3legal status of associations should be incriminated on account of the misdeeds of some of their partymembers!
(B) In That the Council Decision Refers to “Decisions” Taken by French Authorities thatLack Judicial Independence
6. I submit that one should not pass over in silence other deficiencies of the Council decision. One,which could be regarded as minor but nevertheless stands out as a considerable flaw, is as follows.7. Under Council Common Position 2001/931/CFSP of 27 December 2001 the freezing of assetsbelonging to a person or a group suspected of terrorism may be made on the basis of a “decision”taken by a national “competent authority”, that is a “judicial authority” or “an equivalent competentauthority in that area” (Article 1(4)).8. Clearly, by “judicial authority” is meant any state body that is independent of the executivepower and in addition exhibits the other hallmarks of judicial organs, namely impartiality andrespect for due process principles (
audiatur et altera pars
). This is the notion of “tribunal”consistently upheld by the European Court of Human Rights: in
(judgmentof 29 April 1988, §64), the Court held that "a ‘tribunal’ is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on thebasis of rules of law and after proceedings conducted in a prescribed manner ... It must also satisfy aseries of further requirements - independence, in particular of the executive; impartiality; durationof its members’ terms of office; guarantees afforded by its procedure - several of which appear inthe text of Article 6 para. 1 itself". This notion had already been propounded in, among many othercases, in
Le Compte, Van Leuven and De Meyere
(judgment of 23 June 1981,
§ 55) and
(22 October 1984, § 36) as well as in
Lithgow and others
(judgment of 8 July 1986, § 201). It was restated in
(judgment of 27 August1991, § 39). Interestingly in
the Court pointed out that “for the purposesof Article 6 para. 1 a tribunal need not be a court of law integrated within the standard judicialmachinery. It may, like the Board at issue, be set up to deal with a specific subject matter whichcan be appropriately administered outside the ordinary court system. What is important to ensurecompliance with Article 6 para. 1 are the guarantees, both substantive and procedural, which are inplace” (judgment of 1 July 1997, § 45). In
van der Hurk
the Court held that “thepower to give a binding decision which may not be altered by a non-judicial authority to thedetriment of an individual party is inherent in the very notion of a ‘tribunal’ ” (judgment of 19 April1994, §45).9. The expression “equivalent competent authority” clearly must encompass any state body that,even though devoid of some basic judicial features (such as those relating to the mode of appointment of members of the body, the length of their mandate, and so on), shows at a minimumtwo requirements: (i) the ability to make evaluations independently of the executive power, i.e.without being bound by instructions of the executive; and (ii) respect for due process principles,namely the ability to undertake an appraisal of the factual elements and the relevant evidenceconcerning the subject-matter in dispute on the basis of a fair and adversarial evaluation of theviews of the contending parties (or of all the parties concerned). Thus this notion may embrace, forexample, an administrative body of inquiry, or a quasi-judicial monitoring body or any othersupervisory institution that is not part of the judiciary. Nevertheless, what matters is that the bodyshould exhibit the two features I have mentioned.