Interview with Farzin Hashemi, member of the Foreign Affairs Committee of the NCRI
Question: Last December the Court of First Instance issued its judgment on the case of the PMOI v Council of European Union. What does the court exactly say?
Answer: In a landmark ruling the Court of First Instance of the European Communities annulled “in so far as it concerns the PMOI, Council Decision 2005/930/EC of 21 December 2005 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.” It simply means that the court concluded that Council decision to add PMOI to the list of groups and entities subjected to anti-terrorism restrictive measures of the EU was illegal.
The Court also ordered the Council to “bear its own cost and to pay four fifth of the PMOI’s cost”. This is a clear indication of the PMOI’s success in its appeal to the court.
What was the PMOI appeal based on?
In July 2002, the PMOI filed a petition with the Court of First Instance of the European Communities in Luxembourg, challenging its designation. In support of its claim for annulment of the contested decision, the PMOI made three pleas in law. The first plea comprised five parts, alleging infringement of the right to a fair hearing, infringement of essential procedural requirements, infringement of the right to effective judicial protection, infringement of the presumption of innocence and a manifest error of assessment. The second plea was based on infringement of the right to revolt against tyranny and oppression. The third was based on infringement of the principle of non-discrimination
On what basis the court ruled in favour of the PMOI?
The court reached the conclusion that, as pleaded by the PMOI, the Council Decision to include the organization in the list of terrorist organisations violated the fundamental rights and safeguards of the organisation, including “the right to a fair hearing, the obligation to state reasons and the right to effective judicial protection”.
The court further stated that “Not only has the applicant (PMOI) been unable effectively to make known its views to the Council but, in the absence of any statement, in the contested decision, (designation of the PMOI as a terrorist organisation) of the actual and specific grounds justifying that decision, it has not been placed in a position to avail itself of its right of action before the Court, given the aforementioned links between safeguarding the right to a fair hearing, the obligation to state reasons and the right to an effective legal remedy.” (Paragraph 165 of the judgment)
So, basically the court agreed with the PMOI on the first three arguments which it had raised. The violation of PMOI’s rights was so obvious that the court came to the conclusion that there is no need to consider other arguments which the PMOI had also made.
You said the Court annulled the Council Decision of December 2005, but that decision had already been repealed and updated by a new decision in May 2006. So, would the court decision also be extended to the Council Decision in May 2006?
Obviously, when the court heard the case on 7 February, the May decision did not exist. Thus the court could not rule on a decision which did not exist at the time. However, the court leaves no doubt that its decision should also be applied to any decision which may be adopted after its hearing on the same basis.
In practical term, a court proceeding in such cases always take several months if not years. In this particular issue the Council is bound to update its decision every six months. Therefore, almost at all time in the course of the court’s elaboration, the contested decision will be repealed and replaced by another one. And as the court can only consider the existing decision, , if we were to take the view that court decision can not be extended to the decision adopted after the court hearing, it means that the listed entity does not have an effective judicial remedy. Thus the court decision becomes almost irrelevant and ineffective so far as application of restrictive measures on the organisation is concerned.
The CFI in its judgment on OMPI v Council of Europe, while recognizing that it can not rule on a decision which does not exist make this point absolutely clear in its paragraph 28 where it says “It must be observed that, where a decision is, during the proceedings, replaced by another decision with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would not be in the interests of the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application to the Court. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a decision contained in an application to the Community judicature, to amend the contested decision or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later decision or of submitting supplementary pleadings directed against that decision.”
The Court also says in paragraph 35 of its judgment that “as acknowledged by the Council at the hearing, if the contested acts are annulled, it will be obliged to take the measures necessary to comply with that judgment, pursuant to Article 233 EC, which may involve its amending or withdrawing, as the case may be, any acts which have repealed and replaced the acts contested subsequent to the close of the oral procedure.”
Therefore, the EU should amend and/or withdraw the May 2006 Decision, which replaced the December 2005 Decision.
The Court, in its paragraph 35 of the judgment, made it absolutely clear that when a court annuls an act, “the act is eliminated retroactively from the legal order and is deemed never to have existed.” It simply means that right from the beginning in 2002 the decision regarding the PMOI was illegal. The May decision was an update of the previous decision which the court has annulled so far as the PMOI is concerns the PMOI.
What would you say to the assertion that the court decided on technical basis and that it is not a landmark ruling as you suggested?
The court decided on procedural basis because it came to the conclusion that the decision is totally in violation of community law that there is no need to get into the merit. However, the court made it very clear that the Council has provided no “statement of the actual and specific grounds justifying that decision”. The court further say that the council even failed to clarify which national competent authority made the decision regarding the PMOI. I should also add that in the course of the hearing the Council and the UK rejected the court request to provide any specific information justifying their decision in camera to the court. Therefore, basing the judgment on the violation of the fundamental rights of the PMOI does not take away the importance of the ruling.
Further more the court, as I said earlier, has ordered the Council to pay four fifth of its legal cost. Do you think the court has ordered the council to pay to an entity which it considered to be a “terrorist organisation”. The court has simply applied the principle of “presumption of innocence”. The PMOI designation was faulty and thus it is innocent unless proved otherwise. The Court described the PMOI as an organisation which was “founded in 1965 and set itself the objective of replacing the regime of the Shah of Iran, then the mullahs’ regime, by a democracy.”
