Information Note on the Court’s case-law 42

May 2002

Segi and Gestoras Pro-Amnistía and Others v. Germany, Autstria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Itay, Luxembourg, the Netherlands, Portugal, the United Kingdom and Sweden (dec.) - 6422/02 and 9916/02

Decision 23.5.2002 [Section III]

Article 34

Victim

Associations and spokespersons complaining of Common Positions adopted by the Counci l of the European Union in connection with the fight against terrorism: inadmissible

The applicants are two associations and their spokespersons.  The first association claims to be the Basque youth movement, while the other is a non-governmental organisat ion which defends human rights in the Basque country.  Central investigating court No. 5 of the Audiencia Nacional in Madrid ordered, as a preventive measure, the suspension of the activities of the two associations, the first because it was considered to be “an integral part of the ETA-EKIN Basque terrorist organisation”, and the second as an integral part of “the ETA Basque independence organisation”.  In December 2001, the Council of the European Union, within the framework of police and judicial co-oper ation in criminal matters among the fifteen member States, adopted Common Position 2001/930/CFSP on combating terrorism and Common Position 2001/931/CFSP on the application of specific measures to combat terrorism.  The latter applies to “groups and entiti es involved in terrorist acts”, as listed in an appendix.  The list includes the names of the two applicant associations, which are, according to the list, subject only to Article 4 of the common position.  In March 2002, referring inter alia to Common Pos ition 2001/931/CFSP, the central investigating court ordered the detention in custody of eleven leaders of SEGI, including one of the applicants, on a charge of terrorism-related activities punishable under the Spanish Criminal Code.

Inadmissible under Art icles 6, 6 § 2, 8, 10, 11 and 13, and Article 1 of Protocol No 1: The applicants consider themselves victims of a violation of these articles because of the two common positions adopted by the European Union.  The case-law of the organs of the Convention r elating to Article 34 concerns the domestic legislation of the States Parties to the Convention, but there are no major obstacles to its application to decisions from an international legal system such as that of the European Union.  As to the applicants’ status of direct or potential victim, it should be noted that the common positions come within the field of intergovernmental co-operation.  Common Position 2001/930/CFSP is not directly applicable in member States, and cannot serve as a direct basis for a ny criminal or administrative proceedings against individuals, especially as it makes no mention of any organisation or person.  As such, it does not therefore give rise to legally binding obligations for the applicants.  Article 4 of the second common pos ition is intended to strengthen judicial and police co-operation among the European Union’s member States in relation to the combating of terrorism, and may therefore imply concrete measures potentially affecting the applicants, especially in the context o f the inter-State police co-operation carried out through Europol.  Article 4 does not, however, add new powers which could be used against the applicants.  It is only for member States that it contains an obligation to co-operate, one which, as such, is n either addressed to individuals nor directly affects them.  What is more, any concrete measure adopted would be subject to the supervision of a national or international court.  This also applies more specifically to the measures which may give rise to cha llenges under Articles 10 and 11 of the Convention.  Nor do the applicants provide any evidence showing that they were subjected to specific implementing measures.  The mere fact that they appeared on the list as “groups and entities involved in terrorist acts” is far too tenuous a link to justify application of the Convention.  The reference concerned, in practice, which is restricted to Article 4 of the common position, is not equivalent to the committal for trial of the groups and entities concerned, and even less to the establishment of their guilt.  To sum up, the applicant associations are concerned only by the closer co-operation among member States on the basis of existing powers, and therefore have to be distinguished from the persons assumed to be genuinely involved in terrorism.  Furthermore, where the applicants who are individuals, are concerned, relying on Article 8 of the Convention, they do not appear on the list appended to Common Position 2001/931/CFSP.  In conclusion, the situation complain ed of does not confer on the applicant associations, nor a fortiori on their spokespersons, the status of victims of a violation of the Convention.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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