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EU court urged to lift LTTE ban; Advocate General cites procedural errors
View(s):An Advocate General of the European Court of Justice held this week that the Liberation Tigers of Tamil Eelam, along with Hamas, should be taken off the bloc’s terror list because of errors in the banning process.
Eleanor V E Sharpston, QC, has said in her opinion that the Council of the European Union could not rely on decisions of authorities of third States (in this case India and the UK, both of whom have proscribed the LTTE). The Council could also not rely on various new acts that had not been assessed and established by decisions of competent authorities, Advocate Sharpston held.
Elsewhere, she said she could not accept the logic underlying the Council’s argument that, “because no account can be taken of the more recent acts as documented in the press, it therefore follows that there has been no change in the factual situation and thus that the LTTE could be kept on the Article 2(3) list”.
Sri Lanka has not given enough information to the EU since 2011 to validate a continued ban on the LTTE, the Sunday Times learns. It was also observed that the incumbent Government does not have a clear policy on the LTTE. Despite the efforts of some diplomatic officers, the Ministry of Foreign Affairs has not updated Sri Lanka’s original set of dossiers submitted to the EU.
It was the killing of Lakshman Kadirgamar, the Foreign Minister, which galvanised the EU into listing the LTTE. But even up to now, that case is not closed. Also, Sri Lanka does not have enough concrete evidence, in keeping with the EU’s “high standards”, linking the LTTE to the many crimes it committed. The strongest case the EU has outside its territory is the Rajiv Gandhi case, which the Advocate General has felt was not up to her standards.
The Advocate General has now recommended an annulment of the Council’s listings insofar as those measures concerned the Tamil Tigers. She advised the Council to bear two-thirds of the costs of that the LTTE incurred in its appeal.
The EU imposed travel bans on the LTTE in 2005 and followed it with a listing in 2006. The group contested the proscription in 2011. Two years later, the General Court of the European Union annulled the proscription on procedural grounds. The Council of the European Union appealed its decision but Advocate Sharpston’s opinion is a further blow to those campaigning to keep the LTTE on the list of persons, groups and entities to who, for whose benefit, it is prohibited to provide financial services.
In 2015, the European Council relied on a new “statement of reasons” to keep the LTTE on the banned list. Arguing against the LTTE’s appeal, the Counsel for the EU Council said that the EU Council is not prepared to delist the LTTE on the basis that the factual situation on the ground has changed. He said the EU Council was of the view that the frozen funds cannot be released simply because it has no way of proving that the LTTE will restart its terrorist activities.
The Counsel said the LTTE had never renounced violence. Hence, the listing was based on prudence. He reminded the Court that the ruling of the General Court was on the listing of the LTTE between 2011 and 2014, and that the LTTE had not challenged the reviewed listing of 2015. He stated that the LTTE has skipped challenging the listing by the national authorities and come directly to the European Court. He stated that the EU Council cannot put the confidential report of intelligence agencies of national authorities in the “statement of reasons” and cited the Netherlands’ LTTE case as an example and emphasised that the Court must rely on listing by national authorities.
The Counsel for the LTTE maintained that there were no grounds to keep the group on the list as there were no substantiated reasons for continuing the listing.
The European Court will now consider the bans of both the LTTE and Hamas. Advocate Sharpston has also recommended a de-listing of Hamas. Even with the Israelis and Americans placing highest priorities on groups in the Middle East, those Governments have also failed in providing sufficient information to the EU to enable a continuation of the ban.
“It is more an EU interpretation of civil liberties and fundamental freedoms that are at stake here,” a diplomatic source said.