The European Court of First Instance has recently annulled the Council Regulation freezing the assets of Omar Mohammed Othman also known as Abu Qatada.
Abu Qatada is a Jordanian citizen who has been living in the UK since 1993. He has been arrested several times under the Anti-Terrorism, Crime and Security Act 2001. In October 2002 he was arrested and held in Belmarsh Prison till March 2005, however his ‘detention without trial’ was considered unlawful and the European Court of Human Rights decided that he should be compensated by £2,500. In the meantime, the Government decision to deport Abu Qatada to Jordan, upheld by a judgment of the House of Lords of February 2009, is suspended since he has brought an action before the European Court of Human Rights.
According to several resolutions adopted by the Security Council, all Members of the United Nations must freeze the funds and other financial resources controlled directly or indirectly by members of the Al-Qaeda network and the Taliban and other associated individuals, groups, undertakings and entities.
In October 2001, Abu Qatada was associated with Osama bin Laden, Al Qaida and the Taliban by the Sanctions Committee of the Security Council of the United Nations who included him in its list of the entities and persons who must be subjected to the freezing of funds pursuant to Security Council Resolutions.
In order to implement the Security Council resolutions, the Council of Ministers of the EU adopted Regulation 467/2001 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. Hence, the EU list of persons and groups suspected of terrorism and whose funds have been frozen was set up in 2001 and has been updated several times to take into account the changes in the Sanctions Committee list.
Qatada’s name was included in the EU list of terrorist suspects in 2001, consequently, he has brought an action for annulment of Regulations 467/2001 and 2062/2001, in so far as it concerns him, before the Court of First Instance. In the meantime, the applicant has amended his claim in order to seek annulment of the contested regulation that repeals and replaces Regulation 467/2001.
It is important to mention that last September, the European Court of Justice annulled the Council Regulation freezing the assets of Yassin Abdullah Kadi and the Al Barakaat International Foundation. In its ruling the ECJ has affirmed the jurisdiction of the EU Courts to review the implementation of UN Security Council Resolutions and to guarantee their compliance with human rights. Moreover, the ECJ held that the rights of the defence and the right to effective judicial review were clearly not respected. The Court held that because the Council failed to communicate to the appellants the evidence used against them to justify the restrictive measures imposed on them the appellants’ rights of defence and the right to an effective legal remedy have been infringed. Moreover, the ECJ also held that the imposition of the restrictive measures established in the contested regulation such as freezing of funds constitutes an unjustified restriction of Mr Kadi’s right to property.
Last October, unsurprisingly, the applicant lodged observations at the Registry of the Court of First Instance developing new arguments in connection with the plea alleging breach of his fundamental rights. The applicant argued that he was in the same situation as the applicants in the above mentioned cases. He asked the Court of First Instance to recognise, in the light of Kadi case, that the contested regulation infringes his rights of defence, his right to an effective legal remedy and his right to property, therefore, it must be annulled in so far as it concerns him.
Referring to the Kadi case, the CFI noted that the ECJ annulled the Council’s regulation freezing the funds of two applicants on the grounds that the Council had adopted it «in breach of their fundamental rights, in particular the right of defence, the right to effective judicial review and the right to property.» The same conclusions were drawn in the Qatada case. The CFI considered that the applicant alleged breach of his rights of defence and right to effective judicial review were well founded as well as the alleged breach of the fundamental right to property.
The Court concluded that the Council adopted the regulation in breach of Abu Qatada’s fundamental rights. Therefore, the Court annulled Council Regulation 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation 467/2001, in so far as it concerns Abu Qatada.
As James Slack wrote in the Daily Mail “The verdict, reached on human rights grounds by the EU's Court of First Instance, paves the way for the fanatic to receive a compensation payout controversially awarded against the British Government earlier this year.”
The decision of the Court of First Instance declaring a regulation to be void only takes effect after expiry of the period for lodging an appeal before the Court of Justice, two months and ten days from notification of the judgment or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. According to the CFI the Council has enough time to “remedy the infringements found by adopting, if appropriate, a new restrictive measure to be imposed on the applicant.” Hence, the Court has stated that “the danger of serious and irreversible prejudice to the effectiveness of the restrictive measures imposed by the contested regulation and which the Community is required to implement, invoked by the Court of Justice in Kadi (…), does not appear to be sufficiently great in the present case” in order to justify maintaining in force the effects of the regulation beyond the abovementioned period.
