Annotation on the PMOI/OMPI rulings

The rulings in the People’s Mojahedin Organization of Iran (PMOI) cases annotated here are part of lengthy litigation brought by the PMOI in front of national and European courts in order to challenge national and European authorities’ decisions to include the organisation in the EU terrorist list and to freeze its assets at Community level. All courts which have heard the matter have declared the listing of the PMOI unlawful either because of serious procedural failures, or because of lack of evidence as to its current connection with terrorist activities. In relation to the EU list, the CFI had already declared in December 2006 that in including the applicants the Council had failed to respect their basic procedural rights. Following the first decision, and in order to comply with the CFI ruling, the Council sought to remedy these procedural failures, while maintaining the group on the list. As a result, the PMOI had to bring new proceedings to challenge new decisions that confirmed its inclusion in the list and the cases here annotated follow from these more recent challenges. In both rulings, the CFI annulled the Council decision as far as the applicant was concerned, albeit on different grounds. In the first case, the applicant had been included at the request of the British Government, while in the second case the applicant had been included at the request of the French Government. The PMOI saga unveils in considerable detail the deep flaws in the EU terrorist listing system. While the CFI’s approach had been very cautious in the first two cases, showing a substantial deference to Council’s decisions as to who should be defined as a terrorist, in the third, and – it is to be hoped – final, case the Court’s ruling seems to show impatience with the Council’s cavalier attitude to judicial protection and the rule of law. For the first time, the CFI indicates its willingness to carry out not only a review of the compliance with the procedural rights of those listed, but also of the compliance with the legal conditions required by the Community instruments, and to a certain extent of the substantive reasons that led to inclusion. These two cases are of paramount constitutional importance both in relation to the EU system of proscription and in relation to the constraints imposed on the Council in defining an individual or an organisation as involved in terrorist activity. And yet, and as we shall see in detail below, the problems are far from solved.