Revisiting the Role of the EU Judiciary as the Stronghold for the Protection of Human Rights while Countering Terrorism

This article revisits the response of the European Union (EU) to the challenges posed by anti-terrorist smart sanctions regimes to fundamental rights, vis-à-vis recent legal developments. Following the Kadi saga, many authors defined the EU judicature as the bastion of the rule of law against executive powers. From the perspective of the Council of the EU, instead, Kadi caused a tremor. The EU courts did not only declare that anti-terrorist sanctions could be reviewed: they also affirmed that such review is in principle full, thus extended to all information substantiating sanctions, irrespective of whether covered by secrecy. In this respect, the European Court of Justice established that it is a task of the judiciary to accommodate security considerations militating against the disclosure of intelligence in court and the right to a fair trial. However, through legal instruments adopted in late 2016, the EU seems to be backing off from these settled principles. To test such assumption, the article proceeds in three steps. Firstly, it outlines the contours of the UN Security Council anti-terrorist sanctions regime, pinpointing the characteristics that make such regime problematic with respect to fair trial rights. Secondly, it surveys the development of EU courts' case-law on secret evidence. Thirdly, it investigates whether the new legal instruments adopted by EU institutions adhere to the principles enshrined in said EU courts' decisions, or rather represent a departure from consolidated due process rights