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 possess 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. 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. 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.

The aim of this chapter is twofold. It first aims to demonstrate that autonomous EU counter-terrorist sanctions constitute criminal law in substance and that they are in many ways built on, and interlinked with, national criminal law. They have far-reaching consequences not only for those sanctioned but also for the individuals and entities that are connected to them and interact with them. Second, the chapter addresses the efficiency of sanctions. It argues that because counter-terrorist sanctions have these far-reaching consequences, and have been in place for a long period of time without any termination clause, they must be evaluated from an efficiency perspective. So far this has not been undertaken. On the contrary, even the limited effectiveness assessments that have been conducted are flawed: they take into account the wrong indicators.