Counter-terrorism and fundamental rights: judicial challenges and legislative changes after the rulings in Kadi and PMOI

Since the terrorist attacks perpetrated against the United States of America on the 11 September 2001, counter-terrorism strategy has been prominent in the Western political agenda. The novel nature of the threat, which is not linked to the achievement of a particular political aim against one particular regimet, made the perceived (and real) danger more urgent, so as to elevate it to a global (although predominantly western) emergency. As a result, there has been an increase in the counter-terrorism response both at national and at international level. As part of this response, both the UN and the EU adopted a number of measures aimed at enhancing the effectiveness of counter-terrorism policy by introducing an element of international and/or regional co-ordination. This contribution will focus on one type of these measures, the practice of drafting a list of individuals and organizations suspected of having links with terrorism. Those included in the list are subject to several ‘precautionary’ measures, amongst which the freezing of all of their assets. Both the UN and EU terrorist lists have been at the centre of much legal controversy and as a result of legal challenges significant changes were introduced to the original regimes. Those changes have improved the protection of those listed in these international instruments as well as introducing some transparency: and yet, from a fundamental rights viewpoint these measures are still highly problematic. In this contribution I will look at these issues; thus, after having given some background information, I will briefly recall the changes introduced in the UN own regime. I will then focus on the EU regimes (both the UN- derived and the EU-own) to conclude with an assessment of the fundamental rights compliance of the modified regimes.