Another case in our series of articles about WikiLeaks documents used in a trial.

Published in UK  Human Right Blogs on January 30, 2013 by David Hart,  under the title: EU Court annuls EU freezing orders on Iranian bank – and Wikileaks again

Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 (read judgment)
In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment.  The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making.

The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court)  has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.(…)

What led to the making of the Order? The Bank made its view clear at [98], though this was not accepted by the Court. Diplomatic cables which had been Wikleaked showed that member states were subject to pressure from the US Government to ensure that these measures were adopted. This , said the Bank, cast doubt on the lawfulness of the measures and the procedures underlying them. The Court said it did not follow that the Council which adopted the measures was affected by any pressure exerted on member states (…)

 

read more here:  http://ukhumanrightsblog.com/2013/01/30/eu-court-annuls-eu-freezing-orders-on-iranian-bank-and-wikileaks-again/

 

This bank had its assets frozen by European Council, and subsequently by British authorities,  because it allegedly participated to the Iran’s efforts to develop nuclear sector, and brought an action on the Court of Justice of European Communities. (There are also lawsuits on UK courts still ongoing)

Among other arguments, the bank claimed that some Wikileaks cables showed that “European States, in particular the United Kingdom, were subject to pressure from the United States Government to ensure the adoption of restrictive measures against Iranian entities”.  The Council responded that “no account should be taken of the diplomatic cables”.

In this particular point, the Court decides that “the fact that some Member States were subject to diplomatic pressure, even if proved, does not imply, by itself, that such pressure affected the contested measures which were adopted by the Council or the assessment carried out by the Council when they were adopted. ” So this point is not accepted. However, the Council decision against the bank is annulled, because of other irregularities on the Council decision.

This decision is important, because, even if the Court has decided that it was not proved that the Council has taken its decision under the pressures released by WikiLeaks, the cables have been accepted and discussed by the court as a possible proof.

The Council wanted the Court to rule that a WikiLeaks cable is in all cases not relevant (“no account should be taken of the diplomatic cables”). At he contrary, the Court accepted to discuss the cables like a proof among others, even if in this case, they think that it doesn’t proof the pressure on the Council.

See judgement here (the part about the cables begin in line 98):   http://www.bailii.org/eu/cases/EUECJ/2013/T49610.html

 

(news picked up on twitter via  @AdamWagner1, thanks to him)

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Update: On February 5, 2013, the case of a second bank, the bank Saderat has been judged on the same way. The UK Human Right Blog explains:

Bank Saderat Iran v Council of the European Union, EU General Court, 5 February 2013 (read judgement).

Last week I posted on the Bank Mellatcase where an Iranian Bank succeeded in persuading the General Court to unfreeze its assets from orders made by EU institutions. The Bank Saderat case is virtually identical, and annulment was duly granted by the General Court. But it is troubling that the EU Council should go so wrong in wielding its draconian powers more than once. It does rather support the suspicions of the Bank (common to this and the Bank Mellat case) that pressure was brought to bear on the Council ultimately emanating from the US – hence the Wikileaks cables again – such that the EU did not robustly analyse the assertions made to them before making the orders. Basic errors were made again, and, as will emerge, the EU had no evidence for much of what it said.(…)

(Published on February 7, 2013 by David Hart under the title: Another Iranian bank released by the EU – Wikileaks here as well)

Read more here:  http://ukhumanrightsblog.com/2013/02/07/another-iranian-bank-released-by-the-eu-wikileaks-here-as-well/

Read the judgement here:  http://www.bailii.org/eu/cases/EUECJ/2013/T49410.html

The part about the cables is written in exactly the same terms than in the fist case. Line 92 of the judgement