Diritto Alla Tutela Giurisdizionale, Sanzioni Individuali Contro Il Terrorismo Internazionale E Giudici Dell'Unione Europea (Due Process Rights, Counter-Terrorism Targeted Sanctions and the Judicial Institutions of the European Union)

La legislazione penale, 2012, fasc. 2, pp. 415-438

29 Pages Posted: 3 Jan 2013

Date Written: April 30, 2012

Abstract

The article provides an analytical assessment of the case law of the judicial institutions of the European Union on targeted sanctions, focusing in particular on the due process rights aspects of the judgements issued by the General court and the Court of Justice so far.

European judges resolutely affirm their competence to review acts establishing sanctions – both the EU autonomous ones and those implementing the Security Council’s Consolidated List from the point of view of their conformity with the legal order of the European Union and specifically with the fundamental rights protected by it. They have repeatedly found that the procedure leading to the application of targeted sanctions lacks procedural fairness, inasmuch as it neglects the rights of targeted persons, groups and entities to defence and to an effective judicial remedy. This approach is soundly grounded in EU law and it appears defensible under international law as well.

However, a number of issues are still unsettled: prominent among them are those concerning access to evidence, the legal nature of the restrictive measures under discussion and the legal relation, under the Charter of the United Nations, between the obligations to implement Security Council Chapter VII resolution and to respect fundamental rights and liberties. The first directly affects the rights to defence and to effective judicial remedy and requires that a balance be struck between non-disclosure, advocated by States, and disclosure, advocated by targets; uncertainties on the legal nature of the restrictive measures under discussion affect the correct determination of the safeguards to be afforded to targets under (national and) international law. As to the third, the article criticizes the common view according to which, under art. 103 UN Charter, the obligation to implement Security Council Chapter VII resolutions on targeted sanctions has priority over the human rights obligations of UN Member States towards targeted individuals, groups or entities. It argues that Member States of the United Nations have equally reinforced obligations to implement Security Council Chapter VII resolutions and to protect human rights and that resolutions establishing sanctions have to be interpreted accordingly. It submits that, in a significant shift from its previous case-law, the recent judgement of the European Court of human rights in the Al-Jedda case goes in that direction. On this basis, effective protection of listed subjects’ rights can be pursued, according to international human rights agreements themselves, without sacrificing the equally imperative objective to fight international terrorism (and, more in general, to implement Security Council action to maintain international peace and security).

Note: Downloadable document is in Italian.

Keywords: targeted sanctions, human rights, hierarchy in international law,

Suggested Citation

Lugato, Monica, Diritto Alla Tutela Giurisdizionale, Sanzioni Individuali Contro Il Terrorismo Internazionale E Giudici Dell'Unione Europea (Due Process Rights, Counter-Terrorism Targeted Sanctions and the Judicial Institutions of the European Union) (April 30, 2012). La legislazione penale, 2012, fasc. 2, pp. 415-438, Available at SSRN: https://ssrn.com/abstract=2196035

Monica Lugato (Contact Author)

LUMSA University of Rome ( email )

Via Pompeo Magno 22
Rome, Rome 00192
Italy
00390668422412 (Phone)

HOME PAGE: http://www.lumsa.it/monica-lugato

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