Достъпът до правосъдие на лица и организации, предполагаемо свързани с тероризма
Access to Justice for Persons and Organisations Purportrdly Linked to Terrorism

Summary/Abstract: Public memory still remembers the flagrant violations of fundamental human rights in Guantбnamo and Abu Ghraib, two names that loom up as symbols of the abuses committed in the name of the fight against terrorism. If the terrorist threat should in no way be underestimated, could this be a good reason to turn our back to our modern society’s century-long evolution towards the rule of law based on the respect of civil rights and freedoms? In a series of widely debated landmark judgments — PKK, People’s Mojahedin Organization of Iran I and II, Kadi and Al Barakaat, to mention just a few — the European Court of Justice was called upon to determine the borderline between politics and law, national security and judicial control not only from the perspective of the duty to respect fundamental rights in the context of the fight against terrorism but also as far as the competence of the EC/EU to adopt and implement antiterrorist measures is concerned. More generally, their reach, albeit implicitly, goes beyond the EU, and touches upon the delicate grounds of the remedies available in the UN legal order. Given the underlying restraints of the attributed nature of the competence of the ECJ, the article approaches the question of access to justice from the practical perspective of the legal remedies that may be available to persons and organisation purportedly linked to terrorism under the applicable rules of the EC and the EU treaties. The (absence of) access to justice in the UN legal order, being an indispensable backdrop to any debate on fundamental rights and antiterrorist measures, is first looked at. The article then moves on to examine in more detail the conundrum surrounding the capacity of illegal organisations, deprived of legal personality, to challenge antiterrorist measures under the applicable rules governing direct actions in Community law. The question of judicial review of the common positions adopted by the Council under the EU treaty provisions, in particular the admissibility of an action to annul such a common position, or of an action for damages, stemming from such a position, or, lastly, the possibility of referring a preliminary question on its validity are all subject of a detailed scrutiny. The legal remedies available to challenge antiterrorist measures imposed by virtue of a regulation adopted under Community law are subsequently examined. Lastly, the article looks at the “overriding considerations to do with safety or the conduct of the international relations of the Community and of its Member States” which, according to the case law of the ECJ, may justify restrictions on access to justice.

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