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asset freeze: the italian limbo December 7, 2010

Posted by Bradley in : fundamental rights , trackback

In something of a contrast to the decisions in the Kadi litigation (see, e.g., this September 2010 decision), the General Court has found that Sofiane Fahas’ right to be heard was respected:

In the present case, a statement of reasons was sent to the applicant by the Council on 3 January 2008, following the adoption of Council Decision 2007/868/EC implementing Article 2(3) of Regulation No 2580/2001and repealing Decision 2007/445/EC (OJ 2007 340, p. 100), the wording of which was identical to that of earlier decisions mentioning his name. The applicant submitted his comments in a letter of 14 March 2008. The Council considered the content of that letter before deciding to retain the applicant’s name in the list at issue in the contested decision. In the letter sent to the applicant on 15 July 2008, which enclosed both the contested decision and a statement of reasons which was identical to those for earlier decisions mentioning his name, the Council stated that, after considering the applicant’s letter of 14 March 2008, it had come to the view that there was no new evidence on the file to justify a change in its position and that the statement of reasons previously notified to the applicant remained valid. It follows that, as regards the right to be heard, the Council gave the applicant the opportunity to submit his comments on the statement of reasons.

In Kadi, the Court treats the EU institutions’ actions as representing merely the formality of seeming to respect the right to be heard. In Fahas, the Court emphasises that the listing is based on the decision of an Italian investigating judge. But a decision made in 2000, long before the 2008 actions and before the 2010 decision of the Court. The basis for the original listing was that an investigating judge in Naples issued a provisional arrest warrant on 9 October 2000 on a charge participating in a conspiracy to establish a cell of the ‘Al Takfir and Al Hijra’ group in Italy. The Court says:

By justifying its action by reference to a decision of an investigating judge of a Member State and informing the applicant, by the letter of 15 July 2008, of the grounds for including him in the list at issue, the Council fulfilled its obligations under Community law.

It seems rather shocking that EU law can to some extent redress the lack of protection of rights in the Security Council (which is problematic in terms of international law) but not the apparent lack of protection of rights in the justice system of an EU Member State. The Court says it cannot do anything about what is happening in Italy:

it should be noted that the General Court does not have the power to review compliance with national criminal procedure. Such review may be carried out only by the Italian authorities or, if the party concerned brings an action, the competent national court. Likewise, in principle, it is not for the Council to decide whether the proceedings opened against the party concerned and resulting in such a decision, as provided for by the law of the relevant Member State, were conducted correctly, or whether the fundamental rights of the party concerned were observed by the national authorities. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights..

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