Yassin Kadi, a citizen of Saudi Arabia, was placed on the U.S. Specially Designated Global Terrorist (SDGT) list in 2001 and his U.S. assets were frozen. His request for reconsideration was denied by U.S. Treasury and a U.S. federal court rejected his constitutional claims, holding that the evidence gave Treasury sufficient “reason to believe” that Kadi provided support to terrorists or people associated with them. It left open the question of whether or not he had sufficient financial ties to the U.S. to require due process protections, since it found that even if he did, the reconsideration process was sufficient. In addition, the court distinguished this case from those in Al-Haramain and KindHearts, which found the government process for listing U.S. charities unconstitutional, because Kadi is a foreign national.
Yassin A. Kadi, a businessman and citizen of Saudi Arabia, purused court challenges to being placed on terrorist lists in the European Union (EU) and United States (U.S.). The process and standards used by the EU and U.S. courts differ substantially, leading to different results: the EU courts have ruled the EU listing process lacks fundamental protections, violating EU human rights standards, while the U.S. courts rejected Kadi’s constitutional claims.
In 2013, the European Court of Justice handed down a decision on July 18, 2013 upholding a lower court ruling that the EU Commission regulation imposing UN terrorist listing sanctions on Kadi must be annulled because the process failed to provide him with an adequate opportunity to defend himself, obtain proper judicial review and was a disproportionate restriction on property. The case ends over ten years of litigation by Kadi, who was first listed in 2001. While the case was pending the UN Ombudsperson recommended Kadi be delisted, and the Security Council announced his removal from the UN list in October 2012. The case is significant in that the court held that the UN process cannot trump the jurisdiction of the EU courts to enforce fundamental rights protected by the EU Constitution.
Background and Case History
In explaining the background of the case, the court noted that the UN created a terrorist sanctions list in 1999 (Security Council Resolution 1267) to cover the Taliban of Afghanistan, and “those resolutions were subsequently extended to include Usama bin Laden, Al-Qaeda and persons and entities associated with them.” It provides a useful history of the UN’s procedures to deal with delisting requests and the requirements for states submitting names to be put on the UN lists. These include the specific basis for the listing, with supporting information and documents. State submitting listing nominations to the Sanctions Committee created to oversee the process must also identify what information can be released publicly and shared in the notice to the person or entity being listed, as well as used for the narrative summary on the Sanction Committee’s website. The court noted that the EU action required to implement the UN sanctions regime included adoption of asset freezing, travel restrictions and other sanctions for those on the list.
Kadi was first listed at the UN under the al Qaeda regime on Oct. 17, 2001 and added to EU’s Taliban and al Qaeda sanctions lists. Kadi challenged the sanctions in the EU General Court in December 2001, claiming violation of his right to be heard, the right to respect for his property and the right to effective judicial review. On Sept. 32, 2005 the EU General Court rejected his appeal, essentially holding that it could not review the UN’s determination.
Kadi appealed to the EU Court of Justice, which ruled in his favor on Sept. 3, 2008. The high court said international agreements, including UN Resolutions, cannot effectively prejudice constitutional principles and basic human rights protected by the European Commission Treaty. The new opinion summarized it as follows:
“…since the Council had neither communicated to Mr Kadi the evidence relied on against him to justify the restrictive measures imposed on him nor afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, Mr Kadi had not been in a position effectively to make known his point of view in that regard, with the consequence that the rights of defence and the right to effective judicial review had been infringed.”
The ruling extended the sanctions for three months to give the UN Sanctions Committee an opportunity to correct its error. In October 2008 it sent a statement of reasons for listing Kadi to France, which in turn sent them to Kadi. On Nov. 10, 2008 Kadi submitted his comments to the Commission opposing listing and responding to the UN allegations. The court summarized his response as follows:
“He argued, on the basis of documents certifying that the Swiss, Turkish and Albanian authorities had decided not to pursue criminal investigations against him concerning his alleged support of terrorist organisations or involvement in financial crime, that, whenever he had been given the opportunity to express his point of view on the evidence said to inculpate him, he had been able to demonstrate that the allegations made against him were unfounded, and he requested the production of the evidence in support of the claims and assertions made in the summary of reasons relating to his being listed on the Sanctions Committee Consolidated List and the relevant documents in the Commission’s file, and asked that he be allowed to submit comments on that evidence. While drawing attention to the vagueness and generality of a number of the allegations contained in that summary of reasons, he disputed, with supporting evidence, that any of the reasons relied on against him were well founded.”
Later that month the EU authorities accepted the UN listing request and imposed sanctions on Kadi, who once again appealed to the EU General Court, in February 2009, citing breach of his right to defend himself, inadequate judicial review and disproportionate restrictions on property. This time the General Court, citing the previous Court of Justice opinion, sided with Kadi. It ruled on Sept. 30, 2010 that, in reviewing the assessment of an international body like the UN, the Courts of the European Union must review the facts and circumstances relied to impose sanctions and make its own determination whether the information and evidence on which the UN assessment is based is accurate, reliable and consistent. It also said such a review cannot be barred because the information and evidence is secret or confidential.
The General Court found the Kadi’s right of defense had been:
“respected only in a purely formal and superficial sense, since the Commission considered itself strictly bound by the findings of the Sanctions Committee and at no time envisaged calling them into question in the light of Mr Kadi’s comments or making any real effort to refute the exculpatory evidence adduced by Mr Kadi.”
The court also noted that Kadi was refused access to some of the evidence against him, with “no balance struck between his interests and the need to protect the confidentiality of the information in question.” This was also an infringement of the right of judicial review and was a significant infringement on property. As a result, the General Court annulled the listing of Kadi.
The Commission, supported by several EU member countries, appealed to the Court of Justice. That court rejected the appeal. Among its findings, it said 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.”
“…it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded.”
“…for the rights of the defence and the right to effective judicial protection to be respected first, the competent European Union authority must
(1) disclose to the person concerned the summary of reasons provided by the Sanctions Committee which is the basis for listing or maintaining the listing of that person’s name in Annex I to Regulation No 881/2002,
(2) enable him effectively to make known his observations on that subject and
(3) examine, carefully and impartially, whether the reasons alleged are well founded, in the light of the observations presented by that person and any exculpatory evidence that may be produced by him.”
EU High Court Upholds Kadi Delisting, Cites Due Process
In 2013, the European Court of Justice found “that none of the allegations presented against Mr. Kadi in the summary provided by the Sanctions Committee are such as to justify the adoption, at European Union level, of restrictive measures against him, either because the statement of reasons is insufficient, or because information or evidence which might substantiate the reason concerned, in the face of detailed rebuttals submitted by the party concerned, is lacking.”
In challenges to UN listings, the court said “respect for those [fundamental] rights implies that, in the event of a legal challenge, the Courts of the European Union are to review, in the light of the information and evidence which have been disclosed inter alia whether the reasons relied on in the summary provided by the Sanctions Committee are sufficiently detailed and specific and, where appropriate, whether the accuracy of the facts relating to the reason concerned has been established.”