EU court annuls LTTE anti-terror measures on procedural grounds

Law courtsEuropean Union judges struck down anti-terrorism sanctions against the Tamil Tigers that were imposed by the EU but said on Thursday that the assets of the Sri Lankan group should remain frozen for the time being.

The court said a decision by EU leaders in 2006 to place the Liberation Tigers of Tamil Eelam (LTTE) on a list of terrorist organisations had been based on “imputations derived from the press and the Internet” rather than on direct investigation of the group’s actions, as required by law.

It said in a statement that the EU had also failed, when following Indian sanctions against the Tigers, to ensure that India gave sufficient judicial protection to those it accused.

However, the court rejected the LTTE’s contention that it was exempt from EU anti-terrorism legislation because it was engaged in an “armed conflict” with the Sri Lankan government and bound by the laws of war. The court, which stressed it was taking no view on whether the LTTE was a terrorist organisation, said EU laws on terrorism also applied to armed conflicts.

Saying that sanctions might be applied in future against the Tigers, who were defeated militarily in 2009, the court said assets that were frozen should remain so “temporarily”.

THE GENERAL COURT (Sixth Chamber, Extended Composition)

hereby:

1.      Annuls Council Implementing Regulation (EU) No 83/2011 of 31 January 2011, No 687/2011 of 18 July 2011, No 1375/2011 of 22 December 2011, No 542/2012 of 25 June 2012, No 1169/2012 of 10 December 2012, No 714/2013 of 25 July 2013, No 125/2014 of 10 February 2014 and No 790/2014 of 22 July 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulations (EU) Nos 610/2010, 83/2011, 687/2011, 1375/2011, 542/2012, 1169/2012, 714/2013 and 125/2014 in so far as those measures concern the Liberation Tigers of Tamil Eelam (LTTE);

2.      Maintains the effects of Implementing Regulation No 790/2014 for three months following delivery of this judgment;

3.      Orders the Council of the European Union to pay, in addition to its own costs, the costs of the LTTE;

4.      Orders the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own respective costs.

PRESS RELEASE No 138/14

Luxembourg, 16 October 2014

Judgment in Joined Cases T-208/11 and T-508/11 Press and Information Liberation Tigers of Tamil Eelam (LTTE) v Council

The Court annuls, on procedural grounds, the Council measures maintaining the Liberation Tigers of Tamil Eelam on the European list of terrorist organisations

However, the effects of the annulled measures are maintained temporarily in order to ensure the effectiveness of any possible future freezing of funds.

The Liberation Tigers of Tamil Eelam (LTTE) are a movement which opposed the Government of Sri-Lanka in a violent confrontation which resulted in the LTTE’s defeat in 2009.

In 2006, the Council placed the LTTE on the EU list relating to frozen funds of terrorist organisations and has maintained them on that list ever since, referring to, inter alia, decisions of Indian authorities.

The LTTE contest their maintenance on the list. They submit that their confrontation with the Government of Sri-Lanka was an ‘armed conflict’ within the meaning of international law, subject only to international humanitarian law and not to anti-terrorist legislation. In addition, the maintenance on the list relating to frozen funds is based on unreliable grounds which do not derive from decisions of ‘competent authorities’ within the meaning of Common Position 2001/931/CFSP.(1)

In today’s judgment, the Court finds that EU law on the prevention of terrorism also applies in ‘armed conflicts’ within the meaning of international law. Therefore, the LTTE cannot claim that the existence of an armed conflict precludes a possible application of EU law with regard to them.

As regards the decisions of Indian authorities relied upon by the Council, the Court finds that an authority of a State outside the EU may be a ‘competent authority’ within the meaning of Common Position 2001/931. However, the Council must carefully verify at the outset that the legislation of the third State ensures protection of the rights of defence and of the right to effective judicial protection equivalent to that guaranteed at EU level. The Court finds that the Council did not carry out such a thorough examination in the present case.

The Court finds that the contested measures are based not on acts examined and confirmed in decisions of competent authorities, as required by Common Position 2001/931 and case-law,(2) but on factual imputations derived from the press and the internet.

Therefore the Court annuls the contested measures while temporarily maintaining the effects of the last of those measures in order to ensure the effectiveness of any possible future freezing of funds.

The Court stresses that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of Common Position 2001/931.

1 Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93)
2 See Article 1(4) of the Common Position and Case:C-539/10 P and C‐550/10 P Al-Aqsa v Council and Netherlands v Al-Aqsa

NOTE: An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of the General Court within two months of notification of the decision.

NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are contrary to European Union law. The Member States, the European institutions and individuals may, under certain conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the act.

Sri Lanka Ministry of External Affairs  expressed concern over the European Union Court of Justice, ruling which  on procedural grounds struck down the European Council measures of 2006, maintaining Sri Lanka’s defunct Tamil Tiger terrorist group, Liberation Tigers of Tamil Eelam (LTTE) on the European list of terrorist organizations but allowed measures to keep their assets frozen.

 The statement released by Sri Lanka’s Ministry of External Affairs pointed out that, “Expectedly, the ECJ judgment requires in-depth study by all the defendant parties. It is noteworthy that the Court has stressed the annulments to be “on fundamentally procedural grounds” and “do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group.” Further it is observed from the decision of the ECJ that “the effects of the annulled measures are maintained temporarily in order to ensure the effectiveness of any possible future freezing of funds”.

The statement further said, “Conscious of the fact that the listing of the LTTE is a matter internal to the EU, Sri Lanka is confident that the European Commission and the EU Member States will take the best possible decision on the future course of action to be taken in this regard, in accordance with their own legal architecture in preserving sovereignty.

“It is noteworthy that a number of EU member countries have carried out investigations against LTTE activists in their territories, some of which are ongoing, while some have resulted in the accused being sentenced by court,” the ministry said. It also said the court decision may affect the security of Sri Lankans living in EU territory and EU citizens of Sri Lankan origin, who are likely to come under pressure once again by pro-LTTE activists.

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