Kadi II: Fundamental Rights and International Terrorism

In its judgment in Kadi II (18 July 2013), the Court of Justice of the European Union (Grand Chamber) sought to ascertain the content of procedural rights of suspected terrorists and strike a balance between the imperative need to combat international terrorism and the protection of fundamental rights and freedoms of suspected terrorists.

The Court’s judgment in Kadi II throws new light on the level of intensity of judicial review of errors of fact in human rights cases and on the content of the rights of defense of suspected terrorists.

Mr Kadi’s assets and other economic resources had been frozen pursuant to Council Regulation (EC) No 881/2002, an EU legislative measure designed to implement a United Nations Security Council resolution on the freezing of assets of the organisations, entities and persons identified by the United Nations Sanctions Committee as associated with Osama bin Laden, the Al-Qaeda and the Taliban. No evidence justifying the restrictive measures imposed on him had been communicated to Mr Kadi.

Following the European Court of Justice’s judgment in Kadi I according to which Mr Kadi’s rights of defence, effective judicial protection and property had been infringed, the European Commission communicated to Mr Kadi the summary of reasons provided by the United Nations Sanctions Committee and gave him the opportunity to comment. Neither the Commission nor Mr Kadi was put in possession of evidence other than this summary of reasons. The Commission subsequently adopted Regulation No 1190/2008, which maintained Mr Kadi’s listing as a person whose assets are to be frozen.

In Case T-85/09 Kadi v Commission [2010] ECR II-5177 (Kadi II), the General Court annulled Regulation No 1190/2008. The European Commission, the Council of the European Union and the United Kingdom subsequently appealed to the Court seeking to have the General Court’s judgment set aside.

In Kadi II, the Court held on appeal that if the competent European Union authority finds itself unable to produce before the Courts of the European Union all information and evidence substantiating the reasons relied on against the individual, it is then the duty of the Court to base its decision solely on the material which has been disclosed to it. If that material is insufficient to allow a finding that a reason is well founded, the Court shall disregard that reason as a possible basis for the contested decision (para. 123).

The Court noted that overriding considerations pertaining to the security of the European Union, its Member States or the conduct of their international relations may preclude the disclosure of some information or evidence to the person concerned (para. 125). In such circumstances, it is for the Court to determine whether the reasons relied on by the Union authority as grounds to preclude that disclosure are well founded (para. 126). If those reasons do not preclude disclosure, the Court shall examine the lawfulness of the contested measure solely on the basis of the material that has been disclosed and may accordingly annul the contested decision (para. 127). On the other hand, if those reasons indeed preclude disclosure, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from security considerations or international relations (para. 128). Accordingly, the Union authority may disclose a summary outlining the information’s content, and the failure to disclose confidential information to the person concerned may affect the probative value of such evidence (para. 129).

The Court further held that the fact that the competent European Union authority had not made accessible to Mr Kadi and to the Courts of the European Union information or evidence which is in the sole possession of the Sanctions Committee or the country which proposed his listing cannot, as such, justify a finding that Mr Kadi’s fundamental rights had been infringed (para. 137), and that, contrary to the findings of the General Court, not all the reasons stated in the summary provided by the Sanctions Committee were insufficiently detailed and specific (paras. 140-142).

The appeals were eventually dismissed because the Court held that the operative part of the judgment under appeal can be seen to be well founded on legal grounds other than those maintained by the General Court in that information or evidence which might substantiate the reasons for freezing Mr Kadi’s assets was lacking (para. 163). The Court’s judgment in Kadi II throws new light on the level of intensity of judicial review of errors of fact in human rights cases and on the content of the rights of defense of suspected terrorists.

Menelaos Markakis has just completed the MJur at the University of Oxford and will start his DPhil at the same university in October 2013.

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