Wednesday, January 28, 2009

EU Terror List (no. 2): Another Victory for the Rule of Law

In a previous post, I mentioned a recent judgment of the EU Court of First Instance annulling the decision of the Council of the EU to include the People's Mujahideen Organisation of Iran (PMOI) in the EU list of banned terrorist groups (the French Republic has regrettably decided to appeal this judgment).

The Council, i.e. the national governments of the Member States, reluctantly agreed last Monday to remove this organization from the list. “What we are doing today is abiding by the resolution of the European court,” said EU foreign policy chief Javier Solana.  

It is widely believed that the PMOI’s inclusion in the EU Terror list was a “carrot” offered to Teheran - the PMOI is Iran's main opposition group - to persuade it to be more “flexible” in the negotiations surrounding its nuclear program. Regardless of the reasons behind the initial inclusion of the PMOI in the EU Terror list, it is simply unbelievable that EU national governments thought they could get away with a system that so clearly makes it impossible for the persons accused of terrorist activities to effectively challenge decisions affecting so dramatically their rights and interests.

In legal terms, the Council’s decision to delist the PMOI took the form of a new a common position 2009/931/CFSP updating common position 2001/931/CFSP on the application of specific measures to combat terrorism and of a new Council decision 2009/62/EC implementing article 2(3) of regulation 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. For non-experts, it is virtually impossible to realize that the PMOI has been delisted. Indeed, recital 5 of Council decision 2009/62/EC merely indicates that “[f]ollowing the judgment of the Court of First Instance of 4 December 2008 in Case T-284/08, one group has not been included in the list of persons, groups and entities to which Regulation (EC) No 2580/2001 applies."

For those who are not rebutted by EU legalese, you can find the full-text of these two acts in the EU Official Journal (27.1.2009, L 23/25 and L 23/37). The lists of the persons, groups and entities subject to the measures are annexed to the common position and to the Council decision. It may be worth noting that the two lists are not entirely identical. The list annexed to the Common position 2009/931/CFSP refers to 59 persons and 47 groups while the list annexed to the Council decision 2009/62/EC includes 28 persons and 29 groups which are already included in the Common position’s list. As I understand it, the Council decision only mentions those who are subject to “specific restrictive measures” as provided for in Regulation 2580/2001. Among the most widely known entities subject to those restrictive measures, one may mention Hamas, the Kurdistan Worker’s Party and the “Shining Path”. 


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