chapter  14
20 Pages

EU Counter-Terrorist Sanctions: The Questionable Success Story of Criminal Law in Disguise

European counter-terrorist sanctions (in the form of individual sanctions) have acquired a somewhat dubious reputation. Foremost, they have been criticized for breaching fundamental rights, in particular the right to judicial review. Indeed in their current form, they breach fundamental rights because neither those sanctioned nor the judiciary possesses the necessary information to ensure effective defence rights. This is the case irrespective of whether or not individual sanctions constitute criminal law. However, the question of whether or not EU sanctions fall within the category ‘criminal law’ does not amount to Begriffsjurisprudenz.2 The procedural protection of those listed and sanctioned depends on whether sanctions substantially amount to a criminal charge within the meaning of Article 6 of the European Convention on Human Rights (‘ECHR’). Furthermore, if counter-terrorist sanctions represent criminal law, rather than temporary emergency measures, they must withstand a different type of impact assessment than emergency measures.3 Emergency measures are not commonly subjected to elaborate efficiency assessments, considering both costs and benefits; however this becomes necessary when these measures turn into ordinary criminal sanctions of unlimited duration. In the case of counter-terrorism sanctions, the costs of adopting and enforcing them should be set against the benefits of containing terrorist activity.