Dr. Aghenitei Mihaela
Braila, ROMANIA
Published "Nav Pravah" Sept. 2011 Issue
ABSTRACT
1 . The European Court of Human Rights commented in Engel: "the very nature of the offence and the degree of severity of the penalty that the person concerned risks incurring are of great importance in the meaning of that Article 6." In the Öztürk case the European Court of Human Rights declared that the general character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offence in question was, in terms of article 6 of the Convention, criminal in nature. In terms of the sanction test of the European Court of Human Rights, the United Nations and the European Union sanctions would seem to have a criminal element - terrorism related activity and the impact of some of the measures imposed rises to the level of criminal sanctions. It is obvious that penalties under criminal law are the only sanctions which are criminal in nature. 2. Contrary to the sanction concept of the European Court of Human Rights, the Third Report stated without proper reasoning that although many of those on the list have been convicted of terrorist offences and others indicted or criminally charged, the list is not a criminal list… the sanctions do not impose a criminal punishment of procedure… but instead apply administrative measure such as freezing assets, prohibiting international travel and precluding arms sales." However, most assessments recognize that the effect of these preventive measures is "de facto punitive". The debate as to the criminal or non-criminal nature of sanctions has no great importance in determining the scope of fair trail standards, since Article 6 of the European Court of Human Rights guarantees a "fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" in the case of both civil and criminal charges. If the charges are not civil or criminal then Article 13 of the European Court of Human Rights, providing an "effective remedy", still applies. Article 14 of the International Covenant on Civil and Political Rights, provides a similar set of fair trial guarantees. However, the Court of First Instance verdict in Sison v. Council of the European Union has been an important point in this debate since Sison arguments concerning the criminal character of sanctions were accepted. The conclusion is that the very nature of the offences concerned and the purpose and the degree of severity of the sanctions bring these sanctioning regimes within the scope of fair trial standards and the judicial system: the person blacklisted by the European Union Council, including United Nation Security Council lists, shall be given the right to a fair hearing, within a reasonable time, by an independent, impartial tribunal with a view to modifying or annulling the charges and the sanctions, that would obviously require a clear definition of the grounds for the imposition of sanctions and the applicable evidentiary requirements determined by law. The applicant shall be entitled to a judicial remedy.3 considering the European Union and the United Nations Security Council counterterrorist sanctioning regime as a limitation of due process is a seriously misleading approach. As the further analysis is going to show, with regard to the above- mentioned process the right of access to an effective remedy before a judicial body is not imply restricted, but is totally excluded and disregarded. As the European Court of Human Rights held in Chahal v. United Kingdom concerning blacklists, the restrictions on fair trial rights for security reasons do not justify the complete absence of such rights.Calea Calarasilor nr. 47, Braila, jud. Braila, ROMANIA (Ph. D.)
The so-called "blacklisting" mechanism has been creating lists of individuals or organizations suspected of involvement in terrorism-related offences and imposing financial sanctions against them, such as freezing funds or other economic resources and travel restrictions.
The United Nations Security Council and the European Union counterterrorist sanctioning decisions oblige states to freeze the funds and other financial assets or economic resources, including funds derived from property owned or controlled directly or indirectly, prevent the entry into or the transit through their territories: prevent the direct or indirect supply, sale or transfer of arms and related material, including military and paramilitary equipment, technical advice, assistance or training related to military activities, with regard to the individuals, groups, undertakings and entities placed on the Consolidated List. Those sanctions restrict a larger number of fundamental human rights. The comprehensive travel restrictions found in the blacklist regimes potentially violate individuals' rights to life, to health, the private and family life, to reputation, to freedom of movement and to freedom of religion. The financial sanctions which freeze funds and other economic resources impact on the right to property and the right to work.
On the other hand, the way in which blacklist-based restricting measures, can comply with due process standards and it must to rethink the role and the possible rehabilitation of criminal justice in the international counterterrorist sanctioning process.
KEYWORDS
"The supranational administrative - type counterterrorist sanctions", "criminal justice system", "blacklist", "United Nations Security Council", "the Council of European Union"1. In 2001 the Council of the European Union adopted Common Position 2001/1930/CFSP and 2001/1931/CFSP on specific sanctions to combat terrorism. In order to implement the measures described in the aforementioned Common Position, the Council adopted Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. Regulation No 2580/2001 empowered the European Union Council itself, and not just the United Nations Security Council, to maintain its own list of people and entities to whom the sanctions could be applied. The United Nations Security Council lists who included United Nations Security Council Resolutions 1267/1999 and 1333/2000, were implemented under Regulation (EC) No. 467/2001. The Council has adopted several common positions and decisions updating both sets of lists, herein after, references to European Union measures will also include United Nations Security Council lists.
The "blacklisting" mechanism has been creating lists of individuals organizations suspected of involvement in terrorism-related offences and imposing financial sanctions against them, such as freezing funds or other economic resources and travel restrictions. In 1999, the United Nations Security Council passed the first Resolution 1267 which provided for sanctions against the Taliban regime in Afghanistan. The Resolution was followed by the Resolutions 1333/2000, 1390/2002 or reiterated in Resolutions 1455/2003, 1526/2004, 16171/2005, 1735/2006 and 1822/2008, expanding the list of sanctioned individuals.
The United Nations Security Council and European Union Counter-terrorist sanctioning decisions oblige states to freeze the funds and other financial assets or economic resources, including funds derived from property owned or controlled directly or indirectly, prevent the entry into or the transit through their territories; prevent the direct or indirect supply, sale or transfer of arms and related material, including military and paramilitary equipment, technical advice, assistance or training related to military activities, with regard to the individuals, groups, undertakings and entities placed on the Consolidated List. Those sanctions restrict a large number of fundamental human rights. The comprehensive travel restrictions found in the blacklist regimes potentially violated individuals' rights to life, to health, to private and family life, to reputation, to freedom of movement and to freedom of religion. The sanctions which freeze funds and other economic resources impact on the right to property and the right to work.2. Those sanctions are generally seen as an administrative - labelled sanctioning system which aims at discarding and excluding international as well as national criminal justice review.
The reasons and justification for taking this counterterrorist sanction policy out of criminal justice system are due to the need for efficiency, urgency and the surprise effect in the enforcement of sanctions, therefore priority is given to proactive sanctioning interventions rather than deterrent responses after the criminal event. Before we plead for supranational administrative type counterterrorist sanctions to be transferred to the criminal justice systems, we must take into account the weakness and efficiency problems of international and national criminal justice systems in relation to "the transnational war on terrorism". Through administrative labelling the international administrative - type special bodies qualify themselves as a more efficient and more responsive vehicle to address terrorism and the criminal justice system is seen as an old-fashioned, inefficient way to impose, enforce or control counterterrorist sanctions. By creating pseudo-criminal sanctions, the efficiency problems of the criminal regime are placed into a more uncertain sphere which opens the door to sanctions applied without proper judicial guarantees and due process standards.
The resolution of the 14th International Congress of the International Association of Penal Law (1989) stated that administrative labelling efficiency and proactive reasoning cannot justify the lack of fair trial standards: "administrative - type retributive sanctions require application of the basic principles of criminal law and of due process. Special emphasis was put on the defendant's right to be informed of the charges and evidence brought against him, the right to be heard, including the right to present evidence and the recourse to the judiciary and to adversary proceedings should be possible."
In terms of the legal nature of the United Nations and the European Union sanctions, the autonomous concept of a "criminal charge" and sanction in the case law of the European Court of Human Rights requires fair trial standards to apply
In the view, irrespective of the criminal / civil or administrative legal nature of the suspicious terrorism-related offence as the substantive bases of the sanction and the sanction itself, the point is that behind the administrative label, the European Union counterterrorist measures - freezing and travel sanctions - are seriously restricting fundamental rights, such as the right to property, the right to work and the freedom of movement. Some analyses stress those freezing assets and economic resources for an uncertain period of time are neither criminal punishment nor based on criminal charges
Some proponents of the current system say that even if the fair trail standards of the European Court of Human Rights shall apply to the counterterrorist sanctions, the right of access to an independent court can be reasonably restricted. The Court of First Instance concluded similarly declaring that it is not improper to place limitations on the right to judicial access due to the nature of the United Nations Security Council resolutions on the United Nation's legitimate objective of protecting international peace and security. The European Court of Human Rights and the European Court of Justice case law generally determines that for limitations on court access or fair trial rights based on national security concerns, there must be "a reasonable relationship of proportionality between the concerns for the protection of national security invoked by the authorities and the impact which the means they employed to this end had on the applicants' right of access to a court or tribunal". The restriction of the right of the person concerned to contest any allegation before the listing or certain pre-trial restricting measures can be acceptable and justifiable in proportion to security or efficiency concerns.
In Sison v. Council, the Court of First Instance annulled Council Decision 2006/379/EC of 29 May 2006. The Court found that if a statement of reasons is not supplied to individuals or entities at the time of listing, the right of defence and the right to effective judicial protection are disregarded.
In our view
In Chahal v. United Kingdom the Court stated: "The Court recognizes that the case of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts wherever they choose to assert that national security and terrorism are involved". This case demonstrates that even national security considerations do not permit a complete negation of individuals" fair trial rights under Article 6 of the European Court of Human Rights and especially not a complete denial offences to a court or tribunal. While the European Union courts have declined to address the underlying question of the lawfulness of the United Nations Security Council resolutions, under proportionality test as applied in Tinnelly and Chahal access to a court or some type of decision-making body is necessary even in cases involving national security and terrorism. This court or body would also need to be informed of a reasonable of the evidence supporting the changes. Yet, individuals of entities on United Nations of Human Rights blacklist are not allowed such access in clear violation of their fair trial rights and the proportionality test.
Reference :
1. N. Kis: "Problems of Administrative (Non-Criminal) Punitive Systems in the European Union", Studies on European Administrative Penal Law, HVG-Orac, Budapest, 2004, p. 28-65
2. The Third Report of the 1526 Sanctions Monitoring Team of the United Nations.
3. Norbert Kis, How to Return to Supranational Administrative - Type Counterterrorist Sanctions to the Criminal Justice System? Homage to Imre A. Wiener, Proceedings of the AIDP Regional Conference, IAPL nr. 22/ 2010 p. 111.
Lecturer at University "C. Brancoveanu", Pitesti, Romania
Associate researcher at the Legal Research Institute "Andrei Radulescu" of Romanian Academy
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