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kadi: rights of defence must be protected in substance, not merely in form October 1, 2010

Posted by Bradley in : fundamental rights , trackback

The EU’s General Court yesterday annulled the EU’s latest attempt to freeze Yassin Abdullah Kadi’s funds, noting that the funds had been frozen for a period of 10 years:

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

The Court neatly ducks the issues of whether the Court of Justice’s 2008 Kadi judgment is consistent with international law:

..the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is a fortiori the case when, as here, the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters following the judgment of the Court of Justice in Kadi, it is for the Court of Justice itself to provide that answer in the context of future cases before it.

The General Court states that developments since 2008 (for example the appointment of an Ombudsman) have not ensured an effective judicial procedure for review of decisions of the Sanctions Committee. And that the Commission never really engaged in any real attempt to give effect to Kadi’s rights of defence:

In the context of a judicial review which is ‘in principle the full review’ of the lawfulness of the contested regulation in the light of the fundamental rights .. and in the absence of any ‘immunity from jurisdiction’ for that regulation .., the arguments and explanations advanced by the Commission and the Council – particularly in their preliminary observations on the appropriate standard of judicial review in the present case – quite clearly reveal that the applicant’s rights of defence have been ‘observed’ only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committee’s findings and therefore at no time envisaged calling those findings into question in the light of the applicant’s observations.
..By the same token, the Commission … failed to take due account of the applicant’s comments and as a result he was not in a position to make his point of view known to advantage.
.. Furthermore, the procedure followed by the Commission, in response to the applicant’s request, did not grant him even the most minimal access to the evidence against him. In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other…
In those circumstances, 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.

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