EU Afghanistan, Somalia and Tunisia listing updates

In order to implement decisions by the UN Security Council to amend its sanctions listings, the EU has added Torek Agha to its Afghanistan list and deleted Ali Ahmed Nur Jim’ale from its Somalia list.

The US sanctioned Torek Agha in October for being “a long-standing Taliban member”, who had “been central to spearheading brutal military attacks and raising millions of dollars to support the Taliban’s ruthless acts of terrorism” (see previous blog), allegations echoed by the UN in its reasons.  Ali Ahmed Nur Jim’ale was said by the UN to have supported al-Shabaab, listed itself for threatening the peace, security, or stability of Somalia.  HM Treasury’s notice is here.

The Afghanistan update is made by Council Implementing Regulation (EU) 2015/2043 implementing Council Regulation 753/2011 and Council Implementing Decision (CFSP) 2015/2054 implementing Council Decision 2011/486/CFSP.  The Somalia update is made by Council Implementing Regulation (EU) 2015/2044 implementing Council Regulation 356/2010 and Council Implementing Decision (CFSP) 2015/2053 implementing Council Decision 2010/231/CFSP. The UN’s press releases on the Afghanistan and Somalia updates are here and here.

The EU has also published a notice for the attention of people and entities listed in its Tunisia sanctions, informing them that, following a review, the Council has concluded that they should all remain on the list of those designated, and that they may request reconsideration of that decision and present observations to the Council before 1 December 2015.

EU EXTENDS TUNISIA SANCTIONS AND AMENDS REASONS FOR LISTING THREE INDIVIDUALS ON SANCTIONS LIST

On 30 January 2015, the European Union extended asset freezes against forty-eight individuals currently subject to sanctions on Tunisia until 31 January 2016.  The EU also amended the statement of reasons for listing three of these individuals.

Council Implementing Regulation (EU) 2015/147 amends Council Regulation (EU) 101/2011) and Council Decision (CFSP) 2015/157 amends Council Decision 2011/72/CFSP.

The original reasons for listing the three individuals, Moncef Ben Mohamed Ben Rhouma Trabelsi, Mohamed Adel Ben Mohamed Ben Rehouma Trabelsi, and Faouzi Ben Haj Hamda Ben Haj Hassen Ben Ali, stated that they were being investigated on suspicion of money laundering. The amended reasons state that their activities are subject to judicial investigation for complicity in the misappropriation of public monies by the holder of a public office and in exerting wrongful influence over the holder of a public office. The amended reasons also state that the three men are now deceased.

On 19 January 2015 the UK Minister for Europe, David Lidington, explaining these measures to the European Scrutiny Committee, said that Tunisia had made “impressive progress in its transition to democracy”, but that “progress had been slow” in addressing the corruption of the previous regime.  He went on to say that this is why he supports “the aspiration to extend the current restrictive measures to allow investigations into the alleged corruption of listed individuals to be completed and ensure that the structures and processes in Tunisia were in place to return misappropriated assets to their rightful owners”.

The UK Treasury’s notice detailing the EU amendments and updating the UK listings is here.  A full list of EU sanctions currently in force against Tunisia can be found in the “sanctions in force” section of this blog.

EU TO RENEW TUNISIA SANCTIONS AND HAS ‘NEW ELEMENTS’ AND DATA RELATING TO THE PEOPLE LISTED

The European Union has published a Notice for the attention of people subject to restrictive measures under Council Decision 2011/72/CFSP and Council Regulation (EU) No 101/2011, stating that the Council of the European Union intends to renew its restrictive measures (asset freezing measures and travel bans on listed people) and that the Council “holds on its file new elements” concerning everyone listed, and invites them to requests the information relating to them before 15 January 2015. This gives those people only 3 working days from publication of that notice to do so. The notice says that observations received will be taken into account as part of the Council’s periodic review.

A separate notice for the “data subjects” to whom the same measures apply was also published, under the EU data protection Regulation (EC) No 45/2001, informing them that the data controller is the Council of the EU and giving contact details in relation to the data processing operation (establishing and updating the list of targeted people). The notice says that the data the EU has collected includes data necessary to identify the individuals concerned, a statement of reasons for each listing, and “any other data related thereto”, which “may be shared as necessary with the European External Action Service and the Commission”. This data is retained for 5 years after a person has been removed from the list, or for the duration of any court proceedings.

The EU’s sanctions relating to Tunisia were last renewed on 31 January 2014 (see previous blog), and appear on the ‘sanctions in force’ section of this blog.

Mehdi Ben Ali wins case to annul listing on Tunisia sanctions list

195px-european_court_of_justice_insignia-svgWe previously reported here that three Tunisian nationals won their applications to annul their listings before the General Court of the European Union.

The next Tunisian case has also now succeeded, this time brought by Mehdi Ben Ali in Case T-133/12.  The judgment, handed down on 2 April 2014 in Luxembourg is here (only in French). The basis for the judgment is essentially the same as the previous cases concerning Tunisian sanctions.

The European Union’s sanctions relating to Tunisia are on the ‘sanctions in force’ section of this blog.

EU AMENDS REASONS FOR TUNISIAN LISTINGS

On Friday (31 January 2014) the European Council published a new Decision and Implementing Regulation relating to its restrictive measures “in view of the situation in Tunisia”.

The measures replace the entries for the 45 people listed in the annex (who are subject to an EU wide asset freeze and travel ban) with a new statement of reasons.  This change in the reasoning was foreshadowed in a notice published in December 2013 – see previous blog.  These measures apply until 31 January 2015, and the Council states it is “kept under constant review”.

Everyone on the EU Tunisian sanctions list has been included for an identical reason. Each is said to be a “person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, complicity in the misuse of office by a public office-holder to procure an advantage for a third party and to cause a loss to the administration, and complicity in exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person”.

All of the Tunisian sanctions measures are on the ‘sanctions in force’ section of this blog.  See previous stories on the General Court judgments on Tunisian sanctions here, and the re-listings since then here.

EU INTENDS TO AMEND REASONS FOR TUNISIAN SANCTIONS

tunisiaThe European Union’s restrictive measures against Tunisia currently apply to people that the Council has identified as being “responsible for misappropriation of Tunisian State funds”.  They are available on the ‘sanctions in force’ section of this blog.

The European Council has just published a notice saying that it intends to amend the reasons for listing some people on the Tunisia list so that instead the reasons for each entry in the annex will say:

 ‘Person subject to judicial investigations by the Tunisian authorities for complicity in the misappropriation of public monies by a public office-holder, [complicity in the] misuse of office by a public office-holder to procure an unjustified advantage for a third party and to cause a loss to the administration, and [complicity in] exerting wrongful influence over a public office-holder with a view to obtaining directly or indirectly an advantage for another person.’

Although the reason for this change is unclear, it is possible that the Council has considered the General Court judgments in three Tunisian cases in May 2013 (see earlier blog) in which the Court suggested that being prosecuted for misappropriating State funds might be a sufficient basis for concluding that the applicants were responsible for such misappropriation.

 The individuals in question may submit observations to the Council by 7 January 2014.

FIRST ARAB SPRING SANCTIONS JUDGMENTS – 3 ANNULMENTS OF TUNISIAN LISTINGS BY THE EUROPEAN COURT

195px-european_court_of_justice_insignia-svgIn three judgments handed down on 28 May 2013, the Third Chamber of the General Court of the European Union (the EU’s first instance court) annulled the listings of three people on the European Union’s restrictive measures against Tunisia.  The EU imposed sanctions on people it said were “responsible for misappropriating the funds of the State of Tunisia” in January 2011.  The Court has annulled the listings of Fahed Al Matri, Mohamed Trabelsi, and Slim Chiboub, although the annulments will not take effect until the 2 month period for the European Council to appeal has expired.
The reason the Court annulled their listings was the same in all three judgments.  All of the applicants had been included by the European Council because the Ministry of Foreign Affairs in Tunisia had informed the European Council that they were subject to judicial investigation for money laundering offences in Tunisia. The Court held that this did not satisfy the criterion for designation in the relevant Decision and Regulation (responsibility for misappropriation of State funds) because money laundering does not necessarily imply public as opposed to private funds.  This was not a point the parties had taken in the Trabelsi case, but the Court invited the parties to consider it nonetheless.
The Court also said, following the ECJ’s judgment in Tay Za, that the Council was not entitled to presume that since Mr El Matri was the son-in-law of former President Ben Ali, that money-laundering relating to him would necessarily involve State funds. Somewhat curiously, the Court held that it did not need to consider the standing of Mr Trabelsi’s wife and children to bring their applications since they raised the same arguments as Mr Trabelsi, and appears not to have considered their cases further or annulled the restrictive measures in so far as they applied to them, but did order to pay the Council their costs. Links to the judgments are here: Case T-200/11 Al Matri (Maya Lester appeared for Mr Al Matri), T-187/11 Trabelsi, T-188/11 Chiboub).
The next Arab Spring judgments that are expected will relate to the similar EU sanctions relating to Egypt which the European Courts have not yet adjudicated upon. It may be relevant to the pending Egyptian cases that the Court in the Tunisian cases suggests that being prosecuted (as opposed to convicted) in Tunisia for misappropriating State funds might have been a sufficient basis for concluding that the applicants were responsible for misappropriation, and that the Court will  not permit the Council to rely on presumptions as a reason for including family members.