standards of the Convention, as minimum standards, as they are, without reservation and following closely the case-law of [the European Court of Human Rights].”80 The European Court of Justice therefore (in the Commission’s view) ensures in effect the same as the European Court of Human Rights would: “‘[e]quivalent protection’ is a concept relating to the means of control, not to its result.”81 The Commission therefore believes that: “[T]he member States of the European Community are responsible for acts of Community institutions and in particular for he procedure followed in the ECJ [only] in the sense that they must ensure that provision is made for equivalent protection of fundamental rights in that court. So long as such protection exists in general ... the Member States cannot be held responsible in individual cases for such acts, and in particular not for the manner in which the ECJ assesses and decides issues of fundamental rights in individual cases.”82 We emphatically reject this line of argument. The fallacy of it can be easily demonstrated by hypothetically replacing the ECJ with national courts that may be called upon to rule on fundamental rights in general, and the application of Convention standards in particular, including national highest or constitutional courts. These too generally “take over the substantive standards of the Convention, as minimum standards, as they are, without reserve and following closely the case law of [the European Court of Human Rights].” Yet no-one argues that individuals or entities should not be able to take their cases to Strasbourg because these domestic courts already ensure the required result “in general”. The latter qualification furthermore gives the game away: the Luxembourg Court does not always fully apply the Convention standards, and of course especially may not always know how to apply the Convention standards on issues which have not been fully clarified in the Strasbourg case-law. There have been several cases in which rulings of the Luxembourg Court have fallen short of subsequent judgments by the Strasbourg Court. There is also a matter of principle at stake: as we said earlier, only the European Court of Human Rights can be the final judge on how to apply the European convention on Human Rights. Our arguments have particular force with regard to second- and third-pillar EU matters (although we submit the principle also applies to the first pillar of the EU). As the European Court of Human Rights said in its admissibility decision in the Segi case:83
To argue in such a context that the ECJ offers “equivalent protection” to the Strasbourg Court in terms of both substance and effective redress is, we submit, misleading at least. We believe that the same can be said with regard to the Security Council Resolutions, even though they were adopted under Chapter VII of the Charter. They may be binding in terms of that instrument (which is of course also a treaty), but that can again not absolve a State from complying with its Convention obligations. We feel this view is supported by the fact that the right to a remedy is equally enshrined in Art. 2(3) of the main human rights treaty of the United Nations, the International Covenant on Civil and Political Rights, in terms similar to the ones used in the Convention. In particular, we submit that it cannot have been the intention of the Security Council to set aside this basic principle of the rule of law, and that, if that had been intended, the Security Council would be acting ultra vires. A fortiori, we submit that the UN Charter cannot be read in such a way as to preclude jurisdiction by the most advanced judicial system of human rights protection in the world simply because a matter was decided by the Security Council (in what is, moreover, a highly political process).
There is of course one qualification to this: the Court cannot adjudicate on a matter until and unless an applicant has exhausted all (available and effective) “domestic remedies” (Art. 35(1) ECHR), except in cases of an “administrative practice” against which national remedies are presumed to be ineffective. This reinforces our conclusion in the previous sub-section, that domestic remedies should be used urgently and forcefully. One question remains, however. This is whether the EC/EU legal rules provide blacklisted organisations and individuals with an effective remedy, or indeed perhaps several effective remedies, against the blacklisting, and if so, whether this remedy (or these remedies) are “domestic remedies” in the sense of Art. 35 ECHR. We will therefore now briefly examine those remedies, and set out our conclusions on this question thereafter. Jurisdiction of the European Court of Justice and the Court of First Instance The main theoretical avenues of redress for an organisation affected by the Common Position on Specific Measures (2001/931 /CFSP) and Council Regulation 2580/2001 are set out by Cameron, with comment as to their actual availability in practice, as follows (with some notes added, as indicated):
In effect, for external (not EU-based) groups - such as the PMOI - the Court of First Instance is the only avenue of judicial redress they have outside the Convention system.94 Cameron clearly doubts whether the CFI, or the full ECJ for that matter, can be an effective court in this respect. He feels that:
Cameron’s inclusion of the European Court of Human Rights in the above is, in our view, wrong, for reasons we will discuss in the next (and last) sub-section in this section. Here, it may suffice to say that we agree with Cameron that the EC/EU legal system does not provide an “effective” remedy to organisations such as the PMOI against their blacklisting or the freezing of their assets.
Exhaustion of remedies In our opinion, PMOI and organisations in a similar position are not required to exhaust the EC/EU remedies, noted in the previous sub-section, before being able to submit an application to the European Court of Human Rights under Art. 34 of the European Convention on Human Rights. First of all, this is because (as Cameron points out) the CFI and the ECJ are not equipped to deal with the underlying matters relating to blacklisting and the freezing of assets: they lack the expertise and special procedures that are required to adequately deal with such intelligence-related issues, and would thus be likely to adopt an unduly minimalist approach to any review they carried out, on the US Court of Appeals lines. Contrary to Cameron’s claim, we feel this cannot be said of the European Court of Human Rights itself. This is because the Strasbourg Court would not necessarily be called upon to assess these underlying matters. Rather, as discussed earlier, the Court would have to decide whether the States have made available avenues of redress which can effectively deal with such matters. We feel that that matter is manifest if (as Cameron suggests) national courts are effectively barred from considering the issues, and only the CFI and the ECJ can be called upon. The Court could, in our view, rule on the question of whether the concept of a “terrorist organisation” is sufficiently defined in the Common Positions and the Regulation to constitute “law” in the Convention sense. It can certainly find - indeed, we submit, cannot but find - that if not the EC and the EU, then certainly the States must make an “effective” remedy available to organisation such as the PMOI through which they can challenge the facts supposedly underpinning their designation as a “terrorist organisation”. We feel that there is a second line of argument against requiring blacklisted organisations to first pursue the matter in proceedings before the CFI and the ECJ. As Cameron notes, the proceedings in these courts would be directed at the EC/EU rules; they would not really concern the national measures implementing them. In such proceedings, the CFI and the ECJ would moreover be asked to rule on the compatability of those rules with the ECHR. In this context, the CFI and the ECJ can therefore not be said to constitute “domestic remedies” in the sense of Art. 35 of the Convention. Rather (as again Cameron also holds), the CFI and the ECJ must be regarded as international courts. This means that the proceedings in those fora constitute “another procedure of international investigation or settlement” in the sense of Art. 35. Applications to the European Court of Human Rights by organisations which did first pursue proceedings in the CFI and the ECJ in the present context could therefore be ruled inadmissible on that basis (Art. 35(2)(b) ECHR). It cannot have been the intention of the authors of the latter Convention that applicants would be required to pursue a remedy under Art, 35(1) which would then ipse facto rob them of their right to pursue their case before the Strasbourg Court. Therefore, in our opinion, PMOI should exhaust all domestic remedies against their blacklisting and the freezing of their assets (where these are available in the EU Member States), but it is not required to pursue the issues in the CFI or the ECJ before it can avail itself of the right to submit an application to the European Court of Human Rights. If a domestic court refuses jurisdiction over these issues because it feels that they are determined by EC/EU law without any discretion being left to the Member State in question, PMOI can (we believe) submit an application directly to the European Court of Human Rights, irrespective of whether the matter is, or is not, referred to the CFI or the ECJ. And of course (as already mentioned) if a domestic court does feel it has jurisdiction, but subjects the measures to minimal judicial review only, PMOI can also take the case to Strasbourg. Conclusions, Available Remedies and Tentative Recommendations Conclusions In this second part of our Opinion, we have reached the following conclusions:
Available Remedies
however, in our opinion:
Tentative Recommendations The considerations which we have set out above should help to provide organisations, including PMOI, which find themselves subject to blacklisting to decide what remedies to pursue. This is of course a matter for the organisation in question. However, we would (tentatively) recommend the following:
We would urge caution over pursuing cases through the
CFI and the ECJ: as we argue above (and as also concluded by
Cameron), these courts are ill-equipped to deal with the matters in
question and are likely to adopt a minimalist approach to any
judicial review they may carry out of the Common Positions and
Regulations concerned - which would (we feel) set a bad precedent
for any Strasbourg adjudication on the matter.
|
