«Ebba von Ahlen University Twente, Enschede, the Netherlands June 2010 e.vonahlen Supervisor: Prof. Ramses Wessel Co-reader: Martin ...»
Is there a development in the case law of the
EC Courts in relation to the legal protection of
individuals on the EU terrorist lists?
Ebba von Ahlen
University Twente, Enschede, the Netherlands
Supervisor: Prof. Ramses Wessel
Co-reader: Martin Holterman
Terrorism always has been a topic that causes quite a stir. In the aftermath of the terrorist
attacks in September 2001, many states realised that the terrorism can only be dealt with in a global, preventive way. Therefore they introduced the so called “terrorist lists” at the UN and the EU level. A terrorist list is a listed where suspected persons are listed and, as a consequence of being listed, have their funds frozen. Many scholars criticised the lists for breaching fundamental Human Rights, such as the right to be heard and the right to have property. Additionally many affected people brought law suits before the European Courts in order to challenge their listing. Building on these suits, the research question of this assignment is whether Is there a development in the case law of the EC Courts in relation to the legal protection of individuals on the EU terrorist lists?” or not. The research question is addressed through the discussion of several sub-questions which are “What was the reason to establish the terrorist list at the level of the UN and the EU?”, “How are the lists decided on and what are the consequences of being listed?” and “How did the EU Courts judge in cases related to the EU terrorist lists?”.
The case law analysis conducted as the basis for answering the above described question indeed showed that the European Courts during the course of time became more willing to support the claims of the plaintiffs if Human Rights and Fundamental Freedoms have been infringed or if procedural rights have been disrespected. Regarding the terrorist list under UN regulation, the Courts changed from a minimalist approach to a more extensive one. For example, they are now allowing the review of de-listing matters. When it comes to the autonomous list, the starting point was already from a higher level of protection.
Nevertheless, also here, the Courts introduced some significant enhancements such as the introduction of a necessity to provide the reasons for inclusion to the affected individual.
List of Abbreviation CFI Court of First Instance CFSP Common Foreign and Security Policy EC European Community ECJ European Court of Justice EU European Union TEU Treaty of the European Union UN United Nations Table of Content
1. Introduction 7
1.1 Background 7
1.2 Research question and st
1.1 Background The “Detroit-terrorist-attack” from the 26th of December 2009 which threatened a peaceful Christmas celebration reminded the world that terrorism is still a serious danger nowadays.
Moreover, it strengthened the view that combating terrorism is not an easy task. Terrorism indeed has always existed and states as well as their citizens had to deal with it as a long standing phenomenon since decades. The ETA is a good example of a long-standing terrorist group.
Nevertheless, the nature of terrorism has changed during the last decades. As the examples just mentioned shows, terrorism was more an act of individuals against their nation state or against a national authority of another state located in their nation-state, e.g. violence directed against embassies.
The attacks of New York, Madrid and London, on the contrary, belong to the new kind of terrorism. The reason for this is that these terrorist acts were conducted by groups which came from another culture. These individuals believe that the way of living of the victims is reason enough to combat them.
One feature of this modern terrorism is its unpredictability. States are not longer able to predict to a high percentage the likeliness of a terror act in their territory. Moreover, terrorist groups, such as Al-Qaeda, do not restrict themselves to one particular country but see the ‘enemy’ in a whole culture (in the case of Al-Qaeda, it is the Western Hemisphere).
To sum up, while in earlier days the terrorist were mostly radicals from the same culture and same country of origin as their country of attack, today the danger comes out of a different cultural setting and is more transnational or even global in nature.
The unpredictability and the tansnational character of terrorism raise the vulnerability of individual states. That holds true also for the member states of the European Union. As a result of this development states more and more bound together in the “war against terrorism” because none of the states can any longer guarantee security for its citizens by its own.
1 Annan, K. (2003). Conference Report, keynote address, Conference on “Fighting Terrorism for Humanity”, International Peace Academy, New York, 22 September 2003 7 Cooperation is also needed because attacks might cause ripple effects as today’s societies are so interdependent on each other2.
The states recognised soon that terrorism is not a problem that can be dealt with alone within the borders of the territory. Therefore the United Nations as well as the European Union adopted several action plans and regulations (or resolutions) dealing with the fight against terrorism. However, at both governance levels, the implementation was not that good. This changed radically after the aftermath of 9/11. Impressed by the dimension of the terrorist act many states adopted new regulations in order to strengthen their security and safety policy.
As a consequence of the nation-states’ re-thinking of and emphasize on terrorism as well as their awareness that terrorism is global in nature, the states, acting through the United Nations, agreed upon special sanctions for terrorist suspects. A first list of suspects existed already before 9/11, but its scope is limited to associates of the Taliban and Al-Qaeda. The European Union implemented this list as a part of their regulations. Additionally, the EU annexed a terrorist list to the Common Position which implements Security Council Resolution 1373. This list is independent from the first one and the decision-making capacity regarding listing-and de-listing request are decided upon by the European Union itself.
Both lists, however, raise several Human Right concerns and it is questioned whether a listed individual, group or entity has sufficient opportunities to challenge his/her listing. The conflict mirrored in these worries is that Civil and Human Rights are disrespected and even violated for the purpose of strengthening internal security. Many affected individuals try to force the European Union to de-list them in proceedings before one of the EU Courts. These cases are interesting insofar as the Courts can be seen as the guardian of individuals as becomes obvious when examining the establishment of Fundamental Rights by the Courts.
The underlying interest is then whether one can make such a claim also in regard of the legal protection of listed individuals. The purpose of this research is therefore to shed light on the question whether the EU Courts judge differently over the years in order to develop a case law which improves the situation of listed people regarding their legal protection.
2 Lugna, L. (2006). Institutional Framework of the European Union Counter-Terrorism Policy Setting, Baltic Security & Defence Review Volume, Vol. 8
As a result, the research question examined and finally answered in this bachelor thesis is “Is there a development in the case law of the EC Courts in relation to the legal protection of individuals on the EU terrorist lists?
In order to be able to answer the research question several sub-question will be addressed in separate chapters. Chapter two of this thesis provides general background information about the two terrorist lists shedding light on the question“What was the reason to establish the terrorist list at the level of the UN and the EU?” Thus, the chapter first gives the reasons for establishing the lists, before their legal basis are determined.
The third chapter leaves the surface and goes a bit further into the material and the problematic of the terrorist lists. Judging possible Human Rights breaches is strongly connected to the procedure of listing and subsequent consequences of being listed.
Additionally, also the basis for access to justice may depend significantly on the kind of procedure used. Therefore the second sub-question is “How are the lists decided on and what are the consequences of being listed?” Chapter three discusses this sub-question before the actual analysis is conducted in chapter four. Based on the question “How did the EU Courts judge in cases related to the EU terrorist lists?” the case law concerned with the lists of the EU Courts is elaborated regarding the respect for legal protection. Here, two distinctive analyses are done: first for the EU/ UN list and then for the autonomous EU list. The aim of this inquiry is to make an inquiry about the reasoning about the EU Courts in order to trace any change in the protection of the individuals who bring their matter before the Court.
The last chapter provides a conclusion about the analysis conducted in the foregoing chapter and in doing so answers the overall research question.
1.3 Significance of the study
The research that will be conducted within the framework of this thesis is admirable for manifold reasons. First of all, it combines important outcomes of the single judgments. Hence, one do not have to look up all the different cases. This helps to create a good overview of the existing laws. More important however is that the research examines the Court’s ability to protect and enforce Human Rights within the European Union. This is significant on the basis of some essential changes that came with the Lisbon Treaty, such as the inclusion of the Charter of Fundamental Rights, and the possibility to become a party to the European
1.4 Methodology As the aim of the bachelor thesis is to provide insides into the EU Courts judgments in cases brought forward by individuals listed on the EU terrorist list, the data used is case law as well as secondary literature by other scholars about the certain cases. Hence, the analysis is descriptive and qualitative in nature. As a result of this, the appropriate research design is a desk research. The unit of analysis is hereby the EU Courts where the unit of observation is the case law, i.e. the judgements of the Courts.
The judgments of the EU Courts will be reviewed under the point of legal protection. The aim of the analysis is to show whether or not there has been a development regarding the legal protection of listed individuals during the years.
1.4.1 Case selection and time span
The unit of analysis of this thesis are as already mentioned the cases brought before the EU Courts. Due to the fact that there are much more cases concerned with the EU terrorist list than I can deal with, I selected the cases that will be discussed on the basis of the literature.
The criterion for selection was the importance of a case that was assigned to it by various scholars in their examinations of legal and Human Right issues related to the EU terrorist list.
Next to this the time the judgement was delivered has been used also as a criterion for the selection. I will only consider cases that have been brought before the Court and decided upon between October 2001 and December 2009.
1.4.2 Definition of the concept “legal protection“ The main concept of this thesis is the term “legal protection”. Within the framework of this thesis the term labels to the protection of listed individuals via the EU Courts through the latter’s case law.
a) are Human Rights granted and reviewed = Human Rights: right to fair hearing and right to fair trail right to property and information presumption of innocence and right to state reason = Is the Court able and willing to review the legislation under contestation on the basis of possible Human Rights breaches?
b) access to judicial review = Is the Court willing to permit access to judicial review for listed individuals?
In this chapter basic information about the two terrorist lists will be presented. First I will review the reasons for setting up such lists before I will focus more on the legal foundations of them. These steps are necessary because one cannot place the lists into a discussable context without such information.
2.1 The EU terrorist list under UN regulation
As already mentioned in the introductory part of this thesis, two different lists exist. The first one is often called EU/UN list or EU terrorist list under UN regulation while the second is known as “autonomous” list.3 Before turning to the autonomous list, I will deal with the former one. The reason for this is that the autonomous list is build upon the UN list and will be discussed in more detail in a later part of this chapter.
2.1.1 The reasons for establishing a terrorist list at the UN level
The attacks of September 11 revealed a basic phenomenon: the fight against Al-Qaeda and other similar minded terror groups falls within international criminal prosecution. Hence a war, in the classical sense of the meaning, against an identified enemy is not possible.4 The reason for this can be found foremost in the organisational structure of these groups. They are network-organisations with many, widely dispersed members and countless passive sympathiser. Therefore any effective measure against terrorism needs a global approach, i.e. a high level of cooperation between the nation-states.5 The members of the UN recognised this development fast. Their willingness to pool together their power and to establish common measures against terrorism is also founded in the whish to create a global basis and approach for the local response to terrorism. Support and cooperation are the main motives here.