Ivory Coast Instability May Excuse Late Filing

(CN) - Five blacklisted by the EU for inciting riots to oust the president of the Ivory Coast can pursue a belated challenge, an adviser to Europe's high court said.

Alassane Ouattara defeated Ivorian president Laurent Gbagbo in October 2010, and shortly afterward Gbagbo, his wife and his former cabinet responded with a propaganda war.

The Council of the European Union responded by blacklisting the rabble-rousers, banning their entry into the EU and freezing all EU-held assets.

EU lawmakers assembled a dossier on the group, accusing Gbagbo and former prime minister Affi N'Guessan of "expression of radical views and active disinformation [and] incitement to violence."

For "participation in the illegitimate government of Mr. Laurent Gbagbo," the document listed former budget minister Justin Kone Katina and Danièle Boni Claverie, a French national who had served as minister for "Women, the Family and Children."

The group fought the sanctions with a July 2011 lawsuit, but the General Court of the European Union dismissed their actions as time-barred.

Though the group had missed the two-month deadline for appealing a council decision, they claimed on appeal that the state of war in the Ivory Coast (Côte d'Ivoire) constituted a force majeure that made timely filings impossible.

Advocate General Pedro Cruz Villalon noted Wednesday that the "special, if not exceptional, nature of the circumstances surrounding the adoption of the contested measures," as they affect the group's rights, guided his analysis for the Court of Justice.

"These are, and this is of particular interest for our purposes, measures adopted at a stroke, without the parties concerned being heard or given any opportunity of challenging their effectiveness," Villalon wrote. "Doubtless, there is no lack of reasons to justify such an expedited procedure as part of international operations to maintain or re-establish peace and stability in regions where the most basic rights of individuals may be under threat. However, this does not mean that we can disregard the fact that, in the interests of the effectiveness of these objectives, this procedure is sacrificing some of the safeguards inextricably linked to the notion of the rule of law. The first of these is encapsulated in the principle that no one may suffer an infringement of his rights and interests without being given the opportunity to be heard."

EU law ensures that anyone may seek a judicial review of decisions that affect rights, freedoms and interests, and lawmakers have a duty to see that those they blacklist receive a "personal notification" prior to the levying of sanctions, Villalon said.

"Against a backdrop of civil war - or at least one of the greatest insecurity and confusion, in a territory where the effectiveness of a reasonably established public authority is not guaranteed - it is clear that the normal channels and modes of communication cannot be expected to function smoothly in a situation of peaceful and orderly coexistence," he added. "As regards the addressees of the measures, they are precisely the persons and entities who have been accused of a certain degree of involvement in the circumstances that have made possible this instability which the measures are intended to tackle."

Communication difficulties make it difficult to discern whether a filing is time-barred, according to the opinion.

Villalon said that the lower court broke its own rules of procedure by automatically dismissing the group's actions without considering that the chaotic situation in the Ivory Coast prevented them from a timely filing.

"I believe that the circumstances of the case should have led the General Court to take the opportunity provided by [the rules of procedure] which enables the General Court, at any time, of its own motion, to decide whether there exists any absolute bar to proceeding with an action, 'after hearing the parties,'" Villalon wrote. "That hearing would have made it possible for the action to be declared inadmissible after a hearing had been conducted in accordance with due process."

Villalon's opinion is not binding on the Luxembourg-based high court.

The group he considered faces an uphill legal battle in light of the high court's decision last month to uphold EU sanctions against former president Gbagbo's wife. Nadiany Bamba was sanctioned for publishing a radical newspaper that obstructed "the peace and reconciliation processes through public incitement of hatred and violence and through participation in disinformation campaigns," the court found.

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