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. . The fight against terrorism, fundamental rights, and the EU Courts: the unsolved conundrum . Dr Eva Nanopoulos, Sidney Sussex College, University of Cambridge. . What is a terrorist list?.
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. The fight against terrorism, fundamental rights, and the EU Courts: the unsolved conundrum Dr Eva Nanopoulos, Sidney Sussex College, University of Cambridge.
What is a terrorist list? • Practice whereby people are identified as suspected terrorists and a range of restrictive measures imposed upon them. • Includes the freezing of all their funds, subject to some limited exemptions.
Terrorist Lists in the EU • UN list: list of persons associated with Al-Qaida and the Taliban as identified by the Sanctions Committee of the United Nations (UN) Security Council (SC). • EU list: list of persons considered by the EU institutions to be concerned with acts of terrorism on the basis of a decision of a competent authority.
Fundamental Rights • Right of every person to be heard, before any individual measure which would affect him or her adversely is taken (Article 41 (2) Charter). • Duty to state reasons (Article 41 (2) Charter & Article 296 TFEU). • Right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated (Article 47).
Public Interest • Context of the measures • Fight against terrorism • International cooperation • Nature of the measures • Basis of the terrorist lists
The Challenge • On a general level: reconcile the demands of public security with the protection of fundamental rights. • In practice: handling sensitive information.
But can they? • In Camera proceedings available: • When Member State seeks to rely on Article 346: “no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security.” • When serious reasons so require • Treatment of confidential information?
Confidential treatment of information • Proceedings involving access to documents (Article 67(3) ROP). • Proceedings involving legality of EU acts • Protection from third parties/interveners (Article 116(2) GC ROP) • Disclosure to the other party?
The conundrum Institutions are put in a difficult position: • Either they disclose sensitive information, contrary to the dictates of the public interest • Or they take no action against a person who may pose a genuine threat to public security
The conundrum aggravated: the effects of multi-level governance • No independent investigative capacity • Information is not gathered directly by the EU institutions • No guarantee of confidentiality can be provided to original decision-maker
The conundrum in operation: PMOI • Information not disclosed to the Court because Frances opposes disclosure • GC sceptic: “Council's contention that it is bound by the French authorities' claim for confidentiality [does not] explain why the production of the relevant information to the Court would violate the principle of confidentiality, whereas their production to the members of the Council, and thus to the governments of the 26 other Member States, did not.” • Refusal to communicate document even to the Court alone means can’t review
Option 1 • Not for us • Council not entitled to base a funds-freezing decision on information communicated by a Member State, if the said Member State is not willing to authorise its communication to the EU judicature (GC, PMOI II).
Option 2: Reform • Need implicit in case law “Question as to whether the applicant and/or its lawyers could be provided with the evidence and information alleged to be confidential, or whether they had to be provided only to the Court, in accordance with a procedure which remained to be defined”(GC, OMPI). • Explicit call for reform(AG Sharpston, PMOII). • Form?
The Special Advocate Procedure • Security-cleared counsel appointed to represent the interests of individuals where a decision taken against them partly or wholly relies on secret material • Disclosure & Representative function • “Technical” difficulties • Effective counter-balance?
A v UK Disclosure Stage Representation stage Minimum level of disclosure Sufficient information about the allegations to give effective instructions to the special advocate. How is it to be assessed? • Confidential treatment exceptional • Tendency of over-classification • Secret evidence may originate from flawed sources • Important additional safeguard
Scope of Application? • Focus on effects not nature of the measure. • “Non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order” (Secretary of State v AF [2009] UKHL 28). • Asset freezing orders are “scarcely less restrictive of the day to day life of those designated [...] than are control orders” (A v HM Treasury [2010] UKSC 2). .
Examples Threshold met Threshold not met Statement that Kadi was a shareholder in a bank in which plans to mount an attack on the US may have take place Raising of money through fraud with no evidence of link with terrorism • Attendance to a terrorist training camp /meeting with named terrorist at a stated location between stated dates • Purchase of specific telecommunications equipment, possession of specific documents linked to named terrorist suspects
A New Specialised Court ? • Article 257 TFEU: “The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish specialised courts attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas.”
Pros/Cons? For Against Fear that entrench parallel system of justice/ breach principle of equality before the law European consensus ? • Tailored rules of procedure • Knowledge/Expertise • Workload • Swift adjudication • Integrity of the EU court system • Broader strategy
Conclusions • Lack of adequate procedure • In theory: can’t use secret evidence • In practice: no disclosure • Choice needed • Work in progress: how exactly?
