Ice Lollies

Frozen Assets …

 

I have never grown out of puns. 

Poor Sheikh Yassin Abdullah Kadi has been unable to enjoy any of his lolly over the last six years or so.  It was all frozen shortly after 9/11 and he is still looking for a way to defrost it.  Most recently he asked the European Court of Justice in Luxembourg if it would help.

Shortly after 9/11 the US Treasury Department faxed a list to the United Nations.  The fax was a list of persons that the US suspected of supporting terrorism.  No details.  No reasons.  Just a straightforward list of names.

The UN had passed a series of resolutions before and after 9/11 requiring all states to take measures to freeze the assets of individuals and bodies associated with Osama bin Laden, the Al-Quaeda network and the Taliban.  A special Sanctions Committee made up of representatives from all members of the UN Security Council was charged with deciding whose assets should be frozen.

Except it did not draw up its own list, it simply adopted the US list – lock, stock and barrel.  Just like that. 

So, from 19th October 2001, Mr Kadi found all his considerable assets frozen.  He was allowed to apply to the Sanctions Committee for monies to be released to pay for food, medical expenses and reasonable legal expenses, but that was all.  There is no practical way that the content of the list may be challenged by an individual, and Mr Kadi was not given any information about why his name appeared on the list.

So much for the Rule of Law.

The UN Resolutions were implemented in different ways in different countries.  The EU Member States banded together and agreed a Common Position in relation to the Resolutions and then passed their own regulations mirroring the UN provisions. 

Now at this point I should explain.  As far as international law is concerned, countries fall into one of two camps.  They are either monist or they are dualist.  Monist countries do not have to do anything extra to implement international agreements – they automatically become part of national law.  Dualist countries have to pass their own domestic legislation implementing international measures before those international laws bite in their own legal regimes.

The UK, being a resolutely dualist country, had passed its own legislation freezing Mr Kadi’s assets, and Mr Kadi applied to the English courts for these restrictions to be set aside.  The English courts hummed and haaed a bit. Then the UK government told the courts that it did not matter what the UK legislation said, because the UK was bound anyway by an EC regulation which said Mr Kadi’s assets had to be frozen.  And EC law trumps UK law every time (which makes British Conservatives spit about sovereignty sold down the river and so on).  So Mr Kadi could whistle for his money.

Not surprisingly, Mr Kadi was a bit upset because it is actually true that EC law binds the UK.  It looked as if he needed to get the EC law set aside with some cunning legal arguments from some reasonably priced lawyers.  So he applied to the baby court of the European Communities in Luxembourg, the Court of First Instance.  They were unwilling to oblige and instead confirmed the position of the UK government.  The EC Regulations were good and there to stay.

Not put off, Mr Kadi pursued the matter to the big, grown-up court, the European Court of Justice.  This time he had some new reasonably priced lawyers and some new arguments.

 He argued that it is not only painful, but also unfair and a breach of fundamental rights for anybody to have their assets frozen without being able to challenge the decision.  He said that he had a right to be heard and a right to an effective judicial review of the decisions taken at EU level, failing which his right to property had been seriously infringed. 

Now, the European Court of Justice is a bit unusual.  Before the judges make up their minds, they get a chance to hear what the Advocate General has to say.  There are several Advocate Generals, actually, but only one in each case.  It is probably the best job a European lawyer could hope for, because he (or she) gets the chance to tell all the judges of all the Member States what the answer should be.  Often it is the Advocate General who effectively makes the new law.  For The Whole of Europe.  Wow.

Today, the brilliant Portuguese Advocate General in Mr Kadi’s case said – in an elegantly simple opinion – that the EU had no right to pass a regulation freezing Mr Kadi’s assets.  This was not only because (according to him) there was no right to pass any regulation on the legal bases that the Council and Commission of the EU, or the UK government, had argued.  But also because there was no effective way for Mr Kadi to challenge the inclusion of his name on the list.   In effect, the European Union is dualist, he said.  The EU is not obliged to apply international law automatically but will first have to check whether it meets its own moral/legal standards.  An opinion with potentially far reaching ramifications.

You see, it could have been my name, or your name, or Mr Smith’s name, and we nor he would not have been able to do a thing about it either.

 We will have to wait and see whether the judges of the European Court of Justice follow their leader or not.  Until then, Mr Kadi can pay his reasonably priced lawyers and feed himself and get treated if he is ill, but the rest of his lolly remains resolutely locked in the freezers of states across the world.  Which is not fair, is it?

 

 

 

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