Something is moving , at last, as far as protection of fundamental rights is concerned for people who have been erroneously registered by the EU or by the United nations in the so called “terrorist lists”.
It is happening after years of quarrels raised at political level by the European Parliament, the Council of Europe’s Assembly and even by the UN General Assembly and after several judgments notably by the European Court of Justice, as it happened with the landmark Kadi ruling in September 2008.
It is worth remembering that these lists are established by the UN Security Council acting in the framework of Title VII of the UN Charter which deals with the binding measures to be taken to preserve “…the peace, breaches of the peace, and acts of aggression”.
These measures aimed notably at fighting international terrorism have been routinely adopted after 9/11 in the framework of the UNSC Resolution 1267/99 (which refers the establishment of “UN” terrorists lists by specialized Committees of the Security Council) and Resolution 1373/01 (which requires all the UN Member States to establish their own “national” terrorists lists).
As all the European Union Member States are also members of the United Nations, the European Union has decided in 2002 to coordinate the implementation of these Resolutions inside the EU by adopting a series of measures (the so called “common positions”) in the framework of the foreign and security policy as well by adopting Community Regulations aimed to restrict the movement of the listed people in all the EU territory as well to freeze their funds, financial assets or economic gains.
However, predictably, the EU Measures have been very soon challenged before the Court of Justice by those individuals/organizations who considered themselves not only erroneously registered in these lists but moreover in violation of their fundamental rights such as to a fair trail or to personal data protection and last but not least to property.
In a first period the European Court of Justice had some hesitations due to the fact that notably :
– on one hand some measures (such as the “common positions”) were adopted by implementing EU policies such as the EU external and defense policy (the so called “II pillar”) which were excluded from the Court competence and
– on the other hand because these UN Charter related measures had been adopted on the basis of a Treaty ratified by the EU Member States before the creation of the European Community itself.
Therefore in a second phase the European Court of Justice took a more assertive position and with the Kadi judgment declared that for the EU the protection of fundamental rights is an overarching principle even against obligations arising from the international law as it is the case for the Resolutions of the UN Security Council. As stated in the Conclusions of General Advocate Maduro the “relationship between international law and the Community legal order is governed by the Community legal order itself,” meaning that “international law can permeate that legal order only under the conditions set by the constitutional principles of the Community” (para. 24). (This is is an interesting callback to the doctrine of “counter-limits” invoked by some Constitutional Courts towards.. the European law).
So, even despite the initial vacillations, the European Court of Justice message has now been received strongly and clearly by the UN and under the initiative of the United States and of other States (among which in the European Union, Austria, France and the United Kingdom) the Security Council has adopted on 17 of December a new Resolution which frames the procedures to be followed by the “sanctions” committees when establishing the “terrorist” lists and, most importantly, the way how those unfairly listed (due to person exchange or procedural mistakes) could be de-listed.
The main innovation is the creation of an Ombusperson, whose aim will be to assists the “sanctions” committees as well the people who believes that has been illegitimately inserted in the lists. Despite having a pure investigative role, the role of the Ombusperson may be crucial in a field where up to now the individual had no right to appeal before the Sanctions Committees and the States acted in an erratic when not superficial way (as it can be inferred by the increasing number of judicial appeals also outside the European Union) (see: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/656/62/PDF/N0965662.pdf?OpenElement)
A thorough revision of the terrorist lists is taking place also at the European Union level by the revision of the “common position” and “guidelines” already applicable in this field. Moreover the Council of the European Union has just amended the Regulation 881/2002 , which implements the United Nations Resolution 1267/01 in order to ensure a stronger protection of fundamental rights.
However, the tricky point is that the Council legislative reform has been founded on Article 215 of the Treaty on the Functioning of the European Union (TFEU) which deals with the foreign and security policy but where the adoption of legislative acts is formally excluded.
As a collateral consequence of this choice also the European Parliament will be excluded from the adoption of these measures. This situation appears inconsistent with the very fact that the European Parliament is “co-legislator” when “internal” sanctions procedures are adopted (article 75 of the TFUE).
Hence, interesting questions arise: can measures implemented on the basis of article 215 be considered legislative by nature? If so, can two different parallel legal regimes of “restrictive measures” co-exist in the European Union simply due to the fact that some measures are based on a “list” defined by the United Nations and other should be enforced on “lists” established by the European Union (even if in application of another UN Resolution on “national” lists 1373/01 mentioned above) ?
Faced to such a dilemma the European Parliament has immediately reacted with a very detailed resolution debated and voted immediately after the entry in to force of the Lisbon Treaty. Not surprisingly the representatives of the European Commission and of the Council replied in a rather bureaucratic and evasive way to the EP arguments (not even making reference on the United Nations reform which was adopted the same days…).
It is now, to be seen if the European Parliament will maintain its position as far as to submit the issue to the European Court of Justice.
Whatever may happen, this case shows how the protection of fundamental rights in the European Union is more and more the outcome of the interaction between judges, politicians and the legislature.