The Volokh Conspiracy

L.S.,

A more interesting question came up (again) in last week's PMOI ruling in the Court of First Instance: Should the Council not have to prove its case beyond reasonable doubt? After all, what is really the difference between freezing someone's funds and a criminal punishment for being a terrorist? (par. 116-149) As far as I can see, the CFI never really answers that one.

martinedd: Are you suggesting that any time a list is drawn up of suspected violators of some piece of legislation then said list is a bill of attainder?

Here there is a general framework, adopted by the Council in 2001 in the form of a Regulation, in its capacity as Community legislator. This regulation was adopted under the consultation procedure, meaning that the other legislator, the Parliament, gave its opinion but was not allowed to amend the law or vote on it at all. Under article 2(3) of that Reg, the Council, acting by unanimity, establishes the list, in the form of a decision, like this one from December 2007.

So since the separation of powers at the Community level isn't necessarily very clear, the concept of a bill of attainder doesn't fit. But the reason why it is problematic, i.e. because it takes away the "defendant's" right to a fair trial, remains. In the procedure here, the defendant's assets stay frozen unless they go to the Community Courts in Luxemburg to challenge the Council's decision. Once there, the party that would normally be the defendant in a criminal trial becomes the plaintiff before the court, and accordingly carries at least some of the burden of proof.

From the aforementioned PMOI ruling:

134 It follows from the foregoing that, although it is indeed for the Council to prove that freezing of the funds of a person, group or entity is or remains legally justified, in the light of the relevant legislation, as the applicant rightly maintains, that burden of proof has a relatively limited scope in respect of the Community procedure for freezing funds (see, by analogy, OMPI, paragraph 1 above, paragraph 126, concerning the purpose of the rights of the defence in the same procedure). In the case of an initial decision to freeze funds, the burden of proof essentially relates to the existence of precise information or material in the relevant file which indicates that a decision by a national authority meeting the definition laid down in Article 1(4) of Common Position 2001/931 has been taken with regard to the person concerned. Furthermore, in the case of a subsequent decision to freeze funds, after review, the burden of proof essentially relates to whether the freezing of funds is still justified, having regard to all the relevant circumstances of the case and, most particularly, to the action taken upon that decision of the competent national authority.

martinned: Thanks for the clarification.