ECJ declares DHKP-C inclusion on the list invalid after German court asks preliminary question

In E and F the Grand
Chamber considered another terrorism case, concluding that the
organisation DHKP-C’s inclusion on the terrorism list was unlawful prior
to 29 June 2007, for failure to give reasons, meaning that such inclusion “can form no part of the basis for a criminal conviction
linked to an alleged infringement of
Regulation 2580/2001” (par.
62).

ECCHR comment:

Proceedings began when the Düsseldorf Higher Regional Court submitted a question to the ECJ pertinent to its criminal proceedings against two Turkish left wing activists, accused of collecting donations for a listed organization. They submitted a preliminary question concerning the validity of the listing.

The charge consists of supposed violations of the AWG in the context of alleged membership of the DHKP-C. However, almost all concrete allegations put forward referred to work done for legal cultural organizations, solidarity work to ameliorate human rights violations in Turkish prisons and financial support of political prisoners. Nonetheless, the Office of the Federal Prosecutor has declared their actions to be in violation of Article 34 para. 4 of the German Foreign Trade Act. This regulation criminalizes those who “act contrary to a legally binding prohibition of export, sale, delivery, provision, transfer, service, investment, assistance or circumvention laid down in an act of law of the European Communities which was published in the Federal Gazette and serves the implementation of an economic sanction adopted by the Council of the European Union in the field of the common foreign and security policy.”

This blanket criminal law regulation refers to the so-called EU-Terrorism Lists. The list was implemented on the basis of an order by the European Court (2580/2001) and established by the Council of the EU. The list, which is reviewed bi-annually, lists groups and individual persons as “terrorist” and authorizes the freezing of their assets. Pursuant to the EU Order 2580/2001, it is prohibited to send either money or assets, whether directly or indirectly. Following the so-called double reference in Art. 34 para. 4 AWG both the Order and the list were incorporated into domestic criminal law. The DHKP-C is one of the organizations included on the list.

The ruling as announced by the ECJ (Rs. C-550/09) declares that the inclusion of the DHKP-C on the EU Terrorist List is invalid and cannot be used to shore up a conviction for the period prior to 29. June 2007 that is tied in with this alleged violation. Following the initial implementation of the List in 2002, it was not until 28. June 2007 that the Council amended the listing procedure to enable those listed to request information regarding the reason for their inclusion on the list. The ECJ declared that „The failure to provide a justification for the inclusion of the DHKP-C on the List was a deliberate attempt to impede adequate judicial checks on their material lawfulness, including above all a reevaluation of the facts of the case and the evidence and information upon which they were based” (Judgment para. 57).

Given this, a criminal sentence for violations of Art. 34 para. 4 AWG for the time period prior to June 2007 is per se not possible. Any sentence imposed for activity after 29. June 2007 fundamentally depends on whether the Council’s justification for the listing is sufficiently substantiated to allow for an effective defense and adequate judicial control. However, as this was not the subject of the preliminary question, and because no justification for the DHKP-C’s inclusion has been released to date, the ECJ has not yet been able to pass judgment on this.

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