Luxembourg, 12/02/2007 (Agence Europe) - In a ruling on Thursday 1 February, the Court recognised that the Council had the authority to keep certain documents regarding counter-terrorism secret. Under this ruling, Mr Jose Maria Sison, who was on the Council's list of terrorist organisations of 29 May 2006, is therefore refused access to documents explaining why he is included on the list.
We recall that the procedure establishing the list of terrorist organisations is due to undergo revision further to the ruling T-228/02 of last December, when the Court of First Instance had judged that the proceedings carried out behind closed doors had violated the right of defence of the Organisation des Modjahedines du people d'Iran (OMPI), as it should at least have been able to challenge the decision. The EU Council jurisconsult, Jean-Claude Piris, had then told the press that the Council was willing to improve its procedures in accordance with this ruling, on one hand by making them clearer and more transparent, and, on the other, by communicating to the persons concerned the reasons, in fact or in law, for their inclusion (see EUROPE 9326).
It should be noted that these new procedures do not apply systematically. We recall that Mr Piris had stipulated that transparency of the procedure remained subject to the prerogatives of practicability and security. Concerning practicability, certain organisations in question are known to be difficult to contact. As far as security is concerned, some motivations must not fall into the public domain or even be communicated to the accused, for reasons of public security.
It is the second argument that concerns Mr Sison's case most of all. The Council had decided on three occasions that the documents referring to the decision concerning Mr Sison were too sensitive to be revealed. Mr Sison referred the matter first of all to the Court of First Instance, calling on it to annul refusal to access. After being ruled out of court (Joint Affairs T-110/03, T-150/03 and T-405/03), Mr Sison initiated action at the Court of Justice, attacking the Court of First Instance's refusal for failure to found its judgement on the content of the documents in question, but solely on questions of law. How, asked Mr Sison, could the Court of First Instance form an opinion concerning the sensitivity of documents without knowing what those documents contained? The Court, however, came into line with the Court of First Instance's opinion. Once the Council's competence for assessing the sensitivity of documents is confirmed, there is no reason to verify whether the assessment is correct in the documents themselves (C-266/05 P).
It therefore remains to be seen whether the Council truly applies more transparency in the procedure concerning the list of terrorist organisations and persons. In a press release dated 30 January, it stated that it would be providing the OMPI with a statement on the reasons for being kept on the list, and would then give OMPI one month in which to react. However, when questions were put to him on the phone, one of the Modjahedin representatives said he was not very pleased with the declaration received. The argument justifying the continued inclusion on the list of OMPI would be “totally illegal”, pounded out Jean-Pierre Spitzer, a lawyer. Mr Spitzer is planning a meeting with his client next week to discuss what should be done next. EUROPE will come back to this. (cd)