Luxembourg, 03/04/2007 (Agence Europe) - The controversy over the status for the People's Mujahideen of Iran (PMOI) is no longer reserved for the parties directly involved, or a few specialised lawyers. Several the members of the European Parliament have now given their support to the fight being carried on by the PMOI to be removed from the EU's list of terrorist organisations. According to these MEPs, this is a matter of respect for the rule of law on the part of the European institutions. However, the legal situation is not as clear as it appears at first sight, and is made even more complicated by matters of political topicality.
Keeping the PMOI on the list of terrorist organisations, the European Council would be flouting the ruling of 12 December of the Court of First Instance, which would be “absolutely unacceptable”, the Spanish vice-president of the Parliament, Alejo Vidal-Quadras, told the press. “As a member of the European Parliament, I can only say that I am saddened that the European Union is disregarding the rule of law in such a shameful way. How can we expect others to observe the law if we pay no heed to our judicial and legal institutions?”, he stated.
Mr Vidal-Quadras was speaking at a press conference, on Wednesday 28 March, during which the PMOI gained attention once again, on the Court's cancellation of its inclusion on the European list of terrorist organisations, dating from 2005 (see EUROPE 9326 for more about the case T-228/02). He was joined on the podium by Mr Struan Stevenson, the deputy president of the EPP-ED group, Mr Paulo Casaca of the Socialists group, Mr Jean-Pierre Spitzer, PMOI's defence lawyer, and Mr Firouz Mahvi, a member of the committee on foreign affairs of the Council of National Resistance of Iran (CNRI).
The ruling of the Court of First Instance
In May 2002, the PMOI was included on the European Union's list of terrorist organisations and persons, with the tangible effect of the freezing of its assets and funds, and considerable restrictions on the right of movements of its members. It immediately appealed to the Court of First Instance against this decision, arguing, amongst other things, a violation of defence rights, that it had not been informed in time of the reasons behind its inclusion on the list in order to contest them and, lastly, that there had been a manifest error of understanding (it has been at least six years since it has committed any terrorist acts).
After a four year-long procedure, the Court ruled in favour of the PMOI and the cancelling of its inclusion on the 2002 list, and all updates of the list carried out during the proceedings (up to and including, therefore, that of 21 December 2005). Under the terms of the ruling, the annulled act is removed retro-actively from the legal order and is supposed to have never existed (§35). In order to reach this judgment, the Court took as its basis mainly the procedural errors which led to PMOI's inclusion on the list: the decision of the Council explicitly provides for no communication procedure of the elements of the charge or a hearing of the interested parties (§160). The jurisconsult of the Council, Jean-Claude Piris, promised, therefore, that certain improvements would be brought to this procedure, in order to confer greater transparency on it and to include a right to reply, depending on the limits of feasibility and public security. As to whether the PMOI's inclusion on the list is fundamentally correct, the Court took the view that neither the decision in question nor decision 2002/334 which it updates satisfy the requirements (§164). Furthermore, the Council was not even able to give a coherent response to a question as to what was the national decision on the basis of which the decision in question was adopted (§171). Even though the actual merits of the reasoning do not enter into the jurisdiction of the Court, it is perfectly entitled to take the view that the absence of adequate reasoning in a case can infringe upon both the duty to state the reasons on which a decision is based, and the right of defence.
The lack of clarity of the ruling - the stumbling block
The decisions called into question were thus cancelled. However, the current status of the PMOI is determined by a new list, which entered into force on 20 March 2006, to which no explicit reference is made in the ruling. The interpretations of the ruling concerning this most recent list diverge considerably: Mr Piris, who granted EUROPE an interview in December, stated that the Council takes the view that the current list is valid, and that the judgment was essentially “symbolic”. Mr Spitzer, on the other hand, believes that it is legally impossible to “keep” the PMOI on the list, as its original inclusion has been cancelled and, therefore, “it is no longer on it”.
An extremely careful reading of the ruling is required, but although the relevant paragraph explicitly deals with this question, it fails to take a definitive decision, due to its use of the conditional voice in its original French (translator's note: this has the effect of peppering the text with the word “allegedly” in English), and leaves a certain amount of leeway in the legal mechanisms: “Moreover, as acknowledged by the Council at the hearing, if the contested acts are annulled, it will be obliged to take the measures necessary to comply with that judgment, pursuant to Article 233 EC, which may involve its amending or withdrawing, as the case may be, any acts which have been repealed and replaced the acts contested subsequent to the close of the oral procedure” (§35, editor's italics). In order to answer the question as to whether it is incumbent upon the Council to remove the PMOI from the 2006 list, it is vital to know to what the “as the case may be” refers.
The Council and the Commission do not seem to have any doubts as to the fact that whatever the “case may be” has not arisen. In a letter to Mr Stevenson, dated 19 March, the president of the European Commission, José Manuel Barroso, declared unequivocally that the ruling “refers only to legal decisions still in force at the date of closure of the procedure”, which would exclude the list of 2006, which therefore remains valid. Mr Spitzer disagrees: “this is radically incorrect”, he told the press, going on to criticise the fact that the “guardian of the Treaties no longer has a legal service which is capable of reading a CFI ruling!” He takes this paragraph to mean “in the case of a cancellation of the original decision by the present ruling”, a condition which has been fulfilled, therefore calling for the PMOI to be removed from the current list. As for the Council, Mr Piris this time declined to comment. If, however, he maintains his December stance, it is possible to deduce that it is likely to be close to that of Mr Barroso.
On the basis, therefore, there are almost as many opinions as there are people concerned. An official of the press service of the Court more neutrally took a midpoint, to explain to Europe that this slightly vague wording of the ruling allows a second assessment of any decision or act prior to the judgment. “We may well have a second hearing”, he said, in order to determine whether the ruling in question is applicable to the 2006 decision to include the PMOI on the most recent list. In any case, the current legal status of the PMOI is not as set in stone as the parties concerned are allowing it to appear.
Drafting the next list
If the most recent list remains controversial, there appears to be more consensus on the changes required in the future for the inclusion procedure. In line with the new ruling, the Council has given the PMOI a prior communication of its reasons, with regard to the list currently being drawn up (which is expected for late summer 2007), in a letter dated 30 January. This letter, of which EUROPE has been made aware, contains very little new information and refers to no concrete acts of violence after 2001. The PMOI has duly challenged these reasons, but without a great deal of hope. “We have no recourse to law before the decision has actually been made”, states Mr Spitzer. “And once the decision has been made, it will remain in force until the Court annuls it, if it does, which could take a year and half”. In 18 months, however, it will still appear on at least one new list: if the applicability of rulings to lists and their subsequent updates is not clarified, the PMOI's funds may never be unfrozen.
The political dimension
The Council of the EU does not go about its business in a purely legal sphere. Its reasons must also be interpreted in the context of the international political situation. All those who spoke on the subject at the press conference of 28 March, spoke in highly critical terms of the strategy of “appeasement” pursued by the United Kingdom and France towards the Mullah regime of Iran. It is against this backdrop, they state, that the Council has refused to come into line with the decision of the Court, for fear of alienating still further a regime with which relations are already tense, and whose cooperation is highly rated in the Middle East. In fact, it was to then British Home Secretary Jack Straw, that the PMOI owes its inclusion on the list. In an interview with the BBC in 2006, Mr Straw himself implied that it was in response to an express request from Tehran. This only adds weight to the PMOI's argument that it was added to the list for purely political considerations.
But if the position of the Council has a political dimension to it, that of those who spoke on Wednesday is not entirely devoid of political connections. Although no reference was made to the fact, it is worth noting that all the MEPs involved on Wednesday are members of the “Friends of Free Iran” group, which represents the interests of the Council of National Resistance of Iran (CNRI) at the European Parliament. According to the journalist Stephen Gardner, two of them (Mr Casaca and Mr Stevenson) declared, amongst other things, that they had received several gifts from the CNRI in 2005, but the value of these gifts was not revealed (“Euro Correspondent”, 16 April 2006).
From the side of the Council, there also complications at internal procedure level. Mr Vidal-Quadras explained to EUROPE that the adoption of the list requires the unanimity of the Council, but that in practice, the use of the veto is avoided. There is, he said, a “gentleman's agreement”, whereby it is felt to be incorrect to reject the inclusion of an organisation which has been proposed by a member state during these meetings behind closed doors. “Take the example of my country, Spain”, said Mr Vidal-Quadras: “We would not veto a British proposal [such as the inclusion of the PMOI], because they could then block our proposal if we find a new branch of ETA we want to include on the list”. Although it is not resolute, the legal uncertainty which exists in this matter leaves the Council with sufficient leeway to allow these “game rules” to continue, and thus to prevent a genuinely democratic assessment of PMOI's terrorist status. (cd)