PKK and Ocalan judgments

CFI strikes another blow to EU "terrorist list"
- legality of "reformed" procedures remains in doubt.

Source: Statewatch

The EU Court of First Instance has overturned decisions by the Council of the EU to include the Kurdish organisations PKK and Kongra Gel on the EU "terrorist list" (04.04.2008). In Case T-253/04, brought on behalf of Kongra Gel and 10 other individuals, the EU court ruled that the organisation was not in a position "to understand, clearly and unequivocally, the reasoning" that led the member states' governments to include them. It reached the same conclusion in Case T-229/02 bought by Osman Ocalan on behalf of Kurdistan Workers Party (PKK).

These judgments were widely excepted following the rulings in favour of Jose Maria Sison and Stichting al-Asqa (both based in Netherlands) in July 2007, and the precedent set in the People's Mojahedin Organisation of Iran (PMOI) ruling in December 2006. In this case the Court found that the EU's proscription regime had denied the PMOI the right to a fair hearing in which it could challenge its designation as "terrorist list" in accordance with its fundamental right to a fair trial. This paved the way for other proscribed groups and individuals to challenge their inclusion in the list.

In response to the PMOI ruling, the EU "reformed" its procedures for listing and de-listing. Whereas prior to the PMOI judgment no mechanism existed for those proscribed to either receive an explanation for their inclusion or to challenge that explanation, the EU now provides affected parties with a "statement of reasons". In turn, those parties may then write back to the secret EU group responsible for the decision to contest the statement and request de-listing. The EU has maintained in the "terrorist list" those groups and individuals who have already successfully challenged their proscription at the EU Courts on the grounds that its "reforms" remedy the fair trial breaches that the Court has identified. This issue will not be resolved until the PMOI's new challenge to the EU's decision to maintain them in the list (case T-157/07 ) returns to the Court, which may take several years. In the meantime, the challenges by other proscribed organisations are mounting up - as are the compensation claims.

Ben Hayes of Statewatch comments:

"There isn't a lawyer in Europe who believes that the EU 'reform' of its proscription regime amounts to the fair hearing that EU law demands. On the contrary, the regime remains a recipe for arbitrary, unaccountable and politically-motivated decision making. By ignoring the increasingly clear message from the EU Courts, the member states are doing themselves a great disservice.

Instead of digging its heels in, the EU should introduce a meaningful appeals procedure for affected parties. To wait years for the EU court system or the Strasbourg Court to deliver a judgment that everyone can see coming would be an affront to the EU's stated commitment to human rights."