The Court continues in par.128:
In essence, the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee. Furthermore, neither the focal point mechanism nor the Office of the Ombudsperson affects the principle that removal of a person from the Sanctions Committee’s list requires consensus within the committee. Moreover, the evidence which may be disclosed to the person concerned continues to be a matter entirely at the discretion of the State which proposed that he be included on the Sanctions Committee’s list and there is no mechanism to ensure that sufficient information be made available to the person concerned in order to allow him to defend himself effectively (he need not even be informed of the identity of the State which has requested his inclusion on the Sanctions Committee’s list). For those reasons at least, the creation of the focal point and the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee (see also, in that regard, the observations made at paragraphs 77, 78, 149, 181, 182 and 239 of the UK Supreme Court judgment in Ahmed and Others and the considerations expressed in Point III of the Ninth Report of the Monitoring Committee).
129 In those circumstances, the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them (see also, to that effect, the UK Supreme Court judgment in Ahmed and Others, paragraph 81).
The Court further disagreed with the Commission and the Council that the ECJ gave no clear guidance to the extent and intensity of the judicial review had to be. The Court said that “the Court of Justice intended that its review, ‘in principle [a] full review’, should extend not only to the apparent merits of the contested measure but also to the evidence and information on which the findings made in the measure are based”.
The conclusion must therefore be that, by taking on the essential content of the General Court’s reasoning in OMPI, with regard to the alleged infringements of the rights of the defence and the right to an effective judicial review, the Court of Justice approved and endorsed the standard and intensity of the review as carried out by the General Court in OMPI.
The Court then summarizes the OMPI standard for judicial review of the lawfulness of a Community decision to freeze funds It states that it should adresses whether
- the evidence where the listing is based on is “factually accurate, reliable and consistent” and whether that evidence contains all the relevant information to be taken into account in order to assess the situation and whether it is capable of substantiating the conclusions drawn from it”. (par.142).
- the rights of the defence are observed and that the requirement of a statement of reasons is satisfied and also, where applicable, that any overriding considerations relied on exceptionally by the competent Community institution in order to justify disregarding those rights are well founded. (par.143)
It adressed the difficulty of this review resulting from the secret or confidential information that form the basis of the Council’s decision to list somebody.
145 In that regard, the General Court further stated, at paragraph 73 of PMOI II, that the Council is not entitled to base its decision to freeze funds on information or material in the file communicated by a Member State, if the said Member State is not willing to authorise its communication to the Community judicature whose task is to review the lawfulness of that decision. At paragraph 76 of PMOI II, the Court stated that the refusal of the Council and the French authorities to communicate, even to the Court alone, certain information on which the measure contested in that action was based, had the consequence that the Court was unable to review the lawfulness of the contested decision. At paragraph 78 of PMOI II, the Court concluded that, in those circumstances, the applicant’s right to effective judicial protection had been infringed.
146 The General Court also noted in that regard, at paragraph 156 of OMPI, that, although the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is at stake, that does not mean, in that court’s view, that national authorities are free from any review by the national courts simply because they state that the case concerns national security and terrorism (see the judgment of the European Court of Human Rights in Chahal v United Kingdom, § 131, and case-law cited, and its judgment in Öcalan v Turkey of 12 March 2003, No 46221/99, not published in the Reports of Judgments and Decisions, § 106 and case-law cited).
147 The General Court added, at paragraph 158 of OMPI, that it was not necessary for it to rule, in the action before it, on the separate 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 so as to safeguard the public interests at issue whilst affording the party concerned a sufficient degree of judicial protection.
Those considerations, the Court argued, should be supplemented by certain considerations based on the “draconian” nature and effects of fund-freezing measures such as those at issue here, viewed from a temporal perspective. Very importantly the Court notes that Kadi’s funds have been indefinitely frozen for nearly 10 years now, and suggests that after such a long time such sanctions might amount to a criminal punishment. The Court hereby supports the UN High Commissioner for Human Rights and the UN Special Rapporteur on the protection of human rights while countering and discards the opinion of the Human Rights Committee in Sayadi Vinck.
In the scale of a human life, 10 years in fact represent a substantial period of time and the question of the classification of the measures in question as preventative or punitive, protective or confiscatory, civil or criminal seems now to be an open one (see also, in that connection, the Ninth Report of the Monitoring Team, paragraph 34). That is also the opinion of the United Nations High Commissioner for Human Rights who, in a report to the General Assembly of the United Nations of 2 September 2009, entitled ‘Report … on the protection of human rights and fundamental freedoms while countering terrorism’ (document A/HRC/12/22, point 42), makes the following statement:
‘Because individual listings are currently open-ended in duration, they may result in a temporary freeze of assets becoming permanent which, in turn, may amount to criminal punishment due to the severity of the sanction. This threatens to go well beyond the purpose of the United Nations to combat the terrorist threat posed by an individual case. In addition, there is no uniformity in relation to evidentiary standards and procedures. This poses serious human rights issues, as all punitive decisions should be either judicial or subject to judicial review.’
Unfortunately the Court however finishes with saying that “a discussion of this question is outside the scope of these proceedings as it is defined by the pleas set out in the application”.
The court then moves on to examine the infringement of the rights of the defence and of the right to effective judicial protection. It notes that “the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him so far as his alleged participation in terrorist activities is concerned”.
Interestingly the Court refers to the standards of the ECHR judgment in A and Others v United Kingdom to conclude that the applicant was not in a position to mount an effective challenge to any of the allegations against him and that the contested regulation was adopted in breach of the applicant’s rights of defence.
The Court ends this part of the judgment with an elaboration upon the procedural differences between the two Community regimes used for the freezing of funds.
186 The Community fund-freezing regime at issue in the cases culminating in the OMPI and PMOI I judgments is characterised by a two-tier procedure, one national, the other Community (OMPI, paragraph 117). Under that regime, the rights of the defence are in the first place effectively safeguarded as part of the national procedure, in which the party concerned must be placed in a position in which he can effectively make known his view on the evidence against him (OMPI, paragraph 119), subject to review by the national courts, or, as the case may be, the European Court of Human Rights (OMPI, paragraph 121). It is precisely those safeguards of the rights of the defence which exist at national level, subject to effective judicial review, which relieve the Community institutions of any obligation to provide fresh safeguards at Community level in relation to the same subject-matter (see, to that effect, OMPI, paragraphs 121 to 125).
187 In contrast to that first regime, the Community fund-freezing regime at issue in this instance – although it too has a two-tier procedure, one at United Nations level, the other at Community level – is characterised by an absence of any safeguards of the rights of the defence, which may be the subject of effective judicial review, at the level of the procedure before the Sanctions Committee (see paragraphs 127 and 128 above). It follows, contrary to what was held in the OMPI case, that the Community institutions are required to ensure that such safeguards are put in place and implemented at Community level (see also, to that effect, the Opinion of Advocate General Poiares Maduro in Kadi, point 54).
188 It follows from all the foregoing considerations that the second plea is well founded as regards both the first part alleging infringement of the rights of the defence and the second part alleging infringement of the principle of effective judicial protection (see, to that effect, the judgment of the Court of Justice in Kadi, paragraph 353).