LONDON, Jan 24: A system of UN sanctions against suspected Al Qaeda and Taliban backers is facing a crisis as the likelihood grows that the top EU court will rule the bloc has violated basic rights by applying them.

In two cases in the space of just eight days, an EU legal adviser has recommended the Court of Justice of the 27-nation European Union should cancel financial sanctions against a Saudi businessman and a Swedish-based money transfer business.

If the court follows the advice from the EU's advocate general, as happens in most cases, it would shatter the argument of the EU Council and Commission that they must implement international law unquestioningly and without review, as handed down by the United Nations Security Council.

A collision between the two legal systems could jeopardise the implementation of UN sanctions by a major group of powerful countries. Apart from Britain, which has separate legislation, EU members would have to come up with new laws to give effect to the UN measures on their territory, without themselves falling foul of the European Court of Justice (ECJ).

A court ruling that the EU had breached people's fundamental rights by implementing the UN sanctions against them “would certainly undermine the regime”, said Richard Barrett, coordinator of the UN's Al Qaeda and Taliban monitoring team.

“I think that would cause huge upset and difficulties for all the member states of the EU that implement the (UN) sanctions through the EU regulation,” he said.

Established after the Sept 11 attacks in 2001, the UN blacklist covers 142 alleged Taliban individuals and 228 linked to Al Qaeda, as well as 112 business entities it says are connected with Osama bin Laden's network. Compliance is a major challenge for banks, which have to distinguish between listed people and those with similar or identical names.

Critics have long challenged the fairness of the system, saying it subjects people to harsh penalties — freezing their assets and preventing them from travelling — without giving them a court hearing or disclosing the evidence against them.

The list includes 12 people believed to be dead, and one acquitted of terrorism offences by a German court.

Cameron Doley, a British lawyer representing Saudi businessman Yassin Kadi in one of the cases before the ECJ, said his client had never received a clear statement of the allegations against him. He had filed his case in the EU because the UN had no equivalent tribunal to which he could appeal.

“What this gives us, we hope, is a statement by one of the most prominent and respected courts in the world that this system is an unjustified infringement of the fundamental human rights of those persons who are listed,” said Doley, who is managing partner at London-based law firm Carter-Ruck.

In his legal opinion on the Kadi case, EU Advocate General Poiares Maduro said the EU regulation freezing his assets had infringed his rights to property, a fair hearing and effective judicial review.

The absence of an independent tribunal meant there was a real possibility the Saudi had been subjected indefinitely to disproportionate or misdirected sanctions, he said.

“The Court has no way of knowing whether that is the case in reality, but the mere existence of that possibility is anathema in a society that respects the rule of law.”

Diplomats said Maduro's reasoning had caused surprise and consternation. “I'm not happy with it. I think the advocate general is wrong,” said one European diplomat who asked for anonymity because he is not authorised to speak on the record.

The idea the UN Security Council would accept a full judicial review of its decisions was “cloud cuckoo land”, the diplomat said.

He and others said it would be politically hard for European states to enact their own laws implementing UN sanctions if the EU's top court had ruled that process was unjust.

“It would, I think, be quite difficult for them to persuade their parliaments and persuade their people,” said the UN's Barrett.

He said the Security Council, anticipating a court challenge, had already improved its sanctions procedures and would continue to do so. New listings are scrutinised more closely, and reforms have made it easier for people to tell the Council if they think they have been wrongly targeted.

Diplomats said there was no sense of panic about the ECJ's ruling, expected later this year. But pressure is mounting.

The parliamentary assembly of the Council of Europe, the continent's top human rights watchdog, on Wednesday backed a report condemning the UN and EU sanctions regimes as undermining the credibility of the fight against terrorism.

People were blacklisted on the basis of “mere suspicion” said the report, which called the measures “deplorable and a violation of human rights and fundamental freedoms”.

—Reuters