A. Rule of Law Concerns: Preliminary Considerations

Though the main focus of this article is on the negative impact of the global securitization process on court capacities, it must be noted that several dismissals by the Community Courts result from the enormous legal hurdles associated with the actual exercise of the individual right to bring an action before these courts. These dismissals seem to be the direct consequence of the prevalent risk of choosing bad legal strategies in a complex legal environment. For example, in spite of the official economic or administrative character of the sanction, some claimants have perceived it as a form of criminal punishment and couched their argument in terms of a lack of respect for ‘presumption of innocence’ and a right to fair trial instead of a disregard of the right to effective judicial protection.Footnote ⁵² Others have sought to gain information about the reasons for CEU listing decisions. However, instead of basing their claim on a right to information (including statement of reasons), these applicants have appealed to a general right of public access to information from European institutions.Footnote ⁵³ Another problem encountered has been a failure to respect the time-limit for lodging an application.Footnote ⁵⁴ A further problem has been difficulties in showing the capacity to bring legal proceedings before the CFI on behalf of a listed entity.Footnote ⁵⁵

In the first instance, responsibility for bad choices of legal argumentation having their source in the complexity of the legal environment are best attributed to the plaintiffs who are expected to acquire sufficient legal expertise before bringing cases to court. These kinds of difficulties are usually overcome once knowledge about sound legal strategies becomes available and known among those who have been affected and their legal representatives. While restraining their capacities to perform essential judicial functions, courts cannot be blamed for litigants' bad choices or lack of sufficient legal expertise. After all, the subjects of law are expected to know about the law that applies to them (‘ignorance is no excuse’). At the same time, the fact that so many complaints concerning targeted sanctions have been rejected on the basis of what seems to be a failure on the part of the claimants and their representatives to even understand applicable law may be a more serious dilemma than it seems at first: it may instead be interpreted as the result of a failure of European legislators to reduce excessive legal complexity in order to meet fundamental rule-of-law requirements regarding law's accessibility, in particular when it has a serious impact on individual freedom and well-being.

It is by no means evident that European legislative institutions have succeeded in making the laws on targeted sanctions accessible in relation to those who are expected to live by them. The relevant law is found in what is by now a myriad of common positions, decisions and regulations of the CEU and the Commission regulations on the topic.Footnote ⁵⁶ Furthermore, information about the rights on which the claimants are to base their actions before court, and about which court to turn to, are scattered throughout the Community's legal landscape. Most of the relevant rights are found, not in something like a Bill of Rights, but in the vast case law of the Community Courts. Thus, knowledge about one's rights and where to turn in order to enforce them requires extensive familiarity with that source of law. The adoption of the Charter of Fundamental Rights, though non-binding,Footnote ⁵⁷ is an important step in the direction of ensuring that the law is clear enough so as to inform and guide the conduct of its intended addressees. However, as it is now, much still remains to be done before it can be said that Community law is accessible from the standpoint of the subjects of that law.

The Community Courts cannot make up for difficulties created by legal complexity; at most, these courts may introduce some rules, as they have done, to alleviate claimants subject to targeted sanctions from what would otherwise constitute insurmountable legal burdens placed on them. For example, the courts are usually ready to assist litigants in improving their line of argument. Furthermore, they have introduced some procedural rules that allow litigants to update their references to relevant law in the written pleadings at the time of hearing. This is of enormous importance for litigants in the field of targeted sanctions as the relevant laws are replaced at least every six months. Given the lengthy nature of European judicial proceedings, the law referred to in the first written application will inevitably be outdated at the time of hearing. However, these kinds of court initiatives are meant to enable targeted persons to bring a case in the face of legal complexity, but do not reduce legal complexity as such. That would in principle be an urgent task for European legislators who should balance carefully the importance of flexibility with concerns about transparency in order to secure accessible laws in the field of counter-terrorism measures. Nonetheless, the controversial nature of the matter renders Community legislative action aimed at improving the accessibility of laws improbable.

B. The Foreign Policy Dimension

In the European context, the global securitization process has meant that the implementation of SC-mandated obligations concerning targeted sanctions, including the listing, is a matter of foreign and security policy (CFSP) and, thus, for the CEU to decide upon. It was in this spirit that these resolutions, as well as the listing, were enacted in the form of ‘common positions’. However, instead of regarding the incorporation of these instruments as pure CFSP second pillar acts (which would have deprived the Community Courts of a legal basis for review), the common positions in question were enacted under the joint legal base of the CFSP (Article 15 TEU) and the third pillar (Article 34 TEU). Thus, in response to complaints against CEU-imposed targeted sanctions, the ECJ has come to focus its reasoning about a possible basis for jurisdiction over these positions in their capacity as third pillar acts.Footnote ⁵⁸

As the CFI noted in the Segi and Gestoras pro Amnistía judgments, according to Article 34(2)(a) TEU, the Council may ‘adopt common positions defining the approach of the Union to a particular matter’. However, there is no express jurisdiction for them to exercise full judicial review over such acts, nor to award compensation for damages caused by them.Footnote ⁵⁹ Instead, their competences are limited to a consideration as to whether the CEU, in adopting these positions, has followed the established decision procedure (‘has not encroached upon the powers of the Community’).Footnote ⁶⁰ Even so, according to the CFI, this does not mean that listed persons would be denied full review and damages.Footnote ⁶¹ However,

In spite of the CFI's initial dismissive stance in regard to its competence to review the common positions in question, the ECJ has come to assess, in more detail, the precise justification for the restrictive nature of its competences over such positions with reference to the purpose that they are supposed to serve: ‘defining the approach of the Union to a particular matter’ (Article 34(2)(a) TEU). In the view of the court, the restriction is prompted since such positions are not supposed to produce legal effects in relation to ‘third parties’.Footnote ⁶³ Still, as the complaints on targeted sanctions reveal, such positions may well have those effects. Thus, in a recent judgment, the ECJ asserted its competence to review ‘a common position which, because of its content has a scope going beyond that assigned by the EU Treaty to that kind of act’.Footnote ⁶⁴ Even though the main burdens of review and remedies in relation to listing decisions are placed on national courts,

However, while the ECJ sees itself as not being competent to perform a full review of common positions, nor to award damages to those who suffer serious harm as a result of such positions, the CFI recently asserted its competence to review the actual implementation in EC legislation (in the form of regulations) of such positions (in which the listings appear), ie the decisions to freeze assets in concrete cases. To this end, the CFI notes that

Against this background, the CFI asserted that part of its judicial review under Article 230 EC must be to ensure that the legal conditions for applying Regulation No 2580/2001 (concerning asset freeze) to a particular scenario (whether it is an initial decision or a subsequent decision to freeze funds) are fulfilled. This implies that ‘the judicial review of the lawfulness of the decision in question extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based.’Footnote ⁶⁷ In the same case, it also upheld its competence to review if ‘the right to a fair hearing is observed and that the requirement of a statement of reasons is satisfied and also, where applicable, that the overriding considerations relied on exceptionally by the Council in order to not to respect those rights are well-founded’,Footnote ⁶⁸ and ruled in favour of the applicant.

At the same time, the CFI stressed the prevalence of delimitations imposed on its competence to review implementing acts on asset freezing. It held that the CEU has broad discretion to assess factors to be taken into account for the purpose of adopting economic and financial sanctions consistent with a common position. Indeed, the Community Courts ‘may not substitute their assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council’.Footnote ⁶⁹ Thus, their competence as regards CEU decisions on asset freezing is restricted to checking ‘that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power’.Footnote ⁷⁰ It also emphasized that ‘limited review applies, especially, to the Council's assessment of the factors as to the appropriateness on which such decisions are based’.Footnote ⁷¹ In the same judgment, the CFI also asserted its competence to award damages if it turns out that decisions concerning asset freezing are based on manifest errors of assessment of the facts or misuse of power, and where the applicant can demonstrate harm and a causal link between the harm and the action in question.Footnote ⁷²

Quite regardless of the generous interpretation of the right to preliminary ruling in relation to common positions, and the recent recognition of the right for targeted persons to challenge CEU decisions on asset freezing (as opposed to listing decisions) before the CFI, the current institutional and legal settlement may be regrettable in as much as it does not extend to full European judicial review over decisions on asset freezing. The considerable engagement of the European executive branch—the CEU—in the field of counter-terrorism, and its broad decision powers on targeted sanctions, delimit the CFI competence for review to a factual assessment of ‘grave mistakes’ (at the time of writing, it remains doubtful what constitutes such a grave mistake and if the CFI would be prone to overrule a decision on asset freezing on this basis). Furthermore, in its recourse to common positions as a means of implementing SC counter-terrorism measures, the Council evades, deliberately or not, European judicial review of its actions in relation to persons associated with Al-Qaida et al and those who are subjected to SC listing decisions. Instead, the leading idea is that such decisions should be reviewed in single national courts of EU Member States. Indeed, many European countries have in their national legal orders, in part, aided by the European Court of Human Rights, narrowed down executive powers in effective ways (from the 1970s and onwards) and this process has continued with few changes since 9/11.Footnote ⁷³ Still, it is doubtful whether single domestic courts are well-suited to perform judicial review over CEU decisions or will be better equipped to obtain access to relevant secret or confidential information. As one commentator noted, the fears that the Community Courts will become the ultimate adjudicator of the terms for conducting common foreign affairs are perhaps exaggerated,Footnote ⁷⁴ and a more extensive role could be given to them in relation to CFSP matters. Indeed, as the ECJ repeatedly reiterates, the restrictions on its competence over such matters are not a necessary institutional settlement; it could be otherwise. But, it would be for the European legislators and not the courts to extend the scope of European jurisdictions to cover such matters as well.Footnote ⁷⁵ Nevertheless, as the current European political climate speaks against such development,Footnote ⁷⁶ prevailing delimitations on judicial review of CEU-sponsored counter-terrorism sanctions are likely to remain intact for the foreseeable future, in spite of their repercussions on the social standing and reputation of targeted persons.

C. The International Legal Dimension

A second challenge posed to court capacities stems from the authoritative and, above all, exacting role of the SC in leading the fight against terrorism; the SC has not only come to oblige States to utilize asset freezing against those who are believed to be involved in terrorist activities, but also to identify persons against which the sanctions must be enforced. The latter SC actions are more like ‘orders’ than ‘directives’, in that they do not seem to leave any room for State discretion in their application. Indeed, this is the way these actions came to be perceived by the CEU, ie as commands which necessitated immediate ‘transposition’—word-by-word—into Community law. Thus, no consideration was given to the question about the ‘legal’ status of the listing itself, neither to alternative implementation methods available for conforming with the objectives of the SC resolutions which refer to the list while at the same time honouring international and European human rights obligations of its members regarding access to justice and, indeed, the fundamental rights that the Community itself upholds.

The CEU's stance on the nature of the SC obligations concerning targeted sanctions is central to understanding the dismissive response of the CFI in relation to complaints from SC listed persons whose bank accounts have been frozen in the EU. Instead of reflecting in more critical terms on the incorporation of the SC listing into Community law, the CFI asserted that the CEU had acted as it should. To this end, it emphasized that the obligations of UN Member States under the UN Charter ‘clearly prevail over every other obligation of domestic law or of international treaty, including, for those of them that are members of the Council of Europe, their obligations under the ECHR and, for those that are also members of the Community, their obligations under the EC Treaty’.Footnote ⁷⁷ It also pointed out that this rule of primacy extends to decisions contained in SC resolutions (Article 25 UN Charter)Footnote ⁷⁸ and, moreover, that the binding nature of SC resolutions requires States to ‘take all necessary measures to ensure that these resolutions are put into effect’.Footnote ⁷⁹ In addition, it upheld an exclusive competence of the Community to act in response to international obligations regarding economic sanctions on the basis that these form an integral part of the common commercial policy (Article 301 EC).Footnote ⁸⁰ Indeed, the CFI asserted that in so far as the Community has assumed powers previously exercised by Member States in the area governed by the UN Charter, the provisions of that Charter have the effect of binding the Community.Footnote ⁸¹ Thus, the CFI concluded that (by virtue of the EC Treaty itself), the Community was required to ‘give effect’ to the SC resolutions in question within its sphere of powers.Footnote ⁸² At the same time, the Community institutions were said to have been acting ‘under circumscribed powers, with the result that they had no autonomous discretion. In particular, they could neither directly alter the content of the resolutions at issue nor set up any mechanism capable of giving rise to such alteration’.Footnote ⁸³

As a result of this interpretation of the nature of the relevant SC obligations, the CFI's judicial review came to focus on the legality of the SC resolutions themselves, and the extent to which the SC sanctions regime related to persons associated with Al-Qaida/Taliban terrorist networks ensured sufficient respect for these rights. As it rightly notes, however, court capacities to review SC action under Chapter VII of UN Charter are radically delimited:

Against this background, the CFI concluded that ‘…the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court's judicial review and … the Court has no authority to call into question, even indirectly, their lawfulness in the light of Community law’.Footnote ⁸⁵

But, although the CFI held that it was not in a position to check whether the requirements of SC action under Chapter VII of the UN Charter had been met, it affirmed that it should be able to control, at least to some extent, whether the SC had respected human rights.Footnote ⁸⁶ To this end, it held that the SC is directed to act ‘in accordance with the Purpose and Principles of the Charter’ (Article 24(2) of the UN Charter)Footnote ⁸⁷ and, thus, in compliance with human rights as these are mentioned in the Charter's preamble and in its Article 1(3) (‘Purposes’). The CFI then came to pronounce that the outer limits for SC action are defined by fundamental norms of jus cogens.Footnote ⁸⁸ Thus, the CFI saw itself as competent to review, in an indirect manner, the consistency between the relevant SC resolutions against the backdrop of jus cogens norms ‘understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible’.Footnote ⁸⁹ The ‘indirect’ nature of the review meant that it would not assess the facts and evidence, nor would it check whether the measures were appropriate and proportional to the aims pursued.Footnote ⁹⁰ Following an assessment of the consistency between jus cogens norms and the SC sanctions regime, however, the CFI concluded that the SC had not infringed upon such norms. While concerned about the absence of rights of access to court and to remedies, the CFI maintained that this gap is not contrary to jus cogens, and that SC listed persons in any case are entitled to diplomatic protection.Footnote ⁹¹

The CFI was correct in upholding the claim that the SC is not ‘above the law’, but required to respect certain fundamental norms (jus cogens) under all circumstances. Nevertheless, contrary to the CFI's generous understanding of the substantive contents of such norms, while not restricted exclusively to prohibitions against grave international crimes, the protection such norms afford is very basic.Footnote ⁹² Considering the ‘second-order’ purpose that the right of access to court is supposed to serve, ie to afford individuals judicial opportunities to challenge measures that infringe ‘first-order’ jus cogens norms (such as prohibitions against genocide or torture), it is doubtful whether the status of the right of access to justice can be measured in absolute terms (ie whether it is itself a jus cogens norm) or if its status rather depends on which first-order human right is at stake. Indeed, the doctrine of universal jurisdiction (criminal and civil) rests on the claim that infringements of first-order jus cogens norms must not go unpunished and that access to court must be granted for those who claim to be victims for such infringements.Footnote ⁹³ However, as Christian Tomuschat notes, while, broadly speaking, ‘the life and physical integrity of human beings are placed under the protection of jus cogens … their belongings pertain to a different class of social goods which need permanent adjustment to life in society’.Footnote ⁹⁴ Thus, unless targeted sanctions would amount to a threat to life (ie a deprivation of the essentials for survival, asset freezing (or even confiscation)), it cannot be said to amount to such a serious infringement for which access to court must be granted regardless of whether there is a territorial or national connection with the infringement. Against this background, the SC cannot be seen as infringing upon jus cogens norms by not securing access to justice for listed persons.

However, while the SC is not required to create an international tribunal in order to respect jus cogens norms, the question whether other courts should open up access to complaints from this group still remains to be fully answered. For this, it is necessary to consider the status of specific international human rights obligations of States (as opposed to the SC) regarding access to justice. In this context, the CFI refers to the right as stated in Article 8 of the Universal Declaration of Human Rights (‘right to an effective remedy’) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR) (‘right of access to court’). However, it then asserts that none of these rights are absolute but can be derogated from at times of emergency.Footnote ⁹⁵ Nonetheless, while it is correct that the right to access court (Article 14 of the ICCPR) and, I should add, the right to remedies (Article 2 of the ICCPR) may be limited for the sake of security (provided that the restrictions are proportionate to the objectives and certain procedural rules are respected), according to the UN Human Rights Committee, which is assigned to interpret the meaning and scope of ICCPR rights, a core of these rights must be protected under all circumstances. As it asserts:

Thus, this UN committee understands the right of access to court (including fair trial and the presumption of innocence) as forming part of the category of peremptory norms from which no derogation can ever be made.Footnote ⁹⁷ Of course, a reference to a general comment of the Human Rights Committee may not seem persuasive enough to question the CFI's understanding of the status of this right. Even so, the failure to take into account international legal debates surrounding the non-derogable nature of the rights of access to court and to remedies at times of war and in emergency situations, especially after 9/11, and the influential statement of this committee in this regard, as well as other similar arguments about the continued relevance of international humanitarian law, which also upholds a right to access court and to remedies, undermines its judgment about the relative nature of this right from the standpoint of domestic courts.

A second consideration relates to the question of how to understand the absence of explicit references to rights of access to court in SC resolutions concerning targeted sanctions against Al-Qaida and the Taliban. The CFI understands this absence as based on a SC assessment about the necessity of derogating from this right for the sake of international security. In this spirit the CFI asserts that

However, while underpinning the reasoning of the CFI, no official reason has ever been given by the Council for the absence of rights. Although it is clear that the SC regards its listed persons as international security threats, it is by no means settled if it believes that the individual right of access to court and to remedies would run counter to its principal objective of restoring or maintaining international security. Much points instead to the fact that the SC did not consider human rights as falling within its mandate. Indeed, for several years, this was the human rights position of its Counter-Terrorism Committee (CTC), created in 2001 to monitor the implementation of Resolution 1373. From the outset, the CTC did not consider itself as competent to decide on matters of human rights. For sure, its human rights policies are changing. In fact, it is increasingly attentive to human rights concerns and now has a human rights expert among its staff.Footnote ⁹⁹ But, to the extent that it has taken human rights concerns aboard, it has been in an effort to protect these rights and not to issue official statements about the necessity of derogating from them. This development indicates that the SC may not regard targeted sanctions and human rights concerns as irreconcilable. Instead, it has accepted (reluctantly) the claim that several of its actions in the field of counter-terrorism have had a direct impact on human rights and that it needs to be attentive to this fact in its own programme of work.Footnote ¹⁰⁰

Thus, a more reasonable (and, for sure, less adversarial) explanation of the absence of specific rights is simply an assumed lack of SC competence to make decisions on human rights. In a way similar to the CTC, the SC's own understanding of its competence is changing also in the context of the Al-Qaida/Taliban Sanctions regime. Even so, its silence on the rights of access to court and to remedies remains. In this situation, however, there is no reason for not assuming consistency between SC resolutions and international human rights standards (ie that the SC is not denying the right of access to court). On the contrary, there is a built-in assumption about consistency with human rights that must be taken into account in the interpretation of the content of its resolutions.Footnote ¹⁰¹ As the UN Special Rapporteur Martin Scheinin notes, under international human rights law, the absence of international review does not relieve courts of their obligations to perform review over targeted sanctions, not least given their serious impact on individual freedom and well-being. According to him, ‘if there is no proper or adequate international review available national review procedures—even for international lists—are necessary. These should be available in the States that apply the sanctions.’Footnote ¹⁰²

A third consideration goes back to the perceived role of the SC as issuing ‘orders’ to States (and organizations that represent them) about whom to sanction. This perception makes it look as though domestic political authorities (or regional authorities acting on their behalf) have been relegated to SC agents instead of autonomous subjects of international law with their own rights and obligations under that law to decide on the application of targeted sanctions. Indeed, for the CFI, in the Kadi and Yusuf judgments, the question was not whether the CEU and its members had opted for the best method of implementation. However, the field of international law that touches upon matters of implementation reveals that choices were available, choices that would have enabled the EU and its members to conform with the SC-mandated obligations regarding asset freezing in a manner more consonant with international and European human rights standards. Especially pertinent in this respect would have been the choice of reaffirming the importance of discharging UN commitments while abstaining from Community action in favour of national action of EU members. The international and European human rights obligations of the latter are considerable and firmly established,Footnote ¹⁰³ and their legal orders do not necessarily regard SC resolutions as having ‘direct effect’, but permit discretion in the application of the sanctions.Footnote ¹⁰⁴ In other words, the court could have used classical international concepts in the implementation field and argued that the Community as a third person was not directly responsible for implementing them.Footnote ¹⁰⁵ As a consequence of the incorporation of the SC obligations and the listing into Community law, however, these measures now have direct effect in the national legal orders. This situation makes it all the more difficult for EU members and their courts to refrain from reviewing the common position in which the listing appears against the backdrop of their own human rights obligations. Indeed, it might provoke negative reactions from national constitutional courts in the spirit of the So-Lange doctrine.Footnote ¹⁰⁶

In particular, the CFI could have questioned the transposition of the listing itself into the Community legal order on the basis that its legal status and quality remains unclear.Footnote ¹⁰⁷ For one thing, the common position in which the listing appears seems to infringe upon the rule-of-law requirement of generality according to which laws should be formulated in general terms (should act impersonally) and that its rules must apply to general classes and should not single out actual persons.Footnote ¹⁰⁸ Moreover, the common position seems to make it impossible for Community institutions (and national institutions of EU members) to ensure the closely related rule-of-law precept that similar cases are to be treated similarly.Footnote ¹⁰⁹ From the standpoint of EU citizens or residents who are subject to such asset freezing, quite regardless of the original source of the listing decision (the CEU or the SC), the effects are the same: their bank accounts are frozen and while they may have a job they cannot be paid. Indeed, this is no marginal consideration, since near half of the individuals whose names appear on the SC listing are reported as residing in Europe and, thus, are subject to Community and/or national decisions on asset freezing. In these situations, a substantive justification for deviating from equal treatment must be forthcoming. Indeed, the CFI develops its own substantive argument: ‘the applicants’ interest in having a court hear their case on its merits is not enough to outweigh the essential public interest in the maintenance of international peace and security in the face of a threat clearly identified by the Security Council in accordance with the Charter of the United Nations'.Footnote ¹¹⁰ However, the claim that the SC listing entails persons of a higher security threat (as opposed to CEU listing persons) that necessitates derogation from the principle of equal rights to effective access to justice is by no means settled. The possibility of cross-listing speaks against this differentiation. Another factor speaking against this argument is the CEU extensive inclusion of the Algerian-based terrorist network called al-Takfir and Al-Hijra as it has ties to Al-Qaida.

D. The Secrecy Dimension

A third challenge posed to court capacities has to do with the considerable reliance on intelligence and secret information in decisions about whom to sanction. Indeed, the basis for CEU listing decisions and, to some extent, SC decisions, is treated as confidential or secret. Much of the relevant material on which such decisions are based are not extracts from court proceedings but intelligence information. In order for courts to be able to perform effective judicial review in cases concerning targeted sanctions, it is essential for them to be able to access the information on which decisions on asset freezing and listing are based. However, presently, in the Community context, there is no established procedure for sharing such information between the Community Courts and the CEU. This obstacle was noted early on by the Community Courts. As was held by the CFI in the case of Aden:

However, it then continued by emphasizing the importance of disclosing

Thus, the evidentiary difficulties were not seen as de facto restricting the competence of the CFI to handle these cases; to the contrary. In the words of the Court: ‘The Community Courts must be able to review the lawfulness and merits of the measures to freeze funds without it being possible to raise objections that the evidence and information used by the Council is secret or confidential.’Footnote ¹¹³

The problems posed by inaccessible evidence become all the more protracted with respect to SC listing decisions, since a direct institutional relationship between the SC Sanctions Committee and the Community Courts is lacking. Indeed, this might have added to the CFI's choice of backing down from a rule in favour of judicial scrutiny of its decisions. For example, in response to actions brought against SC listing decisions, the CFI asserts that it is not for ‘the Court to verify that there has been no error of assessment of the facts and evidence relied on by the Security Council in support of the measures it has taken or … to check indirectly the appropriateness and proportionality of those measures’.Footnote ¹¹⁴ Nonetheless, inaccessible evidence need not be understood as delimiting the scope for European judicial review. In a Turkish case, Yasin al-Qadi, the 10th Division of the Turkish Council of State, which examined the case as a Court of First Instance, issued a judgment on 4 July 2006, cancelling the relevant sections of the Cabinet Decision of 22 December 2001 that had frozen Al-Qadi's assets in Turkey. The 10th Division of the Council of State based its decision on the fact that the information and documents of the SC, which alleged that Al-Qadi was associated with Al-Qaida, should have been (but were not) presented to the judiciary in Turkey to enable an evaluation of the materials.Footnote ¹¹⁵

A guarantee of court access to confidential or secret information, important as it is, may not be enough to secure effective judicial review in relation to targeted sanctions (or other ‘securitized’ matters). It might furthermore be necessary for the court to possess the expertise deemed essential to make a proper assessment of the material given to it. According to Iain Cameron,

Furthermore, the UN Special Rapporteur Martin Scheinin suggests that, if there is a valid justification at all for using intelligence and secret information, it might also be necessary to provide vetted or security-cleared counsel.Footnote ¹¹⁷

In addition, some rules and standards of evidence might need to be developed in order to make informed assessments of such information and ensure consistency in treatment across applications. While the CEU has established some criteria for listing decisions, these may not be specific enough to serve the courts in their evaluation as to whether ‘the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power’ as well as of the ‘Council's assessment of the factors as to the appropriateness on which such decisions are based’.Footnote ¹¹⁸ One example is the criterion that names proposals should be made on the basis of ‘serious and credible evidence or clues’. What does it mean? What should be the threshold for such evidence or clues? Can it reasonably stand alone as a criterion or must it be accompanied with other kinds of more accessible and conclusive evidence, such as judgments of national courts? Indeed, if the imposition of targeted sanctions is not a ‘soft’ measure, but a form of criminal punishment (confiscation), decisions on listing and asset freezing must be part of the final outcome of court proceedings in which fair trial and due process have been respected, and not a punishment imposed by the political executive on the basis of ‘serious and credible evidence or clues’ emanating from intelligence and security services.

In the recent Sison judgment,Footnote ¹¹⁹ the CFI reaffirmed its competence to decide on the merits in CEU decisions concerning asset freezing, but indicated that there is still no procedure for settling the question whether applicants, their lawyers, or the Court may be provided with the evidence or information alleged to be confidential. While such a procedure was regarded as not being necessary to rule in relation to the action,Footnote ¹²⁰ it made it impossible for the court to review the actual grounds on which the contested decision has been based. Thus, towards the end of its judgment, the CFI lamented that ‘it is not, even at this stage of the procedure, in a position to undertake the judicial review of the lawfulness of … [the contested decision]’.Footnote ¹²¹ However, rather than backing down, it led the court to rule in favour of the applicant.Footnote ¹²² While benefiting targeted persons, this development might be unfortunate from the standpoint of the CEU if its decisions are well-founded. It must be in its own interest, too, to establish new procedures for information sharing, so as to ensure that its decisions are not overruled, and in this manner also demonstrate its readiness to conform with human rights.

One commentator hesitates about the adaptability of the Community Courts to securitize matters. As he suggests, its composition and international character are factors that speak against the idea of seeking to empower these courts in relation to security-related cases.Footnote ¹²³ His concerns seem unwarranted, though. In the last decade, international courts and tribunals have demonstrated their capacities to operate in more securitized environments and to manage security-sensitive evidence, including offering witness protection, especially in the field of international criminal justice. Another factor that may speak against adaptability is the status of these courts as regional integration courts. However, while it is true that these courts were not set up to safeguard respect for fundamental human rights in relation to Council action on matters of foreign and security policy, to the extent that European institutions are moving into security-burdened areas of decision-making, it may be both desirable and essential to adjust the courts to this reality through the establishment of new procedures and the acquisition of expert knowledge, and so on, in a lead to care for the legitimacy of these court as perceived by those who are subjects of Community law and in particular by individuals whose freedom and well-being is at stake as a result of the changing orientation and focus of European institutions.

Having stressed the importance of court capacities to handle security-sensitive cases in order to secure access to justice in the fight against terrorism, it must be emphasized that the question whether the CEU targeted sanctions regime can remain intact in spite of its troubled relationship with fundamental and human rights remains unsettled. The assumed ‘provisional’ and ‘administrative’ character of these sanctions is inevitably called into question in the absence of any clear indication as to when the sanctions will be suspended and in the light of decision-makers' reliance on secret or intelligence information to impose the measure in question. From this standpoint, claims about the need to empower civil courts in the field of security-sensitive matters seem to legitimize further those controversial ideas that underpin the global securitization process but which lack any solid moral and legal foundation. In this sense, while it is important to spell out the conditions for effective European judicial review in a securitized environment, including court access to, and evaluation of, secret and confidential evidence, it is of equal importance to be wary of the fact that court empowerment on matters of security would, at best, if at all, be a ‘second-best’ option to the challenges facing civil courts in such an environment.