Friday, July 31, 2009

EU Terrorist Listing in a post-Kadi world: Othman v. Council

A quick post to update on some more post-Kadi developments within the European Union (hat tip to Amaury Reyes for passing this one on): on June 11th this year, the Court of First Instance handed down its judgment in the case of Omar Mohammad Othman v. Council and Commission. The case was so similar in legal and factual context to that of Kadi that it had twice been suspended pending judgment in the later case, first at first instance and then on appeal before the ECJ.


The Council and Commission (and the UK as intervener) basically made the same arguments as they had in Kadi. With basically the same result:


83. With regard, first, to the procedure leading to the adoption of the contested regulation, it must be pointed out that the Council at no time informed the applicant of the evidence adduced against him…


85. Because the Council neither communicated to the applicant the evidence used against him to justify the restrictive measures imposed on him nor afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, the applicant was not in a position to make his point of view in that respect known to advantage. Therefore, the applicant’s rights of defence, in particular the right to be heard, were not respected…


86. In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship… between rights of defence and the right to an effective legal remedy,the applicant was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed.


89. It must, therefore, be held that the contested regulation, in so far as it concerns the applicant, was adopted without any guarantee being given as to the communication of the inculpatory evidence against him or as to his being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the applicant’s rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed.


The Court also noted that the infringement had not been remedied by the time of the judgment: the Council noted that they had made (some) efforts to do so (i.e. giving him some reasons and inviting his comments), but this had not yet been effected, and nor were they able to state when it would be. Therefore, the Court held that it had no choice but to annul the contested regulation as it applied to the applicant.


Basically the same result as Kadi; but not quite. The Council, Commission and the UK had argued strongly that, even if the Court should find in this manner and annul the regulation, it should, as the ECJ had done, maintain its effects for a period of time to allow for violations to be corrected, as “annulment with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that regulation and which the Community is required to implement” (para. 79).


This, however, the Court declined to do:

95. In the circumstances of the case, there are no grounds for allowing the request made at the hearing by the Council and the interveners seeking to have the effects of the contested regulation maintained for a short period pursuant to Article 231 EC.

96. The period already elapsed since the delivery of the judgment in Kadi on appeal, on 3 September 2008, far exceeds the maximum period of three months from the date of delivery of that judgment considered reasonable by the Court of Justice in order to allow the Council to remedy the infringements found in that case, while taking account of the considerable impact of the restrictive measures concerned on the rights and freedoms of the persons concerned (see, to that effect, Kadi on appeal, paragraphs 375 and 376).

97 Although that period was determined by reference only to the case of the two persons involved in the cases giving rise to Kadi on appeal, namely, Mr Kadi and the Al Barakaat International Foundation, the fact remains that the Council could not have been unaware that the applicant’s situation, which is in all respects comparable (see paragraph 82 above), necessarily called for the same response on its part. Furthermore, the institutions that are parties to these proceedings have stated that they have taken steps, in particular by approaching the Sanctions Committee, immediately after the delivery of that judgment, for the purpose of making the Community fund-freezing procedures consistent with the principles laid down in that judgment (see paragraphs 72 and 73 above).

(Although the Court also noted that, in any event, Community procedures meant that the Council would have a period of some two months from the date of notification of the judgment in which to pass a new restrictive measure on the applicant).

No real surprises here. However, the Court decided not to confront – in any way – what is surely the most important issue at stake here in broader terms: that of whether the “steps taken” by the Council since Kadi are sufficient to satisfy the rights claims of listed individuals. I blogged on these earlier here; but here they are again, summarised nicely by the Court (para. 71):

In its observations… the Council acknowledged that, following Kadi on appeal, it was necessary to provide the applicant with a statement of reasons, to allow him an opportunity to comment on it and to take those comments into consideration before adopting a new decision to freeze funds affecting him.

Necessary, yes; but sufficient? I have my doubts. Presumably, however, the CFI is going to leave that question to the ECJ in the next installment of the Kadi saga.

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