Terrorism Lists
7 May
2012 For several years now, the ECCHR has been working
on so-called ‘terrorism lists‘. The main focus of this work is to address the
grave violation of basic constitutional and human rights that arises by
identifying individuals and groups in such a process of listing. Secondly, the
ECCHR is working to scrutinize the political and social reaction to terrorism
and the waivering of important constitutional achievements in dealing with
certain actors. The ECCHR has initiated individual emblematic legal cases along
with several discussions and debates, such as the report Blacklisted.
Cases
The
ECCHR is currently supporting four individuals living in Italy who have been on
UN and EU terror lists since 2003-2004. A first removal
request to the United Nations Security Council 1267 Committee ombudsperson was
successful when an individual was taken off the list on May 7th 2012. The 1267 committee administrates the UN terror lists, which compile the
names of individuals and groups against whom sanctions have been issued
following their suspected involvement in terrorism. Italian courts have former
acquitted all four people of any accusations of terrorism. Nevertheless, they
still remain on the UN list as ‘former members’ of an Italian terrorist group,
which is suspected to have had links to the organization Al-Quaeda in the
Islamic Maghreb (GSPC). As a result of the listing, all assets of the accused
as well as those of their families were frozen and subject to strict monitoring
by the Italian authorities. Decisions on the remaining three applications are
still pending. Similarly, applications put to the EU commission for all four
individuals so far remain undecided.
In
another case, the ECCHR supported a reference for a preliminary ruling at the
European Court of Justice with a legal opinion in which the illegality of the
system of terror listing was put forward. The Higher Regional Court of
Dusseldorf raised the issue with the European Court of Justice of whether
collecting donations for the Turkish DHKP-C – an organization identified on the EU list – constitutes a criminal offence according to German law. The listing of
the groups involved was thus declared invalid
(Rs. C-550/09). This means that
criminal prosecution in Germany cannot be carried out on the basis of a group’s
inclusion in the EU terror list. The reasoning given for the invalidity was the
lack of ‘justification for including the DHKP-C in the list‘. According to the Court,
no necessary judicial control can therefore be guaranteed, particularly to
review the facts of the case or the given evidence and information.
The Sison Case
In one of the first terror listing cases, the ECCHR participated in the
legal dispute of the Filipino politician and journalist Prof. Jose Maria Sison,
who is living in exile in Holland. Mr. Sison was first added to the list in
October 2002. The European Court of First Instance judged that the listing was
contrary to Sison’s right to a fair trial as he was confronted by the sanctions
without being given any justification and had no opportunity to respond to the
accusations. Reacting to this first ruling, the EU gave Mr.
Sison a statement in which they explained very briefly their decisions and the
reasoning for him to remain on the list. In a second ruling on September 30th
2009, the European Court of First Instance declared the decisions of the
European Council on the freezing of assets and Sison’s inclusion in the EU
‘terrorism list‘ to be void. Mr. Sison was then removed from the list, but was
nevertheless denied compensation.
Debate / Publication
The ECCHR has released a comprehensive publication on the subject of
terrorism lists. The report
Blacklisted compiled by Gavin Sullivan and Ben Hayes comprises a detailed
critique of the process of the ‘blacklisting‘ of individuals by the United
Nations and the European Union. The report offers an overview of fundamental
rights violations by terrorism listing and also of the most important cases of
European jurisdiction over the past decade. An analysis follows of the
political ramifications and problems of the procedure and a critical evaluation
of possible structural reforms. It goes on to illustrate how the listing system
is currently facing a crisis of legitimacy. The authors discuss the recommendations of Martin Scheinin, former
UN Special Rapporteur on human rights and counter-terrorism, who advocates the abolition of the lists. In his foreword to
Blacklisted, he writes:
Whatever
justification there was in 1999 for targeted sanctions against Taliban leaders as
the de facto regime in Afghanistan, the maintenance of a permanent global
terrorist list now goes beyond the powers of the Security Council. While
international terrorism remains an atrocious crime [...], it does not justify the exercise by
the Security Council of supranational sanctioning powers over individuals and
entities.
Blacklisted shows that this whole situation is not only about individual laws that
need to be changed. What’s more, it cannot be left to states, political
decision makers or courts to find solutions for themselves. A wide, public
discussion on handling terrorism and the nature of political organizations must
be initiated if we want to not only control the ongoing problem of
blacklisting, but also to solve it.
The subject of terror listing also constituted part of
the conference ‘Ten Years After 9/11: Looking Back, Moving
Forward‘, organized by the ECCHR in collaboration with Amnesty International in
Berlin on June 29th 2011. On May 21st 2010, a panel discussion co-organized by
ECCHR took place at the Humboldt University, Berlin. Under the title ‘A New
Step Towards Enemy Criminal Law? The EU Terrorism Lists in Connection with § 34
of the Foreign Trade Act‘, German Constitutional Court judge Andreas Paulus
amongst others critically discussed the usage of ‘terrorism lists‘, referring
directly to the German case towards which the ECCHR contributed before the
European Court of Justice (see above). The ECCHR, together with the Free University of
Brussels, organized an international conference on October 20th 2009 on the
subject of terror listing by the European Union and United Nations and its compatibility with fundamental and human rights.
