Brussels, 14/07/2011 (Agence Europe) - With her opinion delivered in Case C-27/09 P on Thursday 14 July, Advocate General Eleanor Sharpston suggests that the Court reject the French government's appeal against the General Court's judgment on December 2008 removing the People's Mojahedin Organisation of Iran (PMOI) from the EU terrorist list.
This ruling, in Case T-284/08, annulled the Council Decision of 15 July 2008 which included the PMOI on the European list of terrorist organisations and ordered its funds and other financial assets to be frozen. The inclusion of the PMOI was based on information provided by the French government as to: - (i) the opening of a judicial inquiry by the anti-terrorist prosecutor's office of the Tribunal de grande instance de Paris (Regional Court, Paris) in 2001; - (ii) two supplementary charges brought in 2007 against persons presumed to be members of the PMOI.
The General Court noted that this information was communicated by the Council to the PMOI on the day the decision was adopted, rather than before (as is required by the procedure laid down), thereby constituting a violation of the PMOI's rights of defence. The General Court took the view, too, that the two supplementary charges did not constitute a decision by a competent authority, in respect of the PMOI itself, noting that no reasons were advanced as to why the acts ascribed to the alleged members of the PMOI should be attributed to that organisation itself. Furthermore, it found that, by failing to communicate to the Court certain information about the case which the French authorities refused to declassify, the Council had equally infringed the fundamental right of the PMOI to effective judicial protection.
Advocate General Sharpston partially subscribed to these arguments, indicating that there was nothing to prevent the Council from providing the information to the PMOI before adopting a decision maintaining it on the list and freezing its assets. She said that the Council should have adopted a decision with regard to the other persons on the list within the timescale required but deferred adopting a decision in relation to the PMOI until such time as it had had the opportunity to notify the PMOI and consider that organisation's response. However, by taking a single decision dealing simultaneously with all the persons and organisations on the list, the Council committed an error sufficient to lead the advocate general to uphold the General Court ruling and to recommend that the French government's appeal be rejected.
Other points in the ruling allow Sharpston to suggest a number of improvements that could be made to procedures to ensure an appropriate balance between the need to combat terrorism and the respect of fundamental rights and to help member states in other similar cases.
Thus, as to whether the opening of a judicial inquiry in 2001 and the supplementary charges brought against individuals suspected of being members of the PMOI (see above) constituted a decision by a competent authority, she first considers that the requirement that a national decision be taken “in respect of the persons, groups or entities concerned” must be interpreted broadly. As such, it is not necessary, in her view, that the national decision name precisely the same persons or organisations as the EU decision. It is sufficient that “there exist serious and credible evidence and clues that the persons named are essentially the same”.
As to the nature of the national decision, the advocate general takes the view that a simple decision to initiate investigations is not, of its own, enough. In her opinion there needs to be serious and credible evidence or clues “which are strongly suggestive of a terrorist act and significantly more than mere suspicion or hypothesis”. The two French decisions taken together could not provide a valid basis for the Council decision as no evidence was brought that the investigations launched in 2007 against alleged members of the PMOI could be said to be directed against the PMOI itself.
Finally, the advocate general takes no issue with that Court's finding that the Council's refusal to communicate the information in question resulted in the General Court being unable to review the lawfulness of the decision. However, there are no specific provisions in that Court's Rules of Procedure for dealing with information that needs to be communicated to the Court but not to the other party in the case and it was not possible for that Court to offer the Council any assurance that the confidential information would not, at some point, have to be communicated to the PMOI. As a result Advocate General Sharpston suggests that changes be made to the Rules of Procedure and principles be outlined so as to allow the use of such confidential information where necessary to combat terrorism, whilst simultaneously ensuring respect of the rights of defence and the right to effective judicial protection. (F.G./transl.rt)