Sanctions Against Individuals – Fighting Terrorism Within the European Legal Order
European Constitutional Law Review, Vol. 4, Issue 2, pp. 205-224, June 2008
20 Pages Posted: 18 Aug 2009 Last revised: 29 Jun 2012
Date Written: September 1, 2008
As part of the international fight against the financing of terrorism both the United Nations and the European Union have been adopting restrictive measures against natural and legal persons not directly related to the power structure of a state since 1999 and 2001 respectively. These ‘individual sanctions’, imposed both on EU citizens and third country nationals, typically consist of asset freezes and travel bans. The Union in particular adopts two types of sanctions: (1) individual sanctions implementing lists of terrorist suspects drawn up by the UN Sanctions Committee, 1 and (2) sanctions based on EU-managed lists (autonomous EU sanctions regime). Both types of European sanctions against individuals have triggered wide-spread concern amongst human rights lawyers. (3) The Parliamentary Assembly of the Council of Europe went as far as calling the practice ‘unworthy’ of an international body such as the EU. (4) Besides arguments that they infringe substantive rights, a majority agrees that they do not comply with the procedural rights guaranteed in the European legal order. In December 2006, five years after the autonomous sanctioning regime of the Union was introduced, the Court of First Instance (hereafter, CFI) annulled for the first time an EC Council decision declaring a legal entity a terrorist organisation and freezing its assets (case of OMPI). The Court found fault with the fact that those listed could not exercise their rights of the defence, that they were not even notified of their listing or informed of the underlying reasons, and that they could not exercise their right to an effective judicial remedy.
Keywords: individual sanctions, cases of OMPI, Sison and Segi, right to a fair hearing, duty to give reasons, right to judicial protection
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