Monday, March 26, 2007
Back to Rex est Lex?
Letter to David Triesman March 18, 2007
May I take you up on your written answer HL2432 of March 11, about the judgement of the European Court of First Instance regarding the assets of the PMOI.
The Court has no power to rule on the Common Position of the Council that the PMOI should be designated as a terrorist organisation, but only on whether the assets of an organisation listed by the Council as terrorist under that Common Position (2001/931 as amended), should be frozen (see paragraphs 13-17 of the judgement). Your statement that “…..the Court did not rule on the substantive question as to whether the MeK is a terrorist group” wrongly implies that they could have been asked to decide the former question.
Article 233 EC makes it obligatory for the Council to implement the Court ruling, which annulled the decision to include the PMOI in the assets freeze list. The Article provides that “the institution or institutions whose act has been declared void shall be required to take the necessary measures to comply with the judgment of the Court of Justice.” The improved procedures you mention are irrelevant, and the replacement of the annulled Decision of December 2005 by an equivalent one was a blatantly unlawful act by the Council, instigated by the United Kingdom.
In fact, the Court found a way of commenting on the designation itself, when they pointed out that at no time the PMOI or the Court were given any information to show that PMOI was engaged in terrorism. In Paragraph 161, the Court said:
“The applicant rightly points out that both the initial decision to freeze its funds and subsequent decisions, up to and including the contested decision, do not even mention the ‘specific information’ or ‘material in the file’ showing that a decision justifying its inclusion in the disputed list was taken in respect of it by a competent national authority”.
In paragraph 165, they repeated that the Council decision was devoid of any specific grounds, justifying the inclusion of the PMOI in the terrorist list.
In paragraph 167, the Court referred to the PMOI contention that it was included in the disputed list “solely on the basis of documents produced by the Tehran regime” and for “diplomatic” reasons. This was not denied by Council, and in paragraph 168, the Court observed that the Council had refrained from taking a position in that regard.
In paragraph 170, the Court rejected the assertion by the United Kingdom that the PMOI was aware of the reasons for its inclusion.
In paragraphs 166 and 172, the Court further stressed that due to lack of evidence it was unable to determine which was the national decision referred to in Article 1(4) of Common Position 2001/931, on which the contested decision was based; which competent national authority took the decision, or on the basis of what material or specific information that decision was taken.
You say that
“The specific Council decision of December 2005 annulled by the Court has been replaced by a subsequent Council decision of May 2006. The EU-wide asset freeze against MeK is therefore still in force. The EU keeps its terrorist asset freezing decisions under regular review.”
This assertion is disingenuous.
The oral hearing was on February 6, 2006, and dealt with the December 2005 decision. The Court was not in a position to annul the May decision, which had not been made at the time, and in paragraph 34 they say their review concerns ‘only those acts adopted and still in force and challenged on the date on which the oral procedure closed….. even if those acts have in turn been repealed and replaced by other acts before the date of delivery of the present judgement’.
However, the Court sought to ensure that its decision would be extended to any decisions that might be taken after the oral hearing under the same circumstances, emphasising in paragraph 35 that the Council had acknowledged that it would be obliged to take the measures necessary to comply with the annulment, including the amendment or withdrawal of any acts which might replace those being annulled.
The Council’s May 2006 decision was made under the same procedure - no evidence given, no opportunity to be heard, no reason given - which the Court described as unlawful, and since the Council did not by not appeal against the Court’s decision, they effectively admitted the illegality. Therefore, the May decision is also unlawful. It was made in consequence of updating and renewing the 2005 decision which had been annulled, and was the continuation of an unlawful act.
The Council is not only in defiance of the Court but it is in breach of its obligations under Article 233 which clearly states that “the institution or institutions whose act has been declared void shall be required to take the necessary measures to comply with the judgment of the Court of Justice.”
You say that
“Following the CFI decision on the MeK case in December, the EU has reviewed the listing, using improved procedures, and on 30 January reaffirmed its decision to include the MeK on its list of terrorist organisations. In line with the Court's requirements, it has written to the group setting out the reasons for the decision, and explaining how the group can exercise its right to provide further information relevant to the case and/or petition for delisting.”
This indicates that a definitive decision has been made to maintain the PMOI in the list, and contradicts the Council statement that it “intends” to include the PMOI and will make the final decision after considering the PMOI response. In the Council press release it says “The Council will consider any reaction by OMPI within this period of time, before taking a final decision”. This clearly shows that the UK intends to maintain the assets freeze on the PMOI – and its listing as a terrorist organisation – without regard to the evidence or to the rules of natural justice.
Your suggestion that the PMOI can provide further information relevant to the case and/or petition for delisting is wrong and unlawful. The burden of proof is on the Council which must ensure that there are “sufficient grounds”, based on “precise information and credible serious evidence” to include or maintain a group in the list. The PMOI has the right to respond to the Council’s case and then the Council must satisfy itself, in the light of the evidence and the PMOI’s response to it, whether there are sufficient grounds.
The “statement of reasons” sent to the PMOI does not meet the required standards set by the law and the Court. The Common position makes it clear that the entity must be engaged in terrorism at present, whereas the Council statement consists of general allegations relating to the past, with no reference to any event after 2001.
The Council relies on the decision made in March 2001 by Jack Straw. They were unable to defend that decision in the Court, yet they resort to it again now. My question, and your answer, were of course about the Council Decision, not about the Common Position, but the latter is of no effect without the former. The Common Position was outside the competence of the Court, because it is a mere political statement which by itself has no legal consequences for individuals. Based on the EU's modus operandi and rules of procedure, in order for the Common Position and the Council Regulations attached to it (adopted on December 27, 2001) to become applicable, the Council of Ministers must reach a unanimous decision and update it every six months. In paragraph 55 of the Court’s decision, it observes that it is not necessary to be able to challenge the validity of a common position, because it requires implementing acts which can themselves be challenged. This is the effective legal remedy, albeit indirect, against the Common Position. In other words, the Court acknowledges that the challenge to the Council Decision is a surrogate for a challenge to the Common Position. Effectively, the Decision of the Court, annulling the Council Decision as far as it concerns the PMOI, makes the Common Position a nullity, carrying no obligations or penalties upon individuals. All the restrictions imposed on the PMOI in consequence of its listing under Regulation 2580/2001 were annulled by the Court.
It seems to me that the Government have been determined to get their way in defiance of the law, for reasons that have nothing to do with the merits of the case. I suspect that you have consciously decided to go down this road to please the Iranian government, in the hope or expectation that you will thereby help to persuade them to cooperate on the nuclear issue or on reducing the violence in Iraq, or both. The Government may consider that reasons of state outweigh respect for the law, as they have also in the case of the Saudi corruption investigation, and in my opinion as they did in going to war against Iraq. But the return to the idea of Charles I, that rex est lex, is fraught with much greater danger for this country than the ones you are seeking to avoid, and I implore you to think again.
The Lord Triesman,
Foreign & Commonwealth Office,
London SW1A 2AH.
12 Mar 2007 : Column WA97
Terrorism: Proscribed Organisations
Lord Avebury asked Her Majesty's Government:
What action they have taken to comply with the ruling of the European Court of First Instance in the case Organisation des Modjahedines du Peuple d'Iran v Council of the European Union, annulling Council Decision 2005/930/EC of 21 December 2005 freezing the funds of the organisation; and in what manner they will now provide for the full hearing of the case against the organisation. [HL2432]
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Triesman): On 12 December 2006, the Court of First Instance (CFI) of the European Community annulled the Council of the European Union's decision to add the Mujahedinn e Khalq (MeK, also known as OMPI or PMOI) to its list of terrorist organisations subject to an EU-wide asset freeze. The CFI judgment focused on issues of EU procedure; the Court did not rule on the substantive question as to whether the MeK is a terrorist group.
The specific Council decision of December 2005 annulled by the Court has been replaced by a subsequent Council decision of May 2006. The EU-wide asset freeze against MeK is therefore still in force. The EU keeps its terrorist asset freezing decisions under regular review.
Following the CFI decision on the MeK case in December, the EU has reviewed the listing, using improved procedures, and on 30 January reaffirmed its decision to include the MeK on its list of terrorist organisations. In line with the Court's requirements, it has written to the group setting out the reasons for the decision, and explainin g how the group can exercise its right to provide further information relevant to the case and/or petition for delisting.