Brussels, 05/07/2010 (Agence Europe) - In a judgment handed down on 29 June 2010 (case C-550/09), the Court of Justice of the European Union ruled that Council decisions adopted prior to June 2007 which included organisations on lists relating to measures for combating terrorism, in breach of basic procedural safeguards, cannot form any part of the basis for criminal proceedings against members of that organisation who are not on those lists. In its ruling, the Court largely accepted the arguments already developed by the General Court in its ruling T-228/02 of 12 December 2006.
It was through this and subsequent rulings that the General Court annulled the inclusion of several groups on the list of terrorist organisations, on the grounds that the Council decisions with regard to these groups had been adopted without any communication to those concerned of the specific reasons for their listing. The General Court decided that this violated the right to defence and that this omission had made substantive review by the Court impossible. This ruling forced the Council of Ministers, by a decision of 29 June 2007, to update the list of organisations concerned and then to provide them with a statement of reasons for their inclusion.
In the present case, the Court was responding to a number of questions put by the Oberlandesgericht Düsseldorf, which had to rule on the case of two activists with the Kurdish organisation DHKP-C, which was put on the list of terrorist organisations in 2002 and has featured on the list ever since. The two activists, identified only as E and F, were placed in pre-trial detention for membership of a terrorist group between August 2002 and November 2008 and for gathering funds for this organisation in contravention of German law, and criminal proceedings were brought against them. While the DHKP-C does, indeed, feature on the list of terrorist organisations and, so, has had its assets frozen under the terms of regulation EC N° 2580/2001, the Court pointed out that E and F were not themselves on the list relating to the freezing of funds, and consequently, unlike the DHKP-C, did not have an indisputable right to bring an action before the General Court for annulment of that listing. Furthermore, the Court noted that none of the Council decisions prior to June 2007 was accompanied by a statement of reasons relating to the legal conditions for the application of the Regulation to the DHKP-C. E and F were therefore denied “the information necessary to enable them to verify whether the inclusion of DHKP-C on the list during the period prior to 29 June 2007 was well founded and to check, in particular, the accuracy and relevance of the evidence on which that listing was based, despite the fact that it was one of the grounds of the indictment drawn up against them”. The Court noted, too, that the decision of June 2007 could not, under any circumstances, legitimate ex post facto the inclusion of the DHKP-C on the list and be relied upon as a basis for a criminal conviction in respect of facts relating to the period before its entry into force. Accordingly, the Court decided that it was for the national court to decline to apply, in the proceedings before it, the Council decisions adopted before June 2007, which consequently cannot form any part of the basis for criminal proceedings against E and F in respect of the period prior to 29 June 2007. (F.G./transl.rt)