Common Foreign and Security Policy, War on Terror and Rights of Defence: Case T-284/08

This must be one of the quickest ever judgments of the Court of First Instance. The People's Mojahedin Organization of Iran lodged an application on July 21st 2008 to annul a Council Decision maintaining it on a list of persons whose assets should be frozen because of their links with terrorism and judgment was delivered on December 4th 2008. The procedure was expedited. Even more remarkable is the fact that the hearing took place on December 3rd, 2008 and judgment was handed down the very next day.

The judgment of the Court of First Instance in Case T-284/08 People's Mojahedin Organization of Iran v. Council is notable for other reasons too.

This judgment marks the third time that the Court of First Instance has annulled a measure placing the People's Mojahedin Organization of Iran on a list of terrorist organizations.

In its first judgment in Case T-228/02 - judgment we noted here, the Court of First Instance annulled a Council decision placing that organization on a list on the grounds that it did not contain a sufficient statement of reasons, that it had been adopted in the course of a procedure during which the applicant’s rights of defence had not been observed and that the Court itself was not in a position to review its lawfulness.

Then, in Case T-256/07, the Court of First Instance annulled a second decision because the Council had failed to give sufficient reasons as to why it had not taken into account the judgment of a British judicial authority, the Proscribed Organisations Appeals Commission (“POAC”), ordering the removal of the People's Mojahedin Organization of Iran from the British list of terrorist organizations. The Court held that it was imperative when adopting EU fund-freezing measures that the Council take account of a decision of a competent national judicial authority, as well as verifying any consequences of that decision at the national level. In its judgment, the POAC described as ‘perverse’ and ‘unreasonable’ the British Home Secretary’s conclusion that the applicant was still a terrorist organization.

Now this case, T-284/08, concerned the decision of the Council to maintain the People's Mojahedin Organization of Iran on the updated EU list of terrorist organizations. It was so maintained because the Council noted that the British Home Secretary’s order was no longer in force, and that ‘new information concerning the group [had] been brought to the Council’s attention” which justified keeping the People's Mojahedin Organization of Iran on the EU list.

The People's Mojahedin Organization of Iran challenged that decision. And won, yet again.

The Court of First Instance held, in the light of the principles already stated in its judgment in Case T-228/02, that the contested decision was adopted in breach of the People's Mojahedin Organization of Iran's rights of defence: The Council adopted the contested decision without first informing the People's Mojahedin Organization of Iran of the new information or new material in the file which, in its view, justified maintaining it on the list.

But the Court of First Instance did not stop there. It considered that the case raised other important issues of principle.

Thus, the Court of First Instance also held that the Council had failed to explain the specific reasons as to why the acts ascribed to certain individuals by the French authorities in the course of investigation conducted by their anti-terrorist specialists into the activities of certain members of the People's Mojahedin Organization of Iran should be attributed to the People's Mojahedin Organization of Iran itself. The Court of First Instance took umbrage at the fact that the Council refused - at the request of the French authorities - to communicate to the Court certain extracts of a document containing a "summary of the main points which justify the keeping of [the organization] on the EU list", even though this information had been communicated to the Council and subsequently to the 26 other member States. The Court held that the Council is not entitled to base its funds-freezing decision on information or material in the file communicated by a member State, if that member State is not willing to authorize its communication to the EC courts whose task is to review the lawfulness of that decision. The refusal by the Council and the French authorities to communicate, even to the Court alone, the information contained in the document means that the Court cannot review the lawfulness of the contested decision, which infringes the People's Mojahedin Organization of Iran fundamental right to an effective judicial review.

The Court of First Instance recalled that effective judicial review is all the more essential because it constitutes the only safeguard ensuring that a fair balance is struck between the need to combat international terrorism and the protection of fundamental rights. Since the restrictions imposed by the Council on the rights of the parties concerned to a fair hearing must be offset by a strict judicial review which is independent and impartial (see, to that effect, Case C‑341/04 Eurofood IFSC, paragraph 66), the EU courts must be able to review the lawfulness and merits of the measures to freeze funds without its being possible to raise objections that the evidence and information used by the Council is secret or confidential.

Comments

[Sven]

See also this article about the same issue:
"The EU Council of Ministers - Criminals or just sadly incompetent?"
http://newsblaze.com/story/20081224161357zzzz.nb/topstory.html

The whole thing is really a huge scandal.