EU Sanctions: Law and Policy Issues Concerning Restrictive Measures (Supranational Criminal Law: Capita Selecta 15)

EU Sanctions: Law and Policy Issues Concerning Restrictive Measures (Supranational Criminal Law: Capita Selecta 15)

By: Iain Cameron (editor)Paperback

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The famous "Kadi" cases have generated a wealth of articles dealing with the legal problems involved in EU implementation of UN Security Council sanctions. Less attention has been devoted to the numerous legal problems involved in the EU's own "autonomous" sanctions system. The subject is nevertheless topical since there is a growing use of sanctions and the legal basis for sanctions has been changed with the Lisbon treaty. EU sanctions are used both against regimes and suspected terrorist financing. But these sanctions have developed "organically", without sufficient thought being given to certain basic issues (inter alia concerning procedural fairness). This has resulted in considerable litigation before the Court of Justice (CJEU). The new legal basis and the recent judgments from the CJEU have solved some difficulties, but "taking sanctions seriously" means new problems for national implementation, spanning over a variety of areas: criminal law, constitutional law, international law and European law. The essays in this book, written by distinguished scholars in their respective fields, deal with some of these issues. How should we go about measuring the impact(s) of targeted sanctions? How coherent are these "administrative" measures of blacklisting with other existing and proposed EU measures in justice and home affairs promoting the criminal law model for dealing with the problem of terrorism (investigation, trial, conviction, punishment/confiscation of assets)? How can the problems caused for fair trial by the use of intelligence material be solved? If we can (or must) continue to have sanctions in the area of terrorist financing, can they be made compatible with fundamental principles of national criminal law and criminal policy? How does a system of "composite" decision-making (when the measure is partly national and partly at the EU level) avoid the risk that gaps arise in systems of legal protection? What is the spillover effect of "overbroad" quasi-criminal legislation directed at organizations, in the constitutional/human rights of freedom of expression and association? How do EU sanctions fit into, and compare to national systems for the proscription of terrorist organizations? Should the same legal safeguards be applicable both for "regime" sanctions and anti-terrorist sanctions?

About Author

Torbjorn Andersson Torbjorn Andersson is Dean of the Law Faculty at Uppsala University. He is Professor of civil and criminal procedural law and formerly Jean Monnet professor of EC law. His research areas are primarily Procedural Law, EU Law and Competition Law, in particular issues relating to the parallel and confl icting enforcement of law. Petter Asp Petter Asp is professor of criminal law at Stockholm university, Sweden, and holder of Ragnar and Torsten Soderberg Chair of Legal Science. His research has focused on international aspects of criminal law (EU criminal law, criminal jurisdiction, cooperation in criminal matters etc.) as well as on national criminal law (especially the general part of the criminal law and sentencing). He is a member of the European Criminal Policy Initiative which in late 2009 published a Manifesto on European Criminal Policy and is currently the head of a legislative committee with the task of reforming (parts of) the Swedish legislation on money laundering. Maria Bergstrom Maria Bergstrom is Associate Professor in European Law at Uppsala University. She was previously research fellow at Stockholm University. She defended her thesis at the European University Institute (EUI) in Florence in 2003. Her particular research interests are concerned with competence issues, changing boundaries and the interactive development of national and EU law, particularly within the fi elds of constitutional, administrative, penal and procedural law. She is currently conducting research on public-private cooperation and the EU functional notion of the state, the related accountability dilemma and antimoney laundering regulation. Her recent publications include "EU Anti-Money Laundering Regulation: Multilevel Cooperation of Public and Private Actors", in Eckes, C., and Konstadinides, T. (eds.) Crime within the Area of Freedom, Security and Justice: A European Public Order, CUP, 2011 and Bergstrom, M., Svedberg Helgesson, K, Morth, U., "A New Role for For-profi t Actors? The Case of Anti-Money Laundering and Risk Management", 49 Journal of Common Market Studies 1043 - 1064 (2011). Th omas Bull Th omas Bull is a judge in the Supreme Administrative Court. Prior to this he was Professor of constitutional law at Uppsala University. Amongst his publications are Regeringsformen - en kommentar (with Fredrik Sterzel) [the Instrument of Government - a commentary] 2010 and Motes- och demonstrationsfriheten. En statsrattslig studie av motes- och demonstrationsfrihetens innehall och granser i Sverige, Tyskland och USA: Freedom of Assembly, a public law study of the content and limits in the freedoms of assembly and demonstration in Sweden, Germany and the USA] 1997. Iain Cameron Iain Cameron is Professor in Public International Law at the University of Uppsala. His research interests lie in human rights, international criminal law and civil liberties. He holds an LLD and an LLM in International Law. He has published extensively in the fi elds of international law and constitutional law, particularly on international criminal law and human rights issues. He has investigated the issue of legal safeguards and targeted sanctions for the Swedish government (2002), the Council of Europe (2006) and the European Parliament (2008). Since 2006 he has been a member of the European Commission on Democracy through Law (Venice Commission). Christina Eckes Christina Eckes is associate professor in EU law at the University of Amsterdam and senior researcher at the Amsterdam Centre for European Law and Governance (ACELG). In 2012/2013, she is Emile Noel Fellow-in-Residence at New York University. Her current research project Outside-In: Tracing the Imprint of the European Union's External Actions on Its Constitutional Landscape is funded by the Netherlands Organisation for Scientifi c Research (NWO). She has widely published on EU external relations and EU counterterrorist sanctions, including a monograph entitled EU Counter-Terrorist Policies and Fundamental Rights - Th e Case of Individual Sanctions (Oxford University Press, 2009). Th omas Elholm Th omas Elholm is Professor of Criminal Law, University of Southern Denmark, Department of Law. He holds an LLM and a PhD in law from the University of Copenhagen. Since 2011 he is Chief Editor of the Scandinavian Journal of Criminal Law and Criminology. Mikael Eriksson Dr. Mikael Eriksson is a researcher at the Swedish Defence Research Agency. Before joining the agency he obtained his PhD at the European University Institute, Florence, Italy. He has also been involved in diff erent research project at the Department of Peace and Confl ict Research, Uppsala University to which he is an affi liated researcher. Eriksson's main research interests include critical security studies, targeted sanctions, and problems of liberal peace. He is particularly interested in the security dynamics of the Middle East and Africa. A book based on his doctoral dissertation, Targeting Peace: Understanding UN and EU targeted sanctions was published by Ashgate in 2011. Suus Hopman Suus Hopman is currently working as a LLD candidate at Uppsala University. Until recently she was a member of both the Dutch and Swedish bar associations. She worked as an attorney at Bohler Advocaten in Amsterdam; in that capacity she participated in EU-level and national criminal law procedures concerning blacklisting. Sofi a Marques da Silva Sofi a Marques da Silva is a doctoral researcher at King's College London. She graduated from the University of Durham LL.B and holds LL.M Degrees from Universidade Catolica Portuguesa de Lisboa and King's College London. She has worked as a research assistant and is now a research fellow at the Centre of European Law at King's College London. Sofi a's research interests are EU Security and Defence, Counter-Terrorism and EU Constitutional and Criminal law. Cian Murphy Dr Cian Murphy is Lecturer in Law at King's College London. Dr Murphy's fi rst monograph, EU Counter-Terrorism Law: Pre-emption & the Rule of Law was published in 2012 by Hart Publishing. He is also the co-editor of the forthcoming EU Security & Justice Law: Aft er Lisbon & Stockholm (2013 Hart Publishing). Dr Murphy's current research examines the eff ect of transnationalisation in counter-terrorism on constitutional principles across the world. In Spring 2013 he will be a Fulbright-Schumann Research Scholar at the Center on National Security & the Law at Georgetown University, Washington DC. Kimmo Nuotio Kimmo Nuotio is Professor of Criminal Law at the University of Helsinki and dean of the Faculty of Law. He is also the vice-director of the Centre of Excellence in Foundations of European Law and Polity funded by the Academy of Finland (2008 - 2013) and the director of the national doctoral programme in law "Law in a Changing World" coordinated by the University of Helsinki. He has broad research interests including the Th eoretical Foundations of Penal Liability, Modernization of Criminal Law, Nordic, European, and International Criminal Law, Transnational law, the Risk Society / Welfare State, Political Philosophy and Law, Legal Integration in Europe and Researcher Skills and Research Ethics. His latest publications include "European criminal law under the developing constitutional setting of the European Union", in Europe's constitutional mosaic, N. Walker, J. Shaw, S. Tierney (eds), Hart 2011, and "Th eories of Criminalisation and the Limits of Criminal Law: a Legal Cultural Approach" in Boundaries of Criminal Law, R.A. Duff , Lindsey Farmer, S.E. Marshall, V. Tadros, M. Renzo (eds) OUP 2010. Malin Th unberg Schunke Malin Th unberg Schunke is an Associate Professor in Criminal Law at the University of Uppsala. She holds an LLD in Criminal Law (Uppsala University) and an LLM in Criminology and Criminal Justice (King's College, London). Her research interests lie in national and international criminal law particularly EU judicial cooperation in criminal matters and human rights. She has been an Apprentice Judge at Stockholm City Court and has been working several years as an Assistant Prosecutor at the Prosecuting Offi ce Stockholm. Her more recent publications include, "En kodifi ering av tillrackliga rattssakerhetsgarantier for misstankta och tilltalade - Krav for ett fortsatt samarbete i brottmal inom EU?" in Festskrift till Suzanne Wennberg, Norstedts 2009, and International Criminal Law from a Swedish Perspective, Intersentia 2011 (joint author). Michel Uiterwaal Michel Uiterwaal is Advisor on Extractives, Human Rights and Confl ict at IKV Pax Christi, Utrecht, Th e Netherlan ds. Until recently, he was an attorney at Bohler Advocaten in Amsterdam; in that capacity he has participated in several national and EU-level procedures concerning blacklisting.

Contents

Preface About the authors Abbreviations Table of Cases Introduction Iain Cameron 1. Overview 2. Sanctions under international law 3. Sanctions under the UN Charter and the development of targeted sanctions 4. Purposes of sanctions and evaluating their effects 5. Development and legal bases of EU sanctions prior to the Lisbon Treaty 6. Personal reflections on the Kadi/al-Barakaat case and subsequent developments 7. The EU's autonomous anti-terrorist sanctions and the PMOI standards of review 8. Composite decision-making, secrecy and the scope of review 9. Criminal Law, criminal procedure and the autonomous anti-terrorist sanctions 10. Compensation 11. Application of the safeguards to regime sanctions 12. Legal bases for, and coherence of, EU sanctions after the Lisbon Treaty 13. Post-Lisbon Internal Procedures for the adoption of EU sanctions 14. Coherence in sanctions policy On Assessing Targeted Sanctions Black lists Mikael Eriksson 1. Introduction 1.1. Why study sanctions assessment? 2. Targeted sanctions: an overview 2.1. What are targeted sanctions? 2.2. Twenty years of targeted sanctions practice 2.3. The classical principle of sanctions 2.4. Historic turns in the sanctions literature 2.5. The interest in sanctions assessment 2.6. An alternative reading on the practice of targeted sanctions 3. Enduring challenges to sanctions assessments efforts 3.1. Intentionality 3.2. Collective action and free-rider problems 3.3. Unpredictability 3.4. The thief-and-police pastime 3.5. Erudition 3.6. The technical and functionalist approach to social dilemmas 3.7. Symbolic and non-symbolic reference objects 3.8. Compartmentalisation and perceptions 3.9. The before and after conundrum 3.10. Liberal goals but illiberal means 3.11. Summary 4. Final reflections Developing Multiple EU Personalities: Ten Years of Black listing and Mutual Trust Torbjorn Andersson 1. EU and Mutual Trust 2. The EU and Blacklisting 3. The Cases 3.1. Internal Blacklisting - Case Law 3.1.1. The First PMOI Case 3.1.2. The Second PMOI Case 3.1.3. Th e Third PMOI Case 3.2. External Blacklisting 3.2.1. KADI I - the Court of First Instance 3.2.2. Kadi I - ECJ 3.2.3. Kadi II 4. Developing Multiple Personalities? The Place of Sanctions in the EU System for Combating the Financing of Terrorism Maria Bergstrom 1. Introduction 2. The EU System for Combating the Financing of Terrorism - An Overview 2.1. Background 2.2. Financial Freezing Measures 2.3. Anti-Money Laundering Measures 2.3.1. Money Laundering: beginnings 2.3.2. Financial Action Task Force on Money Laundering 2.3.3. Anti-Money Laundering and the European Single Market 2.3.4. Revising the FAFT Recommendations towards Fighting Organised Crime 2.3.5. Revising the FATF Recommendations towards Combating the Financing of Terrorism 2.3.6. Reflections on the Legal Basis 3. Security, Securitisation and Risk-Management 3.1. A Chameleon Threat? 3.2. Security, Securitisation and Risk-Management 3.3. Some Reflections on Money Laundering and Securitisation 4. The Coherence of Applying AML Tactics in Terrorist Sanctions How, if at all, do Anti-Terrorist Black listing Sanctions fit into (EU) Criminal Law? Kimmo Nuotio 1. Criminal law beyond the state: Introduction 2. Blacklisting as criminal law? 3. Blacklisting, prohibiting: freedom of association? 4. Blacklisting as a ground for prosecution and conviction? 5. The European criminal law, then? Blacklisting Sanctions and Principles of Criminal Law Petter Asp EU Black listing Sanctions - A Danish Criminal Law Perspective Thomas Elholm 1. Introduction 2. Legislation 3. The case law 3.1. Case 1: Seizure of documents (U 2007.1831 H) 3.2. Case 2: The Hamas case (Copenhagen City Court judgment of 27 March 2007 and High Court judgment of 6 February - unpublished) 3.3. Case 3: Fighters and Lovers case (U 2009.1453 H) Intersentia 3.4. Case 4: The internet appeal case (Copenhagen City Court, 15 March 2010) 3.5. Case 5: 2011 case (Copenhagen City Court, 16 June 2011 - unpublished) 3.6. Conclusions regarding the case law 4. Discussion 4.1. The prosecutorial level 4.2. The Judicial level Procedural Safeguards for Black listing Sanctions - A Comparison with the EU Framework Decision on Orders Freezing Property or Evidence Malin Thunberg Schunke 1. Introduction 2. The FD on Freezing Orders 3. The term "freezing" 4. Procedural safeguards and legal remedies 4.1. The decision to freeze assets 4.2. The right to challenge a freezing order 4.3. The duration of a freezing measure 5. Conclusions Sanctions Against Terrorism and their Impact on Freedom of Expression Thomas Bull 1. Introduction 2. Criminalization as a constitutional problem for free speech per se 3. Criminalization as a practical issue of institutional competence 4. Criminalization as a problem for the media and its constitutional role 5. Conclusion Decision-making in the Dark? Autonomous EU Sanctions and National Classifi cation Christina Eckes 1. Introduction 2. Adopting Autonomous EU Sanctions in Secret? 2.1. Information Flow Under the Adoption Procedure 2.2. Failure to Disclose Relevant Information 3. Can Secrecy Remain a National Choice? 3.1. Implications of National Classification 3.2. ORCON, Authorship Rule, or? 3.3. How Much Secrecy Is Needed? 4. Secret Information in Courts: Lessons That Could Be Taken from National Law 5. Conclusions Proscription of Organisations in UK Counter-Terrorism Law Sofia Marques da Silva and Cian C. Murphy 1. Introduction: A Parody of Law 2. The Logic of Proscription 3. The Process of Designation 4. The Impact of the Proscription System 4.1. Prosecution of Suspects 4.2. Deterrence and Disruption 4.3. Proscription and International Diplomacy 4.4. Societal Impact 5. Systems of Review and Delisting 5.1. Administrative Review 5.2. Proscribed Organisations Appeal Commission & Judicial Review 5.3. Problems with Deproscription 6. Proscription & the post-September 11 Landscape 7. Reform of Systems of Review 8. Conclusion: Beyond the Parody of Pre-emption The Implementation of EU Terrorism Blacklisting Sanctions in the Dutch National Legal System Suus Hopman and Michel Uiterwaal 1. Introduction 2. Sanctions in Administrative law 2.1. Sanctions Act 1977 2.2. New system, old style 2.3. Al-Aqsa 2.4. New system, new style 2.5. More recent cases 3. Criminal law 3.1. Generally 3.2. Criminal terrorist organisations 3.3. Continued activities of a proscribed organisation Intersentia 3.4. Offence against the Sanctions Act 1977 3.5. Tamil Court Case 4. Conclusion Bibliography Index

Product Details

  • ISBN13: 9781780681412
  • Format: Paperback
  • Number Of Pages: 282
  • ID: 9781780681412
  • weight: 400
  • ISBN10: 1780681410

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