(CN) - The European Union should again freeze terrorist funds - but tread carefully while doing so, an adviser to Europe's highest court said Tuesday.
Advocate General Yves Bot's opinion marks another twist in the long road to freeze the funds of Yassin Abdullah Kadi, a known associate of Osama bin Laden.
Years before a U.S. court upheld Kadi's designation as a global terrorist, an EU court found in 2008 that the European Commission went too far in using U.N. Security Council measures to freeze Kadi's assets.
Specifically, the European high court concluded that the EU's implementation of U.N. resolutions cannot avoid judicial review.
Tasked with resolving Kadi's case on remand, the General Court annulled the commission-ordered freeze of Kadi's assets, saying it was required to make a "full and rigorous judicial review" of the legality of the commission's actions.
The commission, the European Council and the United Kingdom appealed the lower court's annulment. Bot admitted in his opinion for the Court of Justice that the high court's judgment in Kadi I requires clarification, but he argued against full immunity from jurisdiction.
"The respect which the European Union must pay to the binding rules of international law does not therefore have to be reflected in immunity from jurisdiction for the contested act but in an adaptation of the judicial review conducted," Bot wrote. "Consequently, I consider that the court's confirmation of its role in the protection of the fundamental rights of persons on the [U.N's] Sanctions Committee's list must be subject to the clarifications that are necessary as regards the extent and the intensity of the review to be conducted by the EU judicature of the EU acts giving effect to those lists."
Bot also chided the General Court for taking a "fundamentally incorrect" view of the high court's intentions regarding judicial review.
"The expression 'in principle [a] full review' and, more specifically, the use of the words 'in principle' where the Court of Justice has placed them, appears to suggest an interpretation which is precisely the opposite of the one adopted by the General Court," Bot wrote. "If the Court of Justice had wished to express the idea that, from the point of view of its intensity, its review had to be full, without any exceptions, the use of the words 'in principle' was pointless. If it had wished to stress that it intended to establish an absolute principle, it should have used the expression 'on principle the full review.'"
He continued: "The true position is that, in three words [in French], the court expressed clearly and concisely the idea that its review, however broad it is, is full only in principle and that there are therefore possible exceptions. If there is an area in which an exception is appropriate, it is, for the reasons set out above, in the area of the fight against terrorism, which includes prevention, seen from the perspective of global coordination. Whilst this court has certainly accepted the principle of a review of the internal lawfulness of EU acts which are designed to give effect to the resolutions adopted by the Security Council, it has not specified the conditions for such a review. In this regard, contrary to the claim made by the General Court, the statement by the Court of Justice in its judgment in Kadi, that it must be possible to apply judicial review to the lawfulness of the grounds on which the contested EU measure is founded does not imply an intensive review by it of the justification for that act on the basis of the evidence in support of the factual and legal grounds cited."
Bot noted that the high court has consistently ruled that asset freezes are "temporary precautionary measures which do not deprive the persons concerned of their property," and as such do not constitute criminal sanctions. Additionally, the U.N. Sanctions Committee has improved its procedures for listing and delisting individuals - allowing EU institutions to presume that the committee's decisions are justified," according to the opinion.
"I consider that an effective global fight against terrorism requires confidence and collaboration between the participating international, regional and national institutions, rather than mistrust," Bot added. "The mutual confidence which must exist between the European Union and the United Nations is justified by the fact that the values concerning respect for fundamental rights are shared by those two organizations. This does not mean that carte blanche should be given to the decisions of the Sanctions Committee or that they should be applied automatically without any critical analysis, even where a manifest error is highlighted during the implementation process. However, in my view, since the listing and delisting procedures in the Sanctions Committee allow for a careful examination of whether listings are justified and whether or not it is necessary to maintain them, the EU courts should not adopt a standard of review which would require the EU institutions to examine systematically and intensively the merits of the decisions taken by the Sanctions Committee, on the basis of evidence or information available to that body, before giving effect to them. The improvements to the listing and delisting procedure should strengthen the confidence that the EU institutions and judicature have in the decisions taken by the Sanctions Committee."
The adviser also called for a normal review of formal and procedural aspects of any decision to freeze a suspected terrorist's assets, and a limited review of the merits of the reasons to ascertain that there it made no manifest error.
"The review performed by the EU judicature of the internal lawfulness of EU acts giving effect to decisions taken by the Sanctions Committee must not, in principle, call into question the merits of the listing, except in cases where the implementation procedure for that listing within the European Union has highlighted a flagrant error in the factual finding made, in the legal classification of the facts or in the assessment of the proportionality of the measure," Bot wrote.
The Court of Justice plans to issue its decision in the case at a later date, and is not bound by the adviser's opinion.
Interestingly, the EU removed Kadi from its terror watch list in October 2012.
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