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Published online by Cambridge University Press: 27 October 2017
Using the example of anti-terrorism measures, this chapter looks at the difficulties experienced by the Court of Justice of the EU (CJEU) in reconciling the conflicting demands of fundamental rights protection and public security. It shows that under the current arrangements, the CJEU cannot have regard to information which has not gone through a proper adversarial hearing, even in cases where disclosure of the relevant information will jeopardise the public interest. The chapter thus envisages the possibility for reform. It examines, in particular, the special advocate procedure and the sort of difficulties that its transposition in the EU context would give rise to.
1 This was adopted to give effect to a series of UN SC Resolutions. UN SC Resolution 1267 (1999) first required States to freeze the funds of the Taliban. This was later expanded to cover Usama Bin Laden, the Al-Qaida organisation, and any other person associated with them. In 2001, after the Taliban were defeated, the sanctions were maintained by UN SC Resolution 1390 (2002). For the first time, individuals were targeted despite their lacking any link to a particular country, which also turned the regime into one targeted mainly at the combating of terrorism.
2 The Sanctions Committee was established by SC Resolution 1267 (1999) to ensure the proper implementation of the sanctions. UN SC Resolution 1333 (2000) then assigned it the task of maintaining a list of people associated with Al-Qaida and the Taliban.
3 This list was adopted in implementation of UN SC Resolution 1373 (2001), which required States to freeze the assets of all those involved in terrorist acts. In this case, however, the Resolution did not provide a list of people allegedly involved in their commission. This was left for States, and hence the EU institutions, to decide.
4 The UN list is implemented by means of Common Position 2002/402/CFSP [2002] OJ L169/4 and Council Regulation 881/2002 [2002] OJ L139/9 as amended by Council Regulation 1286/2009 [2009] OJ L346/42. The EU list is implemented by means of Common Position 2001/931/CFSP [2001] OJ L344/93 and Council Regulation 2580/2001 [2001] OJ L344/70.
5 In Resolution 1597 (2008), the Parliamentary Assembly of the Council of Europe found them ‘unworthy of international bodies such as the UN and the EU’. This was based on the report of the Committee on Legal Affairs and Human Rights on the ‘United Nations Security Council and European Union Blacklists’ (Doc 11454, November 2007).
6 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council and Commission (Kadi I ) [2008] ECR I-6351. The ruling has attracted unprecedented scholarly attention. See for example Búrca, G de, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51 Harvard International Law Journal. 1 Google Scholar; Gattini, A, ‘Joined Cases C-402/05P & 415/05P’ (2009) 46 Common Market Law Review 213 Google Scholar; Tridimas, T, ‘Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order’ (2009) 34 European Law Review 103 Google Scholar.
7 At first instance, the then Court of First Instance declined to review the measures on the ground that they were mandated by a UN Resolution to which the institutions were bound to give effect and which left them no leeway in the implementing process. See Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649. The judgment was subject to severe criticism. See, eg, Eeckhout, P, ‘Community Terrorism Listings, Fundamental Rights, and UN Security Council Resolutions: In Search of the Right Fit’ (2007) 3 European Constitutional Law Review 183 CrossRefGoogle Scholar; Vlcek, W, ‘Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice’ (2006) 11 European Foreign Affairs Review 491 Google Scholar.
8 The judgment is equally important for its input on the relationship between international law and EU (then Community) law and on the issue of fragmentation of international law. See respectively Tridimas, T and Gutierrez-Fons, JA, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’ (2008) 32 Fordham International Law Journal 660 Google Scholar and Besson, S, ‘European Legal Pluralism after Kadi’ (2009) 5 European Constitutional Law Review 237 CrossRefGoogle Scholar.
9 Opinion 2/94 [1996] ECR-1759, para 34.
10 These two rights are recognised and protected under Arts 6 and 13 of the European Convention on Human Rights (ECHR).
11 Charter of Fundamental Rights of the European Union [2007] OJ C303/1.
12 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council (OMPI ) [2006] ECR II-4665, paras 91–113.
13 SC Resolution 1333 (2000), para 8(c).
14 SC Committee established pursuant to Resolution 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities Guidelines of the Committee for the conduct of its work, last amended on 26 January 2011, see www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf, para 6(e).
15 Art 1(4) of Common Position 2001/931/CFSP [2001] OJ L344/93.
16 Case C-27/09P French Republic v People’s Mojahedin Organization of Iran (PMOI II ), Opinion of AG Sharpston delivered on 14 July 2011, nyr, para 228.
17 The original decision-maker is usually a judicial authority, or where judicial authorities have no competence in this area, an equivalent competent authority. See Art 1(4) of Common Position 2001/931/CFSP [2001] OJ L344/93.
18 There have been a range of cases on these issues starting from OMPI (n 12) in relation to the EU list and Kadi I (n 6) in relation to the UN list.
19 OMPI (n 12) paras 91–113.
20 OMPI (n 12) para 133.
21 Kadi I (n 6) para 342.
22 Chahal v United Kingdom (1997) 23 EHHR 413, para 131. The case concerned deportation proceedings but this has been also recognised in other contexts, including criminal proceedings. See, eg, Jasper v United Kingdom (2000) 30 EHRR 441 and Dowsett v United Kingdom (2004) 38 EHRR 41.
23 Case T-85/09 Kadi v European Commission (Kadi II ), judgment of 10 September 2010, nyr, para 173.
24 Jasper (n 22) para 52.
25 Kadi I (n 6) para 343.
26 OMPI (n 12) para 155. See also GC, Kadi II (n 23) para 144.
27 Case T-284/08 People’s Mojahedin Organization of Iran v Council (PMOI II ) [2008] ECR II-3487, para 73.
28 In the context of the EU list see for example OMPI (n 12) para 155. In the context of the UN list see Kadi II (n 23) para 144.
29 This has also been the view of AG Sharpston. See Opinion of AG Sharpston in PMOI II (n 16).
30 Art 56 ROP of the ECJ; Art 57 ROP of the GC.
31 Regulation of the EP and of the Council 1049/2001 [2001] OJ L145/43.
32 Under Art 4 Regulation 1049/2001, the institutions are obliged to refuse access to a document whose disclosure will undermine the protection of the public interest as regard, inter alia, public security, defence and military matters, and international relations.
33 Lenaerts, K, Arts, D and Maselis, I, Procedural Law of the European Union, 2nd edn (London, Sweet & Maxwell, 2006) 561 Google Scholar.
34 Ibid, 561.
35 Lasok, KPE and Vaughan, D (eds), Butterworths European Court Practice (London, Butterworths, 1993) 132 Google Scholar, citing Case 236/81 Celanese v Council and Commission [1982] ECR-1183.
36 Ibid, 129, citing Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR-63.
37 OMPI (n 12) para 158; Kadi II (n 23) para 146.
38 Opinion of AG Sharpston in PMOI II (n 16) para 239.
39 Case C-27/09 P French Republic v People’s Mojahedin Organization of Iran, judgment of 21 December 2011, nyr. Although the need for the introduction of a special procedure is implicit in its judgment in Kadi I . Kadi I (n 6) para 344.
40 T-284/08, PMOI II (n 27) para 71.
41 Kadi I (n 6) para 350.
42 The point was also made by AG Sharpston. See Opinion of AG Sharpston (n 16) para 184.
43 Ibid.
44 Thus in the UK, for example, special tribunals like the Special Immigrations Appeals Commission (SIAC) are able to consult both open and close material and reach a genuine assessment as to whether the measures taken against the appellant are justified. On SIAC, see further Section V below.
45 Particularly instrumental in that regard was the judgment of the GC in OMPI. See OMPI (n 12).
46 As regards the EU list, a number of applicants came back before the GC after the decision to freeze their funds was annulled on procedural grounds only and hence did not prevent the Council from putting their name back on the EU list. In the second round of cases, the GC also considered the reasons for including the applicants on the list. See, eg, T-284/08, PMOI II (n 22); Case T-341/07 Jose Maria Sison v Council (Sison II) [2009] ECR II-3625; T-348/07 Stichting Al-Aqsa v Council (Al-Aqsa II), judgment of 9 September 2010, nyr.
47 UN SC Resolution 1617 (2005), para 4.
48 Ibid, para 6.
49 Cameron, I, ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights’ (2003) 72 Nordic Journal of International Law 159, 165CrossRefGoogle Scholar.
50 See Art 4 Treaty on the European Union (TEU).
51 Under Art 215 TFEU economic and financial sanctions against third countries or non State actors can be adopted only following a decision adopted under the CFSP.
52 TL amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1.
53 Art 75 TFEU provides:
Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities. The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph. The acts referred to in this Article shall include necessary provisions on legal safeguards.
54 Art 275(2) TFEU.
55 Kadi I (n 6) para 344.
56 This is the technique used by the Israeli Supreme Court and has been described as the ‘judicial management model’. See Barak-Erez, D and Waxman, MC, ‘Secret Evidence and the Due Process of Terrorist Detentions’ (2009) 48 Columbia Journal of Transnational Law 3, esp 18–24Google Scholar.
57 Boon and Nash emphasise that there strong ethical objections to special advocacy and that SpAdvs should be openly acknowledged as representing the government and be subject for that purpose, to special rules. They suggest that SpAdvs should either be full-time government lawyers or appointed as experts by the court rather than advocates . See Boon, A and Nash, S, ‘Special Advocacy: Political Expediency and Legal Roles in Modern Judicial Systems’ (2006) 9 Legal Ethics 101, 121–22Google Scholar.
58 SIAC Act 1997, s 6. See also SIAC (Procedure) Rules 2003, rr 33–36.
59 For a detailed report on the use of secret evidence and special advocates in the UK, see JUSTICE, ‘Secret Evidence’ (June 2009) and in particular pp 179–90: www.justice.org.uk/resources.php/33/secret-evidence.
60 Terrorism Act 2000, sch 3, para 7. See also POAC (Procedure) Rules 2007, rr 9–10.
61 Counter-Terrorism Act 2008, s 68.
62 HM Government, Justice and Security Green Paper (Cm 8194 2011).
63 Al-Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531.
64 For a joint report see C Forcese and L Waldman, ‘Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings’ (Canadian Centre for Intelligence and Security Studies, August 2007): www.aix1.uottawa.ca/∼cforcese/other/sastudy.pdf.
65 For a discussion of the draft Bill introducing the SpAdv procedure in New Zealand see Inverarity, L, ‘Immigration Bill 2007: Special Advocates and the Right to be Heard’ (2009) 40 Victoria University of Wellington Law Review 471 Google Scholar.
66 Under Rule 119A of the Rules of Procedure and Evidence of the Special Tribunal for Lebanon (adopted on 20 March 2009: www.stl-tsl.org/en/documents), the prosecutor or the defence may apply for the appointment of a special counsel to provide advice to the pre-trial judge in the performance of his functions. On the issue see Korecki, L, ‘Procedural Tools for Ensuring Cooperation of States with the Special Tribunal for Lebanon’ (2009) 7 Journal of International Criminal Justice 927 CrossRefGoogle Scholar.
67 UN General Assembly, ‘Report of the Special Rapporteur [Martin Scheinin] on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (A/61/267, August 2006) para 39.
68 Lasok, KPE, The European Court of Justice: Practice and Procedure, 2nd edn (London, Butterworths, 1994), 344 Google Scholar.
69 Art 45 ROP of the ECJ; Art 65 ROP of the GC.
70 Lasok, and Vaughan, , Butterworths European Court Practice (n 35) 129 Google Scholar.
71 Art 46 ROP of the ECJ and Art 67(2) ROP of the GC.
72 See, eg, House of Commons (HC) Constitutional Affairs Committee, ‘The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates’ (7th Report of Session 2004–05, HC 323–1); House of Lords (HL) and HC Joint Committee on Human Rights, ‘Counter-Terrorism Policy and Human Rights: 28 Days, Intercept and Post Charge Questioning’ (19th Report of Session 2006–07, HL Paper 157, HC 394).
73 Jasper (n 22) para 55; Fitt v United Kingdom (2000) 30 EHRR 480, para 48.
74 Chamberlain summarises the main problems of the procedure as being the SpAdv’s ‘inability to call evidence, the lack of effective means to challenge the Government’s disclosure objections and the inability to take instructions on the closed case’. See Chamberlain, M, ‘Special Advocate and Procedural Fairness in Closed Proceedings’ (2009) 28 Criminal Justice Quarterly 314, 323Google Scholar. Van Harten has more broadly warned against the weaknesses of adjudication in the face of secret evidence, pointing to ‘the inability of the individual to make an informed reply to the state’s case, the unique dependence of the court (and the individual) on the executive, and the dynamic of closed hearings that tends to favour the security interest’. See Harten, G van, ‘Weaknesses of Adjudication in the Face of Secret Evidence’ (2009) 13 International Journal of Evidence and Proof 25 Google Scholar.
75 Kavanagh, A, ‘Cases: Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 Modern Law Review 836, 838CrossRefGoogle Scholar, referring to Bonner, D, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed? (Aldershot, Ashgate, 2008) 278 Google Scholar. For the function of the SpAdv before SIAC see SIAC (Procedure) Rules 2003, r 35.
76 In PMOI II for instance, the GC ordered the Council to forward it the grounds for the PMOI’s inclusion on the list, stating that the documents in question would not be communicated to the applicant at that stage of the proceedings if it claimed that they were confidential. The PMOI was then requested to make submissions on the Council’s claim to confidentiality, without having yet access to the relevant documents. See PMOI II (n 23) para 14.
77 See esp Art 91 ROP of the ECJ and Art 64(4) ROP of the GC.
78 Chamberlain, ‘Special Advocate and Procedural Fairness’ (n 74). The author admits that some improvements have, however, been made. SIAC (Procedure) Rules 2003 were amended to allow SpAdvs to adduce evidence, although this appears to be somewhat ineffective in practice. The author also notes that SpAdvs are now supported by the Special Advocate Support Office (SASO) and that they receive training in intelligence matters.
79 For more practical justifications for the rule see Code, M and Roach, K, ‘The Role of the Independent Lawyer and Security Certificates’ (2006) 52 Criminal Law Quarterly 85 Google Scholar.
80 Problems arise in particular because of the so-called ‘mosaic effect doctrine’. According to Forcese and Waxman, the doctrine ‘posits that the release of even innocuous information can jeopardise national security if that information can be pieced together with other data [the result being] a mosaic of little pieces of benign information that cumulatively disclose matters of national security significance’. See Forcese, and Waxman, , ‘Seeking Justice in an Unfair Process’ (n 64) 55 Google Scholar.
81 See, eg, HL and HC Joint Committee on Human Rights, ‘Counter-Terrorism Policy and Human Rights’ (n 72) paras 200–205.
82 HC Constitutional Affairs Committee, ‘The Operation of the Special Immigration Appeals’ (n 72) particularly para 89.
83 Lord Bingham has stressed that ‘it is hard to see how he can know who to call or what to ask if he cannot take instructions from the appellant or divulge any of the sensitive material to the witness’. See R (on the application of Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, para 18 (Lord Bingham).
84 For a discussion see Forcese and Waldman, ‘Seeking Justice in an Unfair Process’ (n 64).
85 Jenkins warns against the misuse of comparative law in this context. He describes the case as having ‘triggered a downward spiral in procedural fairness’ prompted by the ‘poor use of comparative law’ which ‘appeared to advice the UK to adopt a misunderstood version of a Canadian special advocate system’. See Jenkins, D, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology’ (2011) 42 Columbia Human Rights Law Review 279, 282Google Scholar.
86 In Al-Nashif v Bulgaria the Court stated that
[w]ithout expressing in the present context an opinion on the conformity of the [SpAdv procedure] with the Convention, … there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice. See Al-Nashif v Bulgaria (2003) 36 EHRR 37, para 97.
87 A v UK (2009) 49 EHRR 29.
88 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.
89 The appellants brought their case to Strasbourg despite the fact that many of their pleas were successful before the HL.
90 A v UK (n 87) para 217.
91 A v UK (n 87) para 218.
92 A v UK (n 87) para 219.
93 A v UK (n 87) para 220.
94 A v UK (n 87) para 220.
95 A v UK (n 87) para 220.
96 A v UK (n 87) para 223.
97 See, eg, Eckes, C, EU Counter-Terrorist Policies and Fundamental Rights: the Case of Individual Sanctions (Oxford, Oxford University Press, 2010)Google Scholar ch 3.
98 Kadi II (n 23) para 150. In a subsequent case, however, the GC appears to have reverted to its old position, stating that the sanctions are not criminal measures. See Case T-49/07 Sofiane Fahas v Council, judgment of 7 December 2010, nyr, paras 67–68.
99 See Secretary of State v AF (AF ) [2009] UKHL 28, [2010] 2 AC 269. A v UK was, however, applied rather unwilling. In particular, Lord Hoffman considered the case to have been wrongly decided and to impose too rigid a rule when measured up against practical realities. AF, paras 71–72 (Lord Hoffman). Tomkins points out that, were it not for the intervention of the ECtHR, such cases would have been approached very differently in the UK. See Tomkins, A, ‘National Security and the Role of the Court: A Changed Landscape?’ (2010) 136 Law Quarterly Review 543, 544Google Scholar. For the impact of A v UK on the control orders regime see Chamberlain, M, ‘Update on Procedural Fairness in Closed Proceedings’ (2009) 24 Civil Justice Quarterly 448 Google Scholar.
100 AF (n 99) para 65 (Lord Philips).
101 A v HM Treasury [2010] UKSC 2, [2010] 2 AC 534, para 192 (Lord Brown).
102 Kadi II (n 23) paras 174–75.
103 Opinion of AG Sharpston in PMOI II (n 16) para 245.
104 See Arts 253–55 TFEU. The panel comprises seven persons chosen from among former members of the ECJ and the GC, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament.
105 This has been envisaged for the appointment of judges and AGs. See Arnull, A, Dashwood, A, Ross, M, Wyatt, D, Spaventa, E and Dougan, M, Wyatt and Dashwood’s European Union Law, 5th edn (London, Sweet & Maxwell, 2006) 383 Google Scholar.