The ECJ’s New Appeal Judgment on Kadi

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU.

The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status.

Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection.

What is notable about this latest decision is that:

• The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
• Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
• This decision may set a new standard for the review of Security Council acts in other fields.

Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that:

“In proceedings relating to the adoption of the decision to list or maintain the listing of the name of an individual in Annex I to Regulation No 881/2002, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee (see, to that effect, the Kadi judgment, paragraphs 336 and 337), so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union.” (para. 111)

The ECJ thus sets out procedural and substantive obligations: the decision to list or relist must comply with procedural safeguards, such as “ [a] statement of reasons [that] identifies the individual, specific and concrete reasons why the competent authorities consider that the individual concerned must be subject to restrictive measures.” (116) Moreover, there is a substantive obligation to review the basis for the decision to list.  This “ entails a verification of the allegations factored in the summary of reasons underpinning that decision (see to that effect, E and F, paragraph 57), with the consequence that judicial review cannot be restricted to an assessment of the abstract cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.” (119)  This test is reiterated in para. 135.

The ECJ also spelled out the content of judicial protection, noting:

“The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered.”  (134)

This decision will unquestionably have ripple effects:

• It might encourage UN Sanctions Committees to be less detailed in providing reasons for listing, so as to mitigate potential court challenges.  For example, my friend Antonios Tzanakopoulos, over at the blog EJIL:Talk! suggests in a great post that “in order to avoid challenges in domestic and other courts, the Security Council has started to make its sanctions regimes less and less targeted.”
• The decision indicates that in the EU intermediate administrative review, like that provided by the office of the Ombudsperson, is no replacement for a proper judicial procedure.
• Finally, this case may set a precedent for the review of Security Council acts generally.  Although the consolidated sanctions lists are unique in that they are directly mandated by the Security Council under Chapter VII resolutions such as 1267 and 1989, and designed to prevent prevent terrorist acts by freezing assets and imposing travel bans amongst other measures,, there are an increasing number of situations in which UN acts and omissions, and the adequacy of internal review mechanisms, are coming under scrutiny.  One that I have blogged about on several occasions is the Haiti Cholera case, where lawyers for the victims have boldly challenged the sufficiency of internal review processes for victims of cholera.  It remains to be seen if courts will extend the requirements of judicial protection to other areas of UN activity.