(CN) – EU lawmakers cannot freeze the funds of suspected terrorist groups unless such entities face active and ongoing prosecutions, an adviser to European Union Court of Justice said Wednesday.
The Al-Aqsa Foundation describes itself as an Islamic social aid institution that provides financial support to organizations with humanitarian projects in Israel, the West Bank and the Gaza Strip.
But the U.S. State Department has accused the organization of providing financial support to the terrorist group Hamas. In 2003, the Treasury Department designated Al-Aqsa as a specially designated global terrorist group for using humanitarian relief as a cover to provide support to Hamas and other terrorists. This designation by the U.S. froze the Al-Aqsa’s assets and made transactions with the group illegal.
In Europe, the Dutch wing of Al-Aqsa has been fighting its inclusion on the EU Council’s terrorism watch list and the freeze of its assets since 2003. Europe’s General Court ordered the council to remove the organization from the list in 2007.
The same court annulled further legislative decisions against the group in 2010 after the Netherlands dropped its active investigations into Al-Aqsa’s actions. Such investigations are a requirement for inclusion on the EU Council’s terror list, according to the Court of Justice.
On appeal, the Dutch government asked the EU high court to examine the conditions under which funds may be frozen. Advocate General Verica Trstenjak advised the Court of Justice to uphold the 2010 ruling Wednesday.
“The council enjoys a wide margin of discretion in making that assessment,” Trstenjak wrote. “However, in the light of the schematic link between the restrictive measures adopted by the council and the decision to prosecute taken by [the Netherlands], it nonetheless becomes clear from what point the council must necessarily take the view that there are no longer any grounds for keeping the person concerned on the list … the view simply can no longer be taken that the as yet unconvicted person or entity concerned continues to be the subject of investigations. After all, it is ultimately those investigations alone which justify the measure adopted by the council.”
The council has a duty to regularly review the watch list to protect both EU citizens from terrorist threats, and to protect people and entities from unnecessary government harassment, the advocate general pointed out.
“In this regard, the council’s regular review of the list protects the person or entity concerned against two risks which are intolerable in a state governed by the rule of law: first, the risk that his/its name continues to appear on the list even though the investigative measures directed against him/it have been terminated, unsuccessful or have yielded no evidence but this is not reflected in a corresponding decision closing the investigations which exonerates that person or entity, and, secondly, the risk that his/its name continues to appear on the list even though the decision to prosecute itself ceases to apply on account of an actus contrarius on the part of the competent authority or pursuant to a judicial decision,” Trstenjak wrote. “In the latter event, the council has a mandatory obligation to amend the list.”
Since the Dutch government repealed its own terrorist regulations against Al-Aqsa nearly 10 years ago, and since the EU Council had not checked whether there were any other national investigations pending against the organization, the lawmakers must remove it from the terrorism watch list and unfreeze its assets.
“Taking into account the severity of the interference with the right of ownership to which a person is exposed where his assets are frozen solely on the basis of suspicion and investigative measures directed against him, it seems appropriate that, if such interference is to be justified at all, it should be made subject to very strict conditions,” Trstenjak wrote.
“In order to have due regard for the fundamental requirement to guarantee the right of ownership, the council therefore has a duty to examine carefully whether a decision justifying the freeze exists, whether that condition continues to be satisfied and, in the event, for example, that the original decision ceases to apply, to make keeping the person or entity concerned on the list contingent on the existence of a new decision which also justifies the freeze,” she added. “However … that was not the case here.”
The Court of Justice will take Trstenjak’s nonbinding opinion under advisement when it hears the case at a later date.