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Doc. 11454 Addendum
22 January 2008
UN Security Council and European Union blacklists
Addendum to the report1
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Dick MARTY, Switzerland, Alliance of Liberals and Democrats for Europe
I. Introduction
1. The publication, on 16 November 2007, of the draft resolution and recommendation, and of the explanatory memorandum on the blacklists, reported by the media in many Council of Europe member states, has helped to revive discussion of this issue in political and academic circles.
2. The following up-dated information is provided in anticipation of the debate, at the Parliamentary Assembly’s January 2008 part-session, on the report adopted by the Committee on Legal Affairs and Human Rights.
II. New developments
i. The Nada case
3. In a decision of principle given on 27 November 2007, the Swiss Federal Court dismissed the application brought by Mr Youssef Nada (77), who has been battling for years to secure unfreezing of his accounts and recover the right to leave the tiny commune of Campione2. Cleared after lengthy enquiries by Swiss Prosecution Service investigators, he has failed to secure removal of his name from the "blacklist" by the United Nations Security Council. The Swiss Federal Court takes the view that, in spite of manifest shortcomings in the procedures for inclusion on, and removal from, those lists, the measures ordered by the Security Council to combat Islamic terrorism leave states no room for manœuvre, making it impossible for them to relax, even in the name of human rights, the system of sanctions established by the Security Council. The Swiss Federal Court has at least recognised that Switzerland must support Mr Nada in his approaches to the UN authorities.
4. In paragraph 7 of its draft resolution, the Committee on Legal Affairs and Human Rights takes the view “that it is both possible and necessary for states to implement the various sanctions regimes whilst respecting their international obligations under the ECHR and the UNCCPR”. My relatively positive verdict on Swiss policy regarding the sanctions decreed by the Security Council3, based in particular on certain procedural adjustments, has thus proved – alas – too optimistic.
5. At the hearing with legal experts in this field on 28 June 2007, the possibility that states might disregard the Security Council if conflict arose with their obligations under the ECHR was certainly mentioned. I share the disappointment of the first commentators4 at the decision of the Swiss Federal Court, which has missed an opportunity to show the way towards putting an end to the scandal of totally inadequate procedures within international bodies, which violate the most basic of “fair trial” rights5 : by themselves deciding on the validity of their nationals’ inclusion on the blacklist, in the absence of fair proceedings at international level, national courts could actually compel the UN authorities to improve their procedures and so help to increase the legitimacy of these lists which are – as we acknowledge6 - a potentially useful instrument in the fight against terrorism. In my view, the “procedure” at the UN violates the domestic ordre public, by ignoring elementary procedural defense rights, which are considered as essential in our culture. It is not enough to make nice speeches on the importance of human rights; we must also have the courage to act in accordance with our lofty words.
6. The Milan prosecutor’s office had also opened an investigation concerning Mr Youssef Nada. On the application of the prosecutor himself, the Court of Milan decided, on 14 August 2007, to close the investigation. The prosecutorial authorities of two countries have thus investigated the so-called activities of Mr Nada in favour of terrorist movements; they arrive at the same conclusion: no case to be answered. Mr Nada has nevertheless remained on the black list for more than six years.
7. I should not be surprised, indeed, to see this case taken further before the European Court of Human Rights, which will have to rule at last instance on the conflict between the UN member states’ duty to comply with the resolutions of the Security Council, including those of its Sanctions Committee, and their duty to protect individuals' fundamental rights under the ECHR.
ii. The PMOI/Iranian People’s Mujahedin case
8. The PMOI case is also cited in the November 2007 report as an example of the disastrous effects of the blacklists – in this case, those of the EU. As we know, the PMOI was successful before the Court of First Instance of the European Communities (CFIEC).7 Nonetheless, the Council of the European Union refused to de-list it, arguing that the CFIEC’s judgment applied only to procedural defects, which it claimed to have remedied – a claim which we already contested in November.
9. The PMOI is also on Britain’s "national" blacklist. Unlike the "international" lists, the British machinery provides for appeal to an independent judicial authority – the POAC8. On 30 November 2007, the latter ruled that the British Government’s blacklisting of the PMOI was unlawful. Unlike the CFIEC judgment, this decision does not simply identify procedural defects, but gives a ruling on the merits, having reviewed in detail the arguments and evidence presented by both sides. The result is sensational: the POAC, chaired by Sir Harry Ognall, a former judge, terms the Government’s decision to blacklist the PMOI as "perverse" – coming from a British court, a real slap in the face for HM Government. Moreover, on 14 December 2007, the High Court refused, in unequivocal terms, to grant leave to appeal against the POAC’s decision.
10. The case was brought before the POAC by 35 British parliamentarians, including a former Home Secretary, Lord Waddington, the former Solicitor-General, Lord Archer, and a retired judge in the House of Lords, Lord Slynn. The Commission concluded that the PMOI’s "military" action against military and security targets in Iran had ceased for good in 2001, that the group had voluntarily disarmed in 2003, and that it had made no attempt to rearm. There were questions in the British press as to why the British Government, which also appeared to be behind the blacklisting of the PMOI at European level, was so resolutely antagonistic to this group, which was campaigning for replacement of the Mullahs’ regime by a secular democracy, and had drawn the world’s attention to Iran’s nuclear programme in 20029.
11. Since the Council of the European Union, in a decision dated 20 December 2007, has kept the PMOI on the blacklist, regardless of the CFIEC’s judgment in its favour10, and again on the basis of the British listing which had already been repudiated by the PMOI, the case will end up again before the Community judges, who will have to rule on the scope of judicial supervision of the Council’s blacklists, and will this time find it hard to avoid answering the basic question – in the light of the evidence collected by the British POAC – is the PMOI a "terrorist" organisation or not?
iii. The Kadi case
12. In the Kadi case, the judgment of the CFIEC11, which was very reticent regarding the opening of a judicial remedy before the European Community courts for persons blacklisted by the UNSC, was appealed. The Advocate General at the ECJ, Mr Poiares Maduro, delivered his conclusions on 16 January 200812. He recommends to the ECJ to set aside the judgment of the CFIEC and to annul the litigious Council regulations13. His conclusions are clear and convincing: the complete absence of procedural protections at the level of the UN Security Council obliges the European courts to be especially vigilant, and the thesis of the supremacy of the resolutions of the UN Security Council does not exonerate the European judges from ensuring that acts of the European institutions do not violate the legal order of the Community. “Both the right to be heard and the right to effective judicial review constitute fundamental rights that form part of the general principles of Community law.14 I can only subscribe wholeheartedly also to the following words of the Advocate General: “The fact that the measures at issue are intended to suppress international terrorism should not inhibit the Court from fulfilling its duty to preserve the rule of law. […] Especially in matters of public security, the political process is liable to become overly responsive to immediate popular concerns, leading the authorities to allay the anxieties of the many at the expense of the rights of a few. This is precisely when courts ought to get involved, in order to ensure the political necessities of today do not become the legal realities of tomorrow.”15
iv. The Sayadi-Vinck case
13. A “blacklist” case has also landed on the desk of the UN Human Rights Committee; in a similar situation as that of Mr Nada, the Saydi-Vinck couple have lodged a complaint against Belgium, which continues to execute sanctions decreed against them by the UN despite the fact that an enquiry by the Belgian prosecutor’s office has not given rise to any charges.16 The complaint was declared admissible in March 2007.
III. Conclusions
14. The developments in the Nada and PMOI cases cast no doubt on the draft resolution and recommendation adopted by the Committee on Legal Affairs in November or the explanatory memorandum. On the contrary, they illustrate the drastic consequences which the flawed procedures still current in the United Nations Security Council and the Council of the European Union can have for innocent parties, who face almost insurmountable difficulties in securing the most basic of their rights.
15. Indeed, the effects of including an individual or legal person on a "terrorist blacklist" are even more far-reaching than we said in the November 2007 report – and probably more far-reaching than the list-keepers themselves could have foreseen. The ECJ judgment in the Möllendorf17 case, for example, prohibits land registry offices from registering a blacklisted person as the owner of a building. The result in that case was a Kafkaesque situation, since the person in question had paid the purchase price before he was blacklisted, and was prevented from obtaining a refund by the fact that his accounts had been frozen in the meantime. If the Security Council resolutions were taken seriously – and they normally should be – then blacklisted persons would no longer be able even to shop in supermarkets, draw their wages or collect rent from tenants18. In criminal law, inclusion on a "blacklist" is one of the factors considered in ordering a suspect’s detention on remand or refusing him compensation for wrongful detention. The German welfare authorities reportedly refused to pay a "listed" person unemployment benefit, and even withheld social assistance from the German wife of another person suspected of funding terrorism. Precisely because of their support for the PMOI, the organisation recently declared harmless by the British POAC, several Iranian exiles in Germany have lost the political refugee status granted them years ago. Other PMOI supporters have been refused German nationality because of their membership of this blacklisted organisation19. Several PMOI members have told me of criminal proceedings in Iran, in which the fact of its being recognised as a "terrorist" organisation by the EU has been used as an argument in demanding the death penalty.
16. These examples – by no means the only ones! – show the extremely serious consequences of including individuals or organisations on the various "blacklists", and thus the importance of our demands in the draft resolution concerning the minimum conditions which must be respected regarding the procedure and merits in such cases, and concerning the need for effective remedies against inclusion on such lists. I accordingly welcome Switzerland’s recent initiative for the establishment of an independent board of appeal to review the list at regular intervals and process applications for de-listing.20
17. Blacklists, as we said, can be acceptable, for a time, as a weapon to fight terrorism and its supporters. Such a measure, which has severe consequences, must however be well targeted, following a serious procedure. This is not at all the case today. Let us say it clearly: the current blacklisting practice is scandalous and blemishes the honour of the institutions making use of it in such a way. Blacklisting without respecting the most elementary rights puts into the question the credibility of the fight against terrorism and thus reduces its effectiveness. Effective prevention and rigorous prosecution of crime involving terror whilst respecting the fundamental principles of the ECHR is possible; respecting these principles is even indispensable in order for all citizens to support and to identify with this fight. Injustice is an important ally of the terrorists: let us therefore fight it, too. This is precisely what the texts submitted to the Assembly by the Committee on Legal Affairs intend to do.
1 See Doc. 11454 du 16.11.2007.
2 See introductory memorandum, AS/Jur (2007) 14, available at
http://assembly.coe.int/CommitteeDocs/2007/20070319-fjdoc14.pdf
3 See Doc. 11454, § 84.
4 Cf. interview with Professor Michel Hottelier, Le Temps, 28.11.2007: “le TF fait prévaloir un peu vite le droit des Nations unies”.
5 Following publication of the November report, a German student drew my attention to another decision in which a national court refused to apply a sanction decreed by the Security Council’s Sanctions Committee. This was a decision given by the 10th division of the Turkish Council of State on 04.07.2006 in the Yasin al-Qadi case (referred to in the Sixth Report of the Analytical Support and Sanctions Monitoring Team established under Resolutions 1526 (2007) and 1617 (2005) of 08.03.007, S/2007/132). However, this decision was set aside on appeal in February 2007 by the Administrative Law Division of the Turkish Supreme Court, after a hesitation waltz, in which the Turkish Prime Minister himself reportedly guaranteed Mr Al-Qadi’s innocence (cf. Andrew Cochran, Turkish Administrative Court freezes Yasin Al-Qadi’s Assets, in : Counterterrorism Blog, 23.02.2007, 9 :19 pm).
6 Cf. § 3 of the draft Resolution.
7 See Doc. 11454, §§ 54-58.
8 Proscribed Organisations Appeal Commission.
9 Cf. Clare Dyer, “Government ordered to end ‘perverse’ terror listing of Iran opposition”, in: The Guardian, 01.12.2007; Christopher Booker, “Brown under fire for illegal ban on dissidents”, in: The Sunday Telegraph, 23.12.2007
10 Council decision of 20.12.2007 (OJ L 340/100 of 22.12.2007).
11 Cf. November 2007 report (Doc. 11454), §§ 46 pp.
12 Case no. C-402/05 P, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, available under http://curia.europa.eu
13 In particular, Regulation No. 881/2002.
14 Opinion of the Advocate General (supra note 11), § 49.
15 Opinion (supra note 11), § 45.
16 Decision of the “counsel chamber” of the Brussels Court of First Instance of 19.12.2005; application registered by the Human Rights Committee on 10.05.2006 (cf. http://www.leclea.be/pages/couple-belge.html and http://www.montki.be/content/view/1594/101), following the procedure foreseen in the Optional Protocol of the International Covenant on Civil and Political Rights of 1966.
17 Decision of 11.10.2007, Rs. C-117/06.
18 Article by Frank Meyer and Julia Macke (researchers at the Max Planck Institute for Foreign and International Criminal Law, Freiburg), "Rechtliche Auswirkungen der Terroristenlisten im deutschen Recht", in: HRRS 12/2007, pp. 447-466.
19 See Meyer and Macke, ibid. (note 18), pp. 449-450.
20 Cf. Peter Johannes Meier, SonntagsZeitung, 13.01.2008: "Terrorliste:EDA macht Vorschlag".