Luxembourg, 05/06/2002 (Agence Europe) - Three "Taliban" affairs are currently being examined by the European Court of First Instance. Swedes of Somalian origin, a Saudi and a Jordanian national as well as the Al Barakaat association are asking to be taken off the EU list of persons and entities whose financial assets are frozen because of their presumed link with the Al Qaida. The list established by the EU Council and since amended by the European Commission on several occasions, adopted without change the list of the UN committee on sanctions against the Taliban.
Saudi national Yassin Abdullah Kadi, who lives in the UK, reproaches the Council and the Commission for having transposed the United Nations' list without any independent assessment by the Community institutions. He also claims the freeze on his assets is an attack on his property rights protected by Community law. Jordanian national Omar Mohamed Othman, also living in the UK, considers the Council and the European Commission have gone beyond their powers in breach of the Human Rights Convention.
Three Somalians of Swedish nationality
The three Somalians of Swedish nationality - Abdirisak Aden, Abdi Abdulaziz Ali, Ahmed Ali Yusuf - and the Al Barakaat International Foundation have already been the subject of an order from the Court's president. Bo Vesterdorf refused to allow them provisional access to their bank accounts pending the ruling of the Court on the substance of the matter. It is not urgent, he explained. Like the others, Abdi Abdulaziz Ali did not prove he was seriously destitute because his assets had been frozen. The housing allowance has naturally been frozen for two of the three and Abdirisak Aden no longer receives his student grant, but all are entitled to family allowance that they "necessarily receive indirectly". Mr Aden and Mr Ali, who did not request social assistance, have only themselves to blame and should do what is necessary. The three Swedish nationals may therefore await the ruling on the substance of the affair, concludes Bo Vesterdorf (Ed. Which will probably not come before next year).
Most of the members of the Sanctions Committee against the Taliban took a stance in favour of lifting the sanctions against the Somalians but their names remained on the list because of the opposition of three States including the United States (the two others were not named).
The complainants noted the injury that they had suffered: dismissal for one of them, impossibility to find employment and death threats. They also say it has been impossible for them to take court action against the banks because their insurance company refuses to allow them coverage for the safeguarding of legal rights.
Regarding the Al Barakaat International Foundation, which said serious injury had been suffered due to the fact that it could no longer pursue its normal activity, the President of the Court settled the matter by stating that injury cannot be considered serious as the association is non-profit making.
The Foundation has set up a system for transferring funds between Sweden and Somalia. For example, a Somalian living in Sweden makes a deposit with the Foundation which then transfers the amount via Swedish banks to the Al Barakaat Bank established in the United Arab Emirates. The Foundation, in Sweden, makes payments to the Somalian beneficiary through the intermediary of a "trustworthy person". It then charges a 5% commission on the amounts transferred and itself pays a 3.5% commission to the Al Barakaat Bank.
UN list and Community list
According to observers, the key question is that of knowing whether the Commission and the Council had a margin of manoeuvre and could do anything other than simply taking the UN list as such. The five complainants, who are defended by members of the English and Swedish bars, consider they could have done. The Commission maintains that the Member States like all UN member countries were bound by the United Nations resolution and the decisions of the Sanctions Committee.
EUROPE recalls that, on 15 October 1999, the United Nations Security Council had adopted Resolution 1267 calling on the Taliban to give up Osama bin Laden "immediately"; decided to free the funds and other financial resources of the Taliban; and created a sanctions committee against the Taliban responsible for ensuring that the States implement the measures for carrying out the freeze on Taliban funds.
On 6 March 2001, the Council took this UN list and empowered the Commission to modify or complete it according to the decisions reached by the UN Security Council or the Sanctions Committee. The European Commission amended the list several times, adding as it went along the name of the five persons and of the foundation, which challenge it.
Further to the attacks on 11 September, the EU produced its own independent list in December 2001. It was divided in two parts: one provides for financial sanctions for the extra-Community terrorists, and the other establishes a list of intra-Community terrorists (organisations of the Basque Country and Northern Ireland among others; see EUROPE of 29 December 2001) without ready made financial sanctions.