Thursday, September 29, 2011


This is fun: If Kadi and other victims of the UN Terror Watch List can get judicial review in EU courts, what about Vojislav Seselj? While I do not think that his 8,5 years of pretrial detention are excessive, it is interesting to speculate whether there would be any remedy if it were. Understandably, the ICTY and its prosecutor take the view that the tribunal is not bound by the ECHR (link, in Dutch), but then, so did the EU Council in Kadi. That did not stop the ECJ from ignoring the plain text of art. 103 UN Charter:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
Here, the conflict would not be with the EU Treaties, but with the European Convention for Human Rights. Now clearly, the ECHR is not a "basic constitutional charter" the way the EU Treaties are. (Kadi, par. 281) There is no question that the ECHR is an international agreement, even if one would like to fib about the question of whether the EU Treaties are.

However, that is not the end of the story. Because the Kadi judgment, it seems to me, reflects another underlying assumption. After all, even if the EU Treaties are so "constitutional" that they have established "a new legal order of international law" (Van Gend & Loos), that still does not change the fact that UN Security Council resolutions are presumptively binding on the EU and its Member States. At the EU level, however, there is a functioning system of judicial review. Kadi again:
285 It follows from all those considerations 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 Community 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 the Treaty.
Under Dutch law, however, treaties (including the UN Charter) trump the Constitution:
Article 94
Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.
(Despite the unfortunate translation of the term "wettelijke voorschriften", this provision applies to the Constitution itself as well. This follows from art. 91(3), which establishes an extra-difficult ratification procedure for treaties that conflict with the Constitution.)

So if Seselj brought the Dutch equivalent of a Habeas petition, the court would simply reply that his detention is lawful because it is pursuant to a Security Council resolution (Resolution 808, to be precise). Which leaves only one question: If this Dutch judgement were appealed until all national remedies were exhausted, and followed by an appeal to the ECtHR in Strasbourg, what would the Strasbourg court say? Would they be prepared to impose a damages award in these circumstances?

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