Terrorist Groups (Foreign Terrorist Organisations)

Initial Imposition of EU Sanctions

The EU initially imposed sanctions against Osama bin Laden and those associated with the Al-Qaeda network in 2001, following the 9/11 attacks

UN Sanctions

UNSC Resolution 1989 (2011)

UNSC Resolution 1988 (2011)

UNSC Resolution 1390 (2002) – Taliban had failed to respond to demands made in previous resolutions. Travel bans imposed on Osama bin Laden, members of Al-Qaeda and other individuals associated with them

UNSC Resolution 1373 (2001) – lays out wide-ranging strategies to combat terrorism and in particular the fight against the financing of terrorism

UNSCR 1267 (1999) and UNSCR 1333 (2000) – flight ban and export restrictions imposed on Afghanistan

Form of the Sanctions

Travel bans

Arms embargo

Asset freeze

Prohibition on provision of financial or other assistance

Criteria for Inclusion in Targeted Measures

Sanctions implemented against “persons, groups and entities involved in terrorist acts” (definitions in Article 1(1) of Council Common Position 2001/931/CFSP (28 December 2001)

Provisions in Force

Council Decision 2005/671/JHA (29 September 2005)

  • Provides for specific measures for police and judicial cooperation to combat terrorism
  • Article 2(1): each Member State shall designate a specialised service within its police services which will have access to all relevant information concerning criminal investigations
  • Article 2(4): the following information must be transmitted to Europol – data identifying the person, circumstances of the acts under investigation, offence concerned, links with other cases, threat posed
  • Article 3: Member States shall where appropriate take the necessary steps to set up joint investigation teams to conduct criminal investigations into terrorist offences

Council Common Position 2002/402/CFSP (29 May 2002) (Repealed by Decision 2016/1693)

  • Direct or indirect supply to listed persons and entities of arms and related material
  • European Community to continue asset freezes against those listed in the terrorist sanctions list
  • Member States shall take necessary measures to prevent entry into or transit through their territories of those listed persons

Implemented by Council Decision 2011/487/CFSP (2 August 2011)

Council Decision (CFSP) 2016/1693 (Repealed Common Position 2002/402/CFSP)

  • Direct or indirect supply to listed persons and entities of arms and related material
  • European Community to continue asset freezes against those listed in the terrorist sanctions list
  • Member States shall take necessary measures to prevent entry into or transit through their territories of those listed persons

Council Regulation (EU) 2016/1686

Introduced the power for the EU to impose asset freezes and travel bans on people and entities connected with ISIL/Al-Qaida.  Previously, the EU could only implement UN or individual EU member state listings.

The new power allows the EU to impose travel bans and asset freezes on people and entities identified as being associated with ISIL (Da’esh)/Al-Qaida, including those providing them with financing, inciting or provoking acts in support of them, or travelling or seeking to travel to or from the EU with the aim or supporting or receiving training from them.

Council Regulation (EC) No 881/2002 (29 May 2002)

  • Asset freezes and prohibitions on the provision of funds and assistance to those persons and entities listed in the Annex, which provides for persons and entities that have been designated by the UN Sanctions Committee
  • Annex includes 213 natural persons (including Osama bin Laden, ‘Abu Qatada’, Youssef Nada of Nada v Switzerland, and Mullah Omar) and 65 legal persons or entities

Amended by Commission Implementing Regulation (EU) No 934/2014 (1 September 2014) to delete 1 natural person from the list

Amended by Commission Implementing Regulation (EU) No 930/2014 (28 August 2014) to include 1 natural person (Qari Rahmat) 

Amended by Commission Implementing Regulation (EU) No 735/2014 (5 July 2014)

Amended by Commission Implementing Regulation (EU) No 731/2013 (29 July 2013) to delete 1 natural person from the list and to amend the entry pertaining to ‘Abu Qatada’

Amended by Commission Implementing Regulation (EU) No 682/2013 (18 July 2013) to delete 1 natural person from the list

Amended by Commission Implementing Regulation (EU) No 652/2013 (10 July 2013) to delete 1 natural person from the list and to amend another entry

Amended by Council Regulation (EU) No 596/2013 (25 June 2013) to remove Osama bin Laden from the list following his death in Pakistan

Amended by Commission Implementing Regulation (EU) No 1022/2014 (OJ L 283, 27 September 2014) removing one natural person from the list and amending two entries

Amended by Commission Implementing Regulation (EU) No 1058/2014 (OJ L 293, 9 October 2014) to add 14 natural persons and 2 entities to the list and amend the identifying information relating to one individual

Amended by Commission Implementing Regulation (EU) No 1193/2014 (OJ L 318, 5 November 2014) to delist one individual

Amended by Commission Implementing Regulation (EU) No 1273/2014 (OJ L 344, 29 November 2014) to add two individuals to the list

Amended by Commission Implementing Regulation (EU) 2015/167 to update sanctions listings in-line with the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/274 to update sanctions listings in accordance with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/480 to add 3 people and 1 entity, de-list 4 people, and amend the entry for 1 person in accordance with a UN Security Council decision

Amended by Commission Implementing Regulation 2015/532 to list 1 person in accordance  with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/576 to list 1 person and de-list 1 person in accordance  with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/617 to list 2 people in accordance  with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/769 to de-list 6 people in accordance  with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/1330 to de-list 1 person and update the entry of 1 person in accordance  with changes to the UN Security Council’s blacklist

Amended by Commission Implementing Regulation (EU) 2015/1390 to amend the entries for 7 people and 4 entities in accordance  with changes to the UN Security Council’s blacklist

Amended by Regulation 2016/1113 to de-list Daniel Martin Schneider

Amended by Commission Implementing Regulation (EU) 2016/1186 to de-list Aschraf Al-Dagma

Council Regulation (EC) No 2580/2001 (28 December 2001)

  • Asset freezes on assets of every kind
  • Article 2(3): Council can review and amend lists when acting unanimously
  • Article 3: knowing and intentional participation in activities designed to provide funds to terrorists is prohibited
  • Article 4: banks and financial institutions shall provide information which would facilitate compliance with this Regulation
  • Article 5(2): competent authorities may grant specific authorisations where they are deemed appropriate in order to prevent financing acts of terrorism
  • Article 7: Commission can amend Annex on the basis of information supplied by Member States
  • Article 9: sanctions “shall be effective, proportionate and dissuasive”
  • Annex lists competent authorities

Amended by Council Implementing Regulation (EU) No 790/2014 (23 July 2014)

Amended by Council Implementing Regulation (EU) No 125/2014 (11 February 2014) to include 11 persons and 25 groups or entities (including Abu Nidal Organisation, Hamas, Hezbollah, Kurdistan Workers’ Party)

Amended by Commission Implementing Regulation (EU) No 646/2013 (6 July 2013) to update information relating to competent authorities

Amended by Council Implementing Regulation (EU) No 1063/2011 (22 October 2011) to amend the list, adding 5 natural persons and removing 1 natural person

Amended by Council Implementing Regulation (EU) No 1375/2011 (23 December 2011) to replace the original list with a new list containing 26 natural persons (14 of which were removed by Council Implementing Regulation (EU) No 213/2012) and 25 groups or entities

Amended by Corrigendum to Council Regulation (EC) No 501/2009 (18 June 2009) to replace the list alluded to in Article 2(3) of Council Regulation (EC) No 2580/2001 with a new list containing 26 natural persons (including Jose Maria Sison) and 29 entities

Amended by Council Decision 2008/342/EC (30 April 2008) to remove 6 natural persons from the list

Amended by Council Implementing Regulation (EU) 2015/513 to renew sanctions against 10 people and 23 entities, and de-list 2 entities

Amended by Council Implementing Regulation (EU) 2015/1325 extending sanctions against all 10 listed people and 23 entities and repealing Council Implementing Regulation (EU) 2015/513

Amended by Implementing Regulation 2016/1127 to renew sanctions against 10 people and 22 entities

Council Common Position 2001/931/CFSP (28 December 2001)

EU should take additional measures to implement UNSCR 1373 (2001)

Article 1(1): Definition of “persons, groups and entities involved in terrorist acts” as “persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts” and “groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities”

Article 1(3): Definitions of “terrorist act”

Article 1(4): Listed persons and entities are only to be listed on the basis of evidence from a competent authority

Article 2: EC shall freeze the funds and other financial assets or economic resources of those listed in the Annex

Article 3: prohibition of the provision of funds and assistance to those listed in the Annex

Article 4: Member States to cooperate to combat terrorism

Annex includes list of 29 individuals and 13 groups and entities (including Continuity IRA, ETA, Hamas, Real IRA)

Updated by Council Decision (CFSP) 2015/521, repealing Council Decision 2014/483/CFSP

Amended by Council Decision (CFSP) 2015/1334 extending sanctions against all 10 listed people and 23 entities and repealing Council Decision (CFSP) 2015/521

Updated by Decision 2016/1136 to renew sanctions against 10 people and 22 entities

Case Law

In R (Othman) v Secretary of State for Work and Pensions [2001] EWHC Admin 1022, ‘Abu Qatada’ had been discovered to have been in possession of substantial capital in spite of the fact that his assets had been frozen. He attempted to argue that the Secretary of State had acted unlawfully by suspending payment of income support benefits to the extent that the Claimant’s livelihood was affected. Collins J held that there was no room to read any exemption to the asset seizures based on provisions needed to maintain a livelihood. In Othman v Council of the European Union (T-318/01) [2009] All ER (EC) 873, the Court of First Instance partially annulled Regulation 881/2002 on the grounds that the restrictive measures violated rights to property and rights of defence.

In Yusuf v Council of the European Union (T-306/01) [2005] 3 CMLR 49, the applicant was included in the sanctions list accused of providing financial or other assistance to the Taliban, Osama bin Laden or Al-Qaeda. The Court of First Instance held that the EC should not be prevented from adapting to new threats by imposing sanctions and that the interference of the sanctions was not an inappropriate or disproportionate interference with rights to property. (OVERTURNED)

In M v HM Treasury [2007] ACD 34, the wives of individuals subject to asset freezes applied for judicial review of a decision to remove social security benefits that they were otherwise entitled to on the grounds that their social security benefits were not within the wording of the sanctions regulations. Judge Kenneth Parker QC refused the application stating that under the Regulation the Member States were obligated to ensure that economic resources were not directly or indirectly made available for the benefit of listed persons. This was upheld on appeal in M v HM Treasury [2007] EWCA Civ 173.

In Segi v Council of the European Union (T-338/02) [2007] 1 CMLR 8, the applicant was listed as being a part of the Basque separatist organisation ETA. The applicant argued that there was no effective judicial remedy. The Court of First Instance held that it did not have jurisdiction to deal with the application relating to damage sustained by the applicant but it did have power to review the content of EU legislation in order to ascertain conformity with EU powers. Ultimately the CFI dismissed the claim. On appeal the ECJ held that the CFI had not erred in its approach and held that the applicant was not entirely without judicial protection as a national court could make preliminary references for questions arising out of a Common Position issue (Segi v Council of the European Union (C-355/04 P) [2007] 2 CMLR 23). Similar findings were made in relation to Gestoras Pro Amnistia, who were also listed as being connected to ETA (Gestoras Pro Amnistia v Council of the European Union (C-354/04 P) [2007] 2 CMLR 22).

In Sison v Council of the European Union (T-47/03) [2007] 2 CMLR 39, the applicant argued that his listing on the grounds that he played a leading role in the Communist Party of the Philippines amounted to inhumane and degrading treatment in contravention of Article 3 ECHR. The applicant was refused interim relief on the grounds that his financial damage could be adequately compensated with damages. In the CFI, the applicant challenged the Council’s refusal to grant him access to the documents that had justified his inclusion on the list. This action was refused both by the CFI ([2005] ECR II-1429) and the ECJ ([2007] 2 CMLR 17). Before the CFI again, Sison argued that the Council was not competent to adopt Regulation 2580/2001 because the Council could not have a judicial role, that the Council had breached his rights of defence, and that the Council had breached his right to effective judicial protection. Whilst the CFI held that there was no foundation for the argument surrounding the Council’s ‘judicial role’, the application was allowed on the grounds that there had been a total failure to state reasons which had rendered the applicant unable to effectively make his views known to the Council. Accordingly there could be no adequate judicial review.

In Kurdistan Workers Party (PKK) v Council of the European Union (C-229/05 P) [2007] All ER (EC) 875, the applicant argued that the CFI had distorted its evidence when it had attempted to argue that its inclusion in Regulation 2580/2001 was unlawful. It was held that the applicant did not pass the ‘individual concern’ test for the purposes of Article 230 of the Treaty of Amsterdam.

In Organisation des Modjahedines du Peuple d’Iran v Council of the European (T-228/02) [2007] 1 CMLR 34, the applicant anti-Shah organisation challenged an asset freeze on the grounds that it had not had an opportunity to make its views known beforehand. The CFI held that it was necessary for the Council to disclose the evidence relied upon to the listed party “either concomitantly or as soon as possible after the decision to freeze funds was made”. Enough information must be given to the listed party to understand the legal basis on which their listing was based so that they can make effective use of the legal remedies available to it to challenge the decision. PMOI successfully challenged the freezing order, but they remained listed. Before the CFI, the applicant challenged their listing on the grounds that they had been denied the opportunity to present its case properly, that its listing was based on the same evidence that had been rejected by the CFI in relation to the freezing order, and that their rights under A1P1 ECHR and Articles 10 and 11 ECHR. The CFI granted the application in part on the grounds that the Council’s ‘statement of reasons’ was insufficient (People’s Mojahedin Organisation of Iran v Council of the European Union (T-256/07) [2009] All ER (EC) 1221). PMOI was delisted in 2008 but was relisted in 2009 on the basis of new information. This second listing was also annulled by the CFI on the grounds that the Council’s refusal to communicate particular information to the applicant had fundamentally undermined the applicant’s rights of defence. The burden of proof was on the Council in these cases and their failure to adduce such evidence undermined the entire case (People’s Mojahedin Organisation of Iran v Council of the European Union (T-284/08) [2009] 1 CMLR 44).

In Mollendorf (C-117/06) [2008] 1 CMLR 11, the ECJ was asked to give a preliminary ruling for a national court in Germany on whether, in a situation where both the contract for the sale of immovable property and the agreement on transfer of ownership of that property had been concluded before the date on which the buyer was included in the list in Regulation 881/2002, and where the sale price had also been paid before that date, Article 2(3) and 491) of that Regulation were to be interpreted as prohibiting the final registration, in performance of that contract, of the transfer of ownership in the Land Registry subsequent to that date. The ECJ noted that Article 2(3) was drafted broadly and that registration was clearly encompassed by the wording.

In AH v Secretary of State for the Home Department [2008] EWHC 1018 (Admin), AH was viewed by the UNSCR, the USA and the UK as an “extremist organiser and facilitator” and was listed. He was made subject to a non-derogating control order. The terms of his control order required him inter alia to move to a different UK city where he had no connections, to observe a curfew, to keep within a limited geographical area and to use restricted communications equipment. AH challenged these terms on the grounds that they did not comply with Article 5 ECHR. Mitting J held that AH had had the initial details of his case disclosed to him and had been given the opportunity to make representations (his ignorance of closed material did not prejudice him). The Secretary of State had acted reasonably and lawfully in the light of significant evidence of the intelligence services.

In perhaps the most famous case law related to sanctions, the Saudi Arabian businessman and philanthropist was listed shortly after 9/11 as being associated with a known terrorist organisation. In Kadi v Council of the European Union (T-315/01) [2005] ECR II-3533, the CFI had dismissed a challenge to the listing. On appeal to ECJ (Kadi v Council of the European Union (C-402/05 P) [2009] 1 AC 1225), the applicant argued that the CFI had erred in law in ruling that Articles 60, 301 and 308 of the Treaty of Nice provided a proper legal basis for the imposition of sanctions, and that the CFI was wrong to hold that the Regulations could not be subject to judicial review because it was designed to give effect to the UNSC Resolution. The ECJ agreed that fundamental rights had been undermined by the refusal to conduct judicial review of legislation designed to implement a UNSC Resolution, and the Regulation was annulled. Kadi was relisted under Regulation 1190/2008 but maintained that he had no terrorist connections, was entitled to full judicial review. The General Court upheld Kadi’s challenge after considering that the task of the General Court’s role was to ensure full review of the lawfulness of the Regulation (Kadi v European Commission (T-85/09) [2011] 1 CMLR 24). In European Commission v Kadi (C-584/10 P) [2014] 1 CMLR 24, the ECJ held that restrictive measures decided at international level enjoyed no immunity from jurisdiction, dismissed the Commission’s contention that the General Court had made errors of law, that competent authorities were required to disclose evidence relied upon to the listed party.

In R (K) v HM Treasury [2009] EWHC 1643 (Admin), K’s husband was listed and had his assets frozen but K was allowed a licence from HM Treasury to withdraw funds to pay for basic family expenses. Under the terms of the licence, K was subject to a monthly reporting obligation. K contended before Burton J that the reporting obligation was unlawful, not sufficiently precise and a disproportionate interference with A1P1 rights. Burton J held that the licence was worded entirely clearly, that the licence did not control K’s expenditure but merely monitored it and was proportionate in line with the wide public interest.

In Secretary of State for the Home Department v F [2010] 2 AC 269, the appellants had been subject to non-derogating control orders and contended that their Article 6 ECHR rights had been violated because the control orders had been made on the basis of closed material. The House of Lords followed A v United Kingdom (3455/05) [2009] 49 EHRR 29, in determining that those subject to control orders must be given sufficient information about the allegations against him to enable him to give effective instructions.

In Hassan v Council of the European Union (C-399/06 P) [2010] 2 CMLR 18, H applied to annul his listing on the grounds that there had been a failure to respect his fundamental rights and freedoms, in particular the right to protection of property and right to a fair public hearing. The CFI had rejected that application. Following Kadi, the ECJ annulled the listing.

In A v HM Treasury [2010] 2 AC 534, HM Treasury had made the Terrorism (United Nations Measures) Order 2006 and the Al-Qaeda and Taliban (United Nations Measures) Order 2006 in order to give UNSC Resolutions. A became designated under these Orders. The Supreme Court held that under this system A had no means of obtaining judicial review of his designation and had been denied effective legal remedies.

In Criminal Proceedings against E (C-550/09) [2011] All ER (EC) 127, in a preliminary ruling the ECJ held that the inclusion of a terrorist group in a list was illegal because of a failure to state reasons for the group’s inclusion and could not form the basis for a criminal conviction. Notwithstanding this the collection of funds from third parties and the transfer of those funds to the group’s executive fell within the prohibition on making funds available under Article 2 of Regulation 2580/2001

In Germany v B (C-57/09) [2012] 1 WLR 1076, in a preliminary ruling the ECJ held that the fact that a person had been a member of a listed organisation and that the listed person had actively supported the armed struggle of that organisation did not automatically mean that that person fell within the exclusion from refugee status provided for by Directive 2004/83 Article 12(2)(b)

In R (Khaled) v Secretary of State for Foreign and Commonwealth Affairs [2012] QB 477, the Secretary of State appealed against a High Court decision that the applications for judicial review made by the respondents involved the determination of civil rights within the meaning of Article 6(1) ECHR. The respondents was listed and had their assets frozen. The Court of Appeal allowed the appeal on the grounds that the procuring of a freezing order was a discharge of public functions, albeit with a dramatic impact on the civil rights of the individual concerned. The freezing order’s procurance and continuance must be reviewable, though not the effect of the order.

In Tariq v Home Office [2012] 1 AC 452, the Secretary of State appealed against the Court of Appeal’s decision that Article 6 ECHR required T to be provided with details of the allegations against him in sufficient detail to enable him to give legal instructions. T cross-appealed against the decision that a Closed Material Procedure was permissible. The Supreme Court, in considering whether a closed material procedure provided effective legal protection, held that the critical questions were whether the system was “necessary and contained sufficient safeguards”. In the circumstances a Closed Material Procedure was lawful. With regard to the issue of disclosure, it was essential that disclosure be kept under review throughout the proceedings to attempt to minimise “very significant inroad[s]” not conventional judicial procedure.

In Nada v Switzerland (10593/08) [2013] 56 EHRR 18, the complainant alleged that Switzerland had breached his rights under Articles 5, 8 and 13. Switzerland had adopted the UNSC Resolutions against the Taliban, and their list included the complainant. He was banned from entering or travelling through Switzerland for 6 years which prevented him from attending family weddings and funerals, in spite of repeated requests for an exemption to the ban. The European Court of Human Rights upheld the complaints in part but held that the complainant had not suffered a “deprivation of liberty” for the purposes of Article 5(1) as he still had free movement within the territory of his permanent residence.

In Mastafa v HM Treasury [2013] 1 WLR 1621, HM Treasury had imposed an asset freeze against M. The appeal concerned whether M’s asset freeze was analogous to the regime under the Terrorism Prevention and Investigation Measures Act 2011 and therefore whether the court was bound by the principles of disclosure as stated in Secretary of State for the Home Department v MB [2008] 1 AC 440 to recognise the applicability of Article 6 ECHR. Collins J held that Article 6 inevitably applied and the Secretary of State was under a duty to observe the “irreducible minimum” of disclosure to enable a fair hearing had to be made.

In Abdulrahim v Council of the European Union (C-239/12 P) [2013] 3 CMLR 41, the applicant appealed against a decision of the General Court which had rejected A’s annulment application. The ECJ held that the General Court had erred in holding that the applicant lacked an interest in bringing proceedings, and that there was therefore no longer any need to adjudicate on the application for annulment. The case was referred back to the General Court.

In R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2014] 2 WLR 1082, Y was subject to an asset freeze. Y contended that that the Secretary of State had listed him on the basis of a “reasonable grounds to suspect” test rather than whether there was hard evidence that criteria were satisfied, and that his designation had been based on evidence obtained by torture in Egypt. The Court of Appeal dismissed the appeal on all grounds.

One thought on “Terrorist Groups (Foreign Terrorist Organisations)

  1. Pingback: EU IMPLEMENTS UN AL-QAIDA SANCTIONS LISTINGS - European Sanctions

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