Yves Bot had a long career as a senior French prosecutor behind him when in 2006 he joined the European Court of Justice as an Advocate General. It has fallen to him to provide an advisory opinion in the seemingly interminable Kadi case, now winding its way back to the Court some five years after it first generated headlines, making the court (and a predecessor of Bot, Miguel Maduro) into near-celebrities in legal and human rights circles.
But why is Kadi going on and on?
The first decision in Kadi and Al Barakaat International Foundation v Council and Commission (on 3 September 2008) made such dramatic news because it as good as disapplied United Nations sanctions against suspected terrorists within the EU legal space. As Advocate General Bot puts it ‘[i]n essence, the Court held that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all EU acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by that Treaty’ [para 16].
So strong, the Court held back from immediate implementation of its ruling. A flurry of activity followed. Kadi was sent reasons why he was on the UN blacklist, he commented, and the Commission then issued a fresh regulation keeping him where he was but boasting in the recitals of how inclusive they had been in this new decision-making process. Its regulation was backdated to 2002 so as to provide no chink of light for Kadi so far as getting at his funds was concerned. In further correspondence the Commission said that the ECJ ruling did not require it to disclose any of the evidence underpinning the reasoning behind the blacklisting.
So Kadi I was great for all the human rights and civil liberties people – but not for Kadi.
Hence Kadi II.
When it got to it on 30 September 2010, the General Court rowed in behind Kadi (Case T-85/09  ECR II – 5177) finding for him and against the Commission’s unduly limited application (as that Court saw it) of Kadi I. Bot has now sought to cut him (and the General Court) comprehensively adrift. ‘Terrorism is a criminal activity which has a totalitarian inspiration, which denies the principle of individual freedom and whose aim is to seize political, economic and judicial powers in a given society in order to entrench there its underlying ideology’ – not a promising remark from Kadi’s point of view, and the first substantive sentence in the former prosecutor’s Opinion (at para 5). The Advocate General sets out to destroy the General Court’s reasoning and it has to be said does a very thorough job.
But significantly Bot does not accept that Kadi I should now be overturned (as the Council, Spain, Italy and Ireland had argued). Rather, the way Mr Kadi was dealt with second time round should be accepted as sufficient. The real issue was the ‘extent and the intensity of the judicial review’ with the General Court having insisted on way too much.
– These black lists came to the UN from national authorities who knew what they were doing far more than the European judges (para 69).
– The issue was not one amenable to extensive judicial review; it was ‘difficult to conceive of a more important and more complex policy area which involves assessments concerning the protection of international security’ (para 78).
– Things have improved markedly at the UN since Kadi I. There is an Ombudsperson who ‘performs her functions in complete independence and impartiality’, which – even though decisions are still taken by the UN Sanctions Committee – ‘can no longer be regarded as purely diplomatic and intergovernmental’ (para 82).
– If the Court of Justice insists on the evidence behind the reasons , there will be negative pushback from states which have been hard to get to this point of co-operation, and such action could therefore ‘prove to be counterproductive in balancing the fight against terrorism and the potential of the fundamental rights of listed persons’ (para 84).
Bot considers that the Court of Justice should presume all is in order so long as the proper procedures have been followed and the reasoning is not ‘manifestly inadequate or erroneous’ (para 89). The listed persons should be able to come up with new stuff as well if they have any, and the Court will look at it. But that should be that: ‘it is not part of the [Court’s] task to examine the evidence in support of the alleged conduct’ (para 105).
So which will the Court follow: Bot or (the spirit of) Maduro?
The General Court thought the line now followed by Bot would amount ‘not to effective judicial review of the kind required by the Court of Justice in Kadi but rather a simulacrum thereof’ (quoted at para 55 of Advocate General Bot). In other words, exactly the kind of legal move that I have identified in a recent book as characteristic of a newly emerging politico-legal phenomenon, the neo-democracy (Liberty and Security, Polity, February 2013).
Kadi himself was delisted on 5 October 2012.
Will his name live on as redolent of high constitutional principle or as another step on the road to an institutionalised second-division rule of law for those whose conduct incurs the enmities of national intelligence services?