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A. Draft
resolution
(open)
Report | Doc. 12712 | 16 September 2011
Human rights and the fight against terrorism
Committee on Legal Affairs and Human Rights
Summary
Terrorism has a direct impact on human rights. It can destabilise and undermine entire societies, jeopardise peace and security and threaten social and economic development. Terrorism attacks the pillars of democracy and the rule of law upon which the respect of human rights is based.
States must be in a position to take appropriate measures to fight terrorism. However, there is no need for a trade-off between human rights and effective counterterrorist action, as safeguards exist in human rights law itself. The European Convention on Human Rights, like other international human rights instruments, can be applied in such a way as to allow states to take reasonable and proportionate action to defend democracy and the rule of law against the threat of terrorism.
The report’s aim being to add an incremental contribution to the ongoing quest for protecting human rights when it comes to countering terrorism, it presents an overview of the Council of Europe standards applicable to human rights in the fight against terrorism and deals with selected human rights concerns in this context.
Terrorists are criminals and should be dealt with primarily by the criminal justice system, with in-built and well-tested safeguards to protect the innocent. Coercive administrative measures for preventive purposes should be of limited duration, only applied as a last resort and be subject to strict conditions, including minimum requirements regarding evidence and judicial or appropriate political oversight.
A. Draft
resolution 
(open)1. Terrorism has a direct impact on human rights, with
consequences for the enjoyment of the right to life, liberty and
physical integrity of individuals, especially victims of terrorism.
It can destabilise and undermine entire societies, jeopardise peace
and security and threaten social and economic development. It seeks
to impose upon the majority the views of a minority and stops at
nothing in the pursuit of its aims. Terrorism attacks the pillars
of democracy and the rule of law upon which the respect of human
rights is based.
2. States must be in a position to take appropriate measures
to fight terrorism. There is no need for a "trade-off" between human
rights and effective counter-terrorist action, as safeguards exist
in human rights law itself. The European Convention on Human Rights
(ETS No. 5, “the Convention”), like other international human rights
instruments, can be applied in such a way as to allow states to
take reasonable and proportionate action to defend democracy and
the rule of law against the threat of terrorism.
3. The concept of “war on terror” is misleading and unhelpful.
Terrorists are criminals, not soldiers, and terrorist crimes do
not amount to acts of war.
4. There is a danger that temporary measures to combat terrorism,
even if considered necessary at the time of their introduction,
become permanent even when circumstances have changed. The need
for any restrictions placed on individual freedoms must be assessed
continuously as long as the restrictions remain in place.
5. States Parties to the European Convention on Human Rights
and its protocols are duty-bound to secure within their jurisdiction
the rights and freedoms guaranteed therein:
5.1. In particular, they shall ensure that no exception whatsoever
is made to the non-derogable rights to life and to the prohibition
of torture. This includes respecting the principle of non-refoulement, in particular when
the European Court of Human Rights has indicated an interim measure
under Article 39 of its Rules of Court, and treating diplomatic
assurances with utmost caution.
5.2. As for derogable rights under the Convention, any limitation
must be strictly necessary to protect the public and be proportionate
to the legitimate aim pursued, in line with the case law of the
Court. In particular, administrative detention should be limited
to rare exceptions and subject to appropriate control. Surveillance,
interception and related measures must be available to the state,
but be clearly circumscribed by law and subject to judicial or appropriate
political supervision.
5.3. Measures limiting human rights must be phrased clearly
and interpreted narrowly, in particular when criminal liability
is involved, and must be accompanied by adequate judicial or political
review.
6. As terrorists are criminals, the Parliamentary Assembly considers
that they should be dealt with primarily by the criminal justice
system, with its in-built and well-tested safeguards to protect
the innocent. Coercive administrative measures for preventive purposes
should be of limited duration, be only applied as a last resort and
be subject to strict conditions, including minimum requirements
regarding evidence and judicial or appropriate political oversight.
B. Explanatory memorandum by Lord Tomlinson, rapporteur
(open)1. Procedure to date
1. On 6 October 2009, the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights, for
report, the motion for a resolution “Human rights and fight against
terrorism”. At
its meeting on 16 November 2009, the committee appointed me as its
rapporteur.
At
its meeting on 16 November 2009, the committee appointed me as its
rapporteur. 2. On 17 November 2010, in order to gain an overview of the legislative
and administrative situation in several member states, where the
topic of human rights and the fight against terrorism is high on
the legal and political agenda, the committee held an exchange of
views with
the following experts:
with
the following experts:
- – Mr Álvaro Gil-Robles, former Commissioner for Human Rights of the Council of Europe, former People’s Defender, Spain,
- Ms Julia Hall, Amnesty International, expert on Counter-Terrorism and Human Rights, London,
- Mr Vladimir Lukin, Ombudsman of the Russian Federation, Moscow,
- Ms Ekaterina Sokirianskaya, Hot Spots Program, Memorial Human Rights Centre, St Petersburg,
- Mr Timothy Otty QC, Barrister-at-Law, London.
3. On 25 March 2011, I met Mr Gilles de Kerchove, European Union
Counter-terrorism Coordinator, in Brussels in order to gain a more
complete picture of European Union policy in the area of counterterrorism
and to discuss a number of issues related to this report.
2. Introduction
4. Terrorism, however it is defined, has a direct impact
on human rights, with consequences for the enjoyment of the right
to life, liberty and the physical integrity of victims. In addition
to these individual costs, terrorism can destabilise and undermine
societies, jeopardise peace and security and threaten social and economic
development. This too has an impact on the enjoyment of human rights.
5. Terrorism seeks to impose upon the majority the views of a
minority and stops at nothing in pursuit of its aims. It
attacks the pillars of democracy and the rule of law upon which
human rights structures rest.
It
attacks the pillars of democracy and the rule of law upon which
human rights structures rest. 6. States must be in a position to fight terrorism by taking
appropriate measures. Human rights law, while obliging states not
to overstep certain boundaries, can accommodate that need.
7. The relationship between human rights and terrorism is inherent
in the subject matter of terrorism and is not new. A number of international
organisations and bodies closely follow this issue. Two recent studies
seem to me to be of particular relevance.
8. First, a report entitled “Assessing Damage, Urging Action”
of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and
Human Rights, commissioned
at the initiative of the International Commission of Jurists (ICJ).
This independent body published its report in 2009, following a
three-year, worldwide investigation into the impact of counterterrorism
laws and practices on human rights, during which 16 hearings were
held, covering 40 countries in all regions of the world. It was
found that in the formulation and implementation of counterterrorism
policies, established principles of international human rights and humanitarian
law were being questioned and at times ignored.
commissioned
at the initiative of the International Commission of Jurists (ICJ).
This independent body published its report in 2009, following a
three-year, worldwide investigation into the impact of counterterrorism
laws and practices on human rights, during which 16 hearings were
held, covering 40 countries in all regions of the world. It was
found that in the formulation and implementation of counterterrorism
policies, established principles of international human rights and humanitarian
law were being questioned and at times ignored. 9. Secondly, a report on counter-terrorism measures and human
rights, adopted by the European Commission for Democracy through
Law (Venice Commission) on 4 June 2010, prepared
at the request of the Parliamentary Assembly. This report deals,
in a more general way, with the most recurrent issues that have arisen
on a national level. It does not include an analysis of individual
laws at the member state level.
prepared
at the request of the Parliamentary Assembly. This report deals,
in a more general way, with the most recurrent issues that have arisen
on a national level. It does not include an analysis of individual
laws at the member state level. 10. Mention should also be made of a briefing paper, issued in
2010, of the policy department of the Directorate General for external
policies of the European Parliament on “Current challenges regarding
respect of human rights in the fight against terrorism”.
11. It is not the purpose of this report to repeat or summarise
studies which have recently been carried out on the subject. Rather,
the report starts from the assumption that, since the European Convention
of Human Rights (ETS No. 5, “the Convention”) permits some temporary
and proportionate restrictions or suspension of specific rights,
it is sufficiently adaptable to counter any current or future threats.
12. I shall start by giving an overview of the Council of Europe
standards applicable to human rights in the fight against terrorism.
I shall then briefly portray European Union and United Nations action
on the matter. Pursuant to this, I shall turn to selected human
rights concerns in the fight against terrorism.
13. The aim of this report is therefore to add an incremental
contribution to the ongoing quest for protecting human rights when
it comes to countering terrorism. In the knowledge that it is impossible
to draw a complete picture of the state of play regarding human
rights and terrorism in Europe, I shall point to selected examples of
human rights concerns, under the heading of the most pertinent articles
of the Convention.
3. Council of Europe reference texts
3.1. Conventions
14. The Council of Europe has set a number of standards
for the relationship between human rights and terrorism. These
standards have then been applied and interpreted by the various
organs of our Organisation.
These
standards have then been applied and interpreted by the various
organs of our Organisation. 15. The European Convention on Human Rights and its protocols,
as interpreted by the European Court of Human Rights (“the Court”),
are the main standard of reference, also for this report. Indeed,
over the past fifty years, the Court has been called upon to rule
on cases involving terrorism on numerous occasions. Case law of
the Court stretches back to a time when terrorism was not yet a
global phenomenon and had not yet entered the world stage in the
sense that it was more or less confined to individual states or
regions. Early
case law of the Court mainly dealt with phenomena arising in Germany,
Ireland, Spain, Turkey and the United Kingdom.
Early
case law of the Court mainly dealt with phenomena arising in Germany,
Ireland, Spain, Turkey and the United Kingdom. 16. More recently, the Council of Europe has adopted a number
of conventions addressing specifically the issue of terrorism. These
new texts supplement earlier texts such as the 1957 European Convention
on Extradition (ETS No. 24) and the 1983 Convention on the Compensation
of Victims of Violent Crimes (ETS No. 116).
17. The Council of Europe Convention on the Prevention of Terrorism
(ETS No. 196), which entered into force on 1 June 2007, aims to
prevent terrorism by measures taken at national level and through
international co-operation. It establishes as criminal offences
acts such as public provocation, recruitment and training, which
may lead to the commission of acts of terrorism. It reinforces co-operation
on prevention, both at domestic level, in the context of national
prevention policies, and internationally by supplementing and, where necessary,
modifying existing extradition and mutual assistance arrangements.
The convention ensures the protection and compensation of victims
of terrorism. Furthermore it contains several provisions concerning
the protection of human rights and fundamental freedoms, in terms
of both reinforcing co-operation at national and international levels
(including grounds for refusal of extradition and mutual assistance)
and implementing the criminalisation of new offences in the form
of conditions and safeguards.
18. Article 12, paragraph 2, of the convention requires each party
to apply the principle of proportionality in accordance with the
relevant principles of its domestic laws. For the member states
of the Council of Europe, this means the principles of the European
Convention on Human Rights, as interpreted by the European Court of
Human Rights.
19. The Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and on the Financing
of Terrorism (CETS No. 198) is the first international treaty to
cover both preventive measures and the combating of money laundering
and the financing of terrorism. This convention, which entered into
force on 1 May 2008, updates and expands on the 1990 Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime (ETS No. 141) to take into account the need to deprive terrorists
and other criminal groups of their assets and funds as the key to
successful preventive and repressive measures and, ultimately, to
disrupting their activities. In order to prevent and combat money
laundering and the financing of terrorism more effectively, the
convention facilitates the rapid tracing of property or bank accounts
and the rapid freezing of funds, quick access to financial information
or information on assets held by criminal organisations, the setting-up
of financial intelligence units in each state party to exchange
information on suspected cases of money laundering and terrorist
financing in order ultimately to confiscate assets.
20. The 1977 European Convention on the Suppression of Terrorism
(ETS No. 90) is designed to facilitate the extradition of terrorists
by listing offences (namely acts of particular gravity, hijacking
of aircraft, kidnapping and taking of hostages, etc.) which should
not be considered as political offences. It expressly provides that nothing
in the convention shall be interpreted as imposing an obligation
upon a party to extradite a person who might then be prosecuted
or punished solely on the grounds of race, religion, nationality
or political opinion. The 2003 Protocol amending this Convention
(ETS No. 190) introduces the following significant changes: a substantial
extension of the list of offences which may never be regarded as
political or politically motivated, to include all offences covered
by the United Nations anti-terrorist conventions; the introduction
of a simplified amendment procedure allowing new offences to be
added to the list; the opening of the convention to observer states
and, subject to a Committee of Ministers decision, to other non-member
states; the refusal to extradite offenders to countries where they
risk the death penalty, torture or life imprisonment without parole;
a significant reduction in the possibility of refusing extradition
on the basis of reservations to the convention with the implementation
of a specific follow-up procedure applicable to such refusals and
to the follow-up of any obligation under the convention as amended.
21. The 1987 European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (ETS No. 126) should
also be mentioned at this point. As interpreted by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Punishment (CPT), it has contributed to the general establishment
of a legal framework for the fight against terrorism.
3.2. Assembly reports
22. The relationship between human rights and terrorism
has on numerous occasions been raised and discussed in the Assembly,
mostly on the basis of reports of the Committee on Legal Affairs
and Human Rights. In
recent years, the Assembly has taken position on the issue, reiterating
that terrorism can and must be combated effectively by means that
fully respect human rights and the rule of law. The Assembly has
thus unveiled and denounced the existence of secret detentions and
illegal transfers (“renditions”) involving Council of Europe member
states, questioned the fairness of “blacklisting” terrorism suspects
by the United Nations Security Council and the Council of the European
Union, called for the need to eradicate impunity, including in the
North Caucasus Region, criticised some aspects of the United States’
“war on terror” and examined the protection of human rights in emergency
situations.
In
recent years, the Assembly has taken position on the issue, reiterating
that terrorism can and must be combated effectively by means that
fully respect human rights and the rule of law. The Assembly has
thus unveiled and denounced the existence of secret detentions and
illegal transfers (“renditions”) involving Council of Europe member
states, questioned the fairness of “blacklisting” terrorism suspects
by the United Nations Security Council and the Council of the European
Union, called for the need to eradicate impunity, including in the
North Caucasus Region, criticised some aspects of the United States’
“war on terror” and examined the protection of human rights in emergency
situations. 23. In addition to this, the Committee on Legal Affairs and Human
rights has also prepared a report on the abuse of state secrecy
and national security: obstacles to parliamentary and judicial scrutiny
of human rights violations. That
report, which addresses some of the legal and policy issues which
the rapporteur, Mr Dick Marty, encountered in the course of preparing
his reports on renditions and secret detentions, focuses primarily
on the question of accountability for human rights violations committed
by members of special services.
That
report, which addresses some of the legal and policy issues which
the rapporteur, Mr Dick Marty, encountered in the course of preparing
his reports on renditions and secret detentions, focuses primarily
on the question of accountability for human rights violations committed
by members of special services. 24. Back in 2006, our former colleague, Mr Valery Grebennikov
(Russian Federation, EDG) presented an introductory memorandum to
the Committee on Legal Affairs on Human Rights on the topic of this
report. The
Assembly never adopted a resolution or a recommendation as Mr Grebennikov’s
mandate expired before a draft report could be submitted to the
committee.
The
Assembly never adopted a resolution or a recommendation as Mr Grebennikov’s
mandate expired before a draft report could be submitted to the
committee. 25. The Assembly’s work on the matter, however, goes further back
in time. Even before 11 September 2001, the Assembly had voiced
its concern about the threat posed by international terrorism, and
in the immediate aftermath of the New York attacks, the Assembly,
on 26 September 2001, underlined that “introducing additional restrictions
on freedom of movement, including more hurdles for migration and
for access to asylum, would be an absolutely inappropriate response
to the rise of terrorism”. The Assembly called on all member states
“to refrain from introducing such restrictive measures”.
3.3. Other forms of Council of Europe “soft law”
26. In addition to these conventions, there are other
important initiatives, such as the Guidelines adopted by the Committee
of Ministers on Human rights and the fight against terrorism (2002) and
on the Protection of Victims of Terrorist Acts (2005), which
confirm the established case law of the European Court of Human Rights
and lay down key standards for counterterrorism policies in Europe.
and
on the Protection of Victims of Terrorist Acts (2005), which
confirm the established case law of the European Court of Human Rights
and lay down key standards for counterterrorism policies in Europe. 27. The European Commission against Racism and Intolerance (ECRI),
for its part, has adopted General Policy Recommendations No. 8 on
combating racism while fighting terrorism (2004) and
No. 11 on combating racism and racial discrimination in policing.
and
No. 11 on combating racism and racial discrimination in policing. 28. Finally, the Committee of Experts on Terrorism (CODEXTER)
has drawn up and regularly updates country profiles on counter-terrorism
capacity.
29. The body of law just described shows that the Council of Europe
is at the forefront of standard setting in the domain of human rights
and terrorism, as concerns both binding and “soft-law” measures.
It is telling that the late Tom Bingham, in his seminal work on
“The Rule of Law”, concludes the chapter “Terrorism and the rule of
law” with a reference to the 2002 Committee of Ministers Guidelines
on human rights and the fight against terrorism.
4. Developments in other international fora
4.1. European Union
30. In line with the gradual widening of its competences,
the European Union has in recent years also become active in the
domain of counterterrorism.
31. On the political side, a counterterrorism strategy was
adopted in 2005, evolving around the four main objectives of prevention,
protection, pursuit and response. To this end, a Counter-terrorism
co-ordinator has been appointed within the structure of the Council
of the European Union. His task is to co-ordinate the work of the
Council of the European Union in the field of counterterrorism,
maintain an overview of all the instruments at the Union's disposal,
monitor the implementation of the European Union counterterrorism
strategy, foster better communication between the European Union
and third countries and ensure that the Union plays an active role
in the fight against terrorism.
was
adopted in 2005, evolving around the four main objectives of prevention,
protection, pursuit and response. To this end, a Counter-terrorism
co-ordinator has been appointed within the structure of the Council
of the European Union. His task is to co-ordinate the work of the
Council of the European Union in the field of counterterrorism,
maintain an overview of all the instruments at the Union's disposal,
monitor the implementation of the European Union counterterrorism
strategy, foster better communication between the European Union
and third countries and ensure that the Union plays an active role
in the fight against terrorism. 32. As far as legislation is concerned, the European Union has
adopted a considerable array of measures specifically in the domain
of terrorism or
being otherwise relevant for
counterterrorism policy. Space precludes a full appraisal of these
measures. Of special interest in the context of this report is the
EU regime regarding data protection and retention.
or
being otherwise relevant for
counterterrorism policy. Space precludes a full appraisal of these
measures. Of special interest in the context of this report is the
EU regime regarding data protection and retention. 33. The latest instrument proposed by the European Commission
is a European terrorist finance tracking system, allowing
the European Union to stop transferring bulk data to the United
States for anti-terrorism purposes by establishing a legal and technical
framework for extraction of data on EU territory. Although this proposal
is still in its early stages and only outlines different possible
options, it has been criticised by a number of MEPs for being too
costly. The European
Parliament's Civil Liberties, Justice and Home Affairs Committee,
on 15 June 2011, adopted a report calling for a review of whether
anti-terror measures have led to increased security.
allowing
the European Union to stop transferring bulk data to the United
States for anti-terrorism purposes by establishing a legal and technical
framework for extraction of data on EU territory. Although this proposal
is still in its early stages and only outlines different possible
options, it has been criticised by a number of MEPs for being too
costly. The European
Parliament's Civil Liberties, Justice and Home Affairs Committee,
on 15 June 2011, adopted a report calling for a review of whether
anti-terror measures have led to increased security. 4.2. United Nations
34. Many United Nations bodies have dealt with the relationship
between human rights and terrorism. An exhaustive
appraisal would go beyond the scope of this report. Suffice it to
point to the Counter-Terrorism Committee (CTC), set up on 28 September
2001 by Resolution 1373
(2001) and comprising 15 members of the Security Council.
This Committee is responsible for the implementation of that resolution,
namely for monitoring countries’ progress in the fight against terrorism
and for helping them to meet their obligations. Resolution 1373 (2001) only
made passing reference to human rights and it was not until 2005
that the Security Council, in its Resolution 1624 (2005), explicitly
included human rights in the CTC’s mandate to implement the resolution.
An exhaustive
appraisal would go beyond the scope of this report. Suffice it to
point to the Counter-Terrorism Committee (CTC), set up on 28 September
2001 by Resolution 1373
(2001) and comprising 15 members of the Security Council.
This Committee is responsible for the implementation of that resolution,
namely for monitoring countries’ progress in the fight against terrorism
and for helping them to meet their obligations. Resolution 1373 (2001) only
made passing reference to human rights and it was not until 2005
that the Security Council, in its Resolution 1624 (2005), explicitly
included human rights in the CTC’s mandate to implement the resolution. 35. In March 2005, the post of special rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering
terrorism was created. The rapporteur's task is to support states
in their efforts in this context and make concrete recommendations
to them. In recent years, the rapporteur has delivered six reports.
Among other things, he has questioned the legality of the CTC’s
action under Chapter VII of the United Nations Charter, arguing
that the implementation of Resolution
1373 (2001) exceeds the powers conferred on the Security
Council by that Chapter and continues to pose risks to the protection
of a number of international human rights standards.
5. Selected human rights concerns in the fight against terrorism
36. I have decided to be selective in the choice of Convention
articles and examples and have not tried to deal with all rights
enshrined in the Convention and its protocols.
5.1. Non-derogable rights under the European Convention on Human Rights
37. Non-derogable rights are ones which a state must
guarantee, without exception, at all times, including in times of
war or other public emergencies threatening the life of the nation.
Article 15 of the Convention is clear in this respect. The non-derogable
rights are Article 2 (right to life), Article 3 (prohibition of
torture, inhuman or degrading treatment or punishment), Article
4, paragraph 1 (prohibition of slavery), and Article 7 (no punishment
without law). Nor is any derogation permitted to Protocol No. 13
(abolition of the death penalty).
5.1.1. Article 7 and the definition of terrorism from a human rights perspective
38. There is no universally agreed upon, comprehensive
and concise definition of terrorism. Yet,
there is broad agreement on what constitutes terrorism. For the
purposes of this report and for ease of reference, I shall therefore
concur with the United Nations Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering
terrorism, Mr Martin Scheinin, and base myself on United Nations Security
Council Resolution 1566
(2004), which refers to “criminal acts, including against
civilians, committed with the intent to cause death or serious bodily
injury, or taking of hostages, with the purposes to provoke a state
of terror in the general public or in a group of persons or particular
persons, intimidate a population or compel a government or an international
organisation to do or to abstain from doing any act”.
Yet,
there is broad agreement on what constitutes terrorism. For the
purposes of this report and for ease of reference, I shall therefore
concur with the United Nations Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering
terrorism, Mr Martin Scheinin, and base myself on United Nations Security
Council Resolution 1566
(2004), which refers to “criminal acts, including against
civilians, committed with the intent to cause death or serious bodily
injury, or taking of hostages, with the purposes to provoke a state
of terror in the general public or in a group of persons or particular
persons, intimidate a population or compel a government or an international
organisation to do or to abstain from doing any act”. 39. While the international community is concerned with international
terrorism, individual states affected by purely domestic forms of
terrorism may also legitimately include in their definition of terrorism
conduct that corresponds to elements of a serious crime as defined
by its national law, when combined with the other characteristics
of Resolution 1566 (2004). However,
the general rules on the legal definition of a criminal act must
apply. Laws penalising acts of terrorism must be formulated with
precision so as to comply with the principle of nulla poena sine lege, enshrined
in Article 7 of the Convention.
However,
the general rules on the legal definition of a criminal act must
apply. Laws penalising acts of terrorism must be formulated with
precision so as to comply with the principle of nulla poena sine lege, enshrined
in Article 7 of the Convention. 40. Doubts in this respect arise in particular with regard to
the Russian Law on counteracting terrorism of 2006 which includes
in its definition of punishable terrorist activities, inter alia, advocating the ideas
of terrorism, calling for terrorist action or justifying or defending
such actions, as well as any informational or other complicity in
the preparation and the realisation of a criminal act.
5.1.2. Article 2 – Right to life
41. Article 2 of the Convention, which requires that
everyone’s life shall be protected by law, enshrines one of the
most fundamental values of our democratic societies. This article
permits no derogation even in times of public emergency, threatening
the life of the nation within the meaning of Article 15 of the Convention,
also for the fight against terrorism and organised crime. According to the
case law of the Court, the state has the duty to minimise risks
for life in any anti-terrorist activities it carries out. In
this context, investigations into any killings must be immediate,
effective and independent, and capable of leading to the identification
and punishment of those responsible.
According to the
case law of the Court, the state has the duty to minimise risks
for life in any anti-terrorist activities it carries out. In
this context, investigations into any killings must be immediate,
effective and independent, and capable of leading to the identification
and punishment of those responsible. 42. These principles, self-evident as they would appear, must
be strictly observed when it comes to the application of counterterrorist
laws. In particular, security forces and military personnel, who
are at the forefront of anti-terrorist operations, must be properly
trained so as to ensure that excessive force is avoided.
43. Here, the Russian 2006 Law on counteracting terrorism, which
authorises anti-aircraft artillery to shoot down a plane after confirmation
that it has been highjacked and poses a threat to cities, must be
applied with utmost vigilance.
5.1.3. Article 3 – Prohibition of torture
44. Furthermore, the prohibition of torture and inhuman
or degrading treatment or punishment is absolute. Article 3 makes
no provision for exceptions and no derogation from it is permissible
under Article 15, even in the event of a public emergency threatening
the life of the nation. As the Court has held, Article 3 enshrines one
of the most fundamental values of a democratic society. The Court
indicated that it was well aware of the immense difficulty faced
by states in modern times in protecting their populations from terrorist
violence. However, even in these circumstances, the Convention prohibits
in absolute terms torture or inhuman or degrading treatment or punishment,
irrespective of the victims’ own conduct.
45. This prohibition is equally absolute in extradition and expulsion
cases and gives Article 3 a certain extra-territorial effect. It
is settled case law of the Court that extradition or expulsion of
a person by a member state may give rise to an issue under Article
3 where substantial grounds have been shown for believing that the person
in question would, if extradited or expelled, face a real risk of
being subjected to treatment contrary to Article 3 in the receiving
country (principle of non-refoulement ). This
absolute nature of the non-refoulement obligation
was challenged before the Court in Saadi v. Italy, where it was argued that the risk of terrorist suspects
being treated contrary to Article 3 by a third state should be weighed
against the threat they posed to the community. The Court held that
“it is not possible to weigh the risk of ill-treatment against the
reasons put forward for the expulsion in order to determine whether
the responsibility of a state is engaged under Article 3, even when
such treatment is inflicted by another state” and that protection of national security
could not justify a higher risk of torture or inhuman or degrading
treatment.
This
absolute nature of the non-refoulement obligation
was challenged before the Court in Saadi v. Italy, where it was argued that the risk of terrorist suspects
being treated contrary to Article 3 by a third state should be weighed
against the threat they posed to the community. The Court held that
“it is not possible to weigh the risk of ill-treatment against the
reasons put forward for the expulsion in order to determine whether
the responsibility of a state is engaged under Article 3, even when
such treatment is inflicted by another state” and that protection of national security
could not justify a higher risk of torture or inhuman or degrading
treatment. 46. This approach can only be welcomed. Claiming to balance the
right of the individual at risk of torture upon return and the supposed
needs of society as a whole departs from a false premise. While
with respect to derogable rights, a balance between majority and
minority interests has to be struck regularly, this is not a relevant
consideration where there is a risk of torture. Torture is absolutely
prohibited. This special status of the prohibition of torture in
the Convention would be ignored if governments could invoke the
need to balance the risk of torture against other public policy
considerations. Once such a boundary is overstepped, “the door back
to medievalism and barbarism opens all too readily”, as John Hedigan,
former judge at the European Court of Human Rights so aptly puts
it.
47. In some cases, states have extradited or deported suspected
terrorists despite an indication by the Court under Rule 39 of the
Rules of Court (interim measures) to refrain from so doing until
further notice. For example, in Ben Khemaisv.Italy, the
applicant, sentenced in Tunisia in his absence to ten years' imprisonment
for membership of a terrorist organisation, was deported to Tunisia
on account of his role in the activities of Islamic extremists,
despite the indication from the Court of an interim measure under
Rule 39 that he should remain in detention in Italy.
48. Such practice is most regrettable and, indeed, illegal.
49. Given the absolute prohibition under Article 3, the practice
of member states of expelling persons to countries where torture
and ill-treatment are frequently practised, relying on so-called
diplomatic assurances from the receiving states, raises particular
concerns. There
is already an argument against diplomatic assurances at the outset:
the perceived need for such guarantee is itself an acknowledgement
that a practice of torture or other ill-treatment may exist in the
receiving state. Furthermore, diplomatic assurances have been widely
criticised as unenforceable and allowing for no redress where they
are breached. Among
those highly critical of reliance on such assurances are the Venice
Commission, the
Council of Europe Commissioner for Human Rights and
the United Nations Special Rapporteur on Torture.
There
is already an argument against diplomatic assurances at the outset:
the perceived need for such guarantee is itself an acknowledgement
that a practice of torture or other ill-treatment may exist in the
receiving state. Furthermore, diplomatic assurances have been widely
criticised as unenforceable and allowing for no redress where they
are breached. Among
those highly critical of reliance on such assurances are the Venice
Commission, the
Council of Europe Commissioner for Human Rights and
the United Nations Special Rapporteur on Torture. 50. The Court’s case law has been less clear-cut. Although it
considered in individual cases that diplomatic assurances against
torture did not provide a sufficiently reliable guarantee against
the risk of ill-treatment to satisfy the obligation of non-refoulement it
has not ruled them out entirely.
it
has not ruled them out entirely. 51. It is my contention that diplomatic assurances are highly
problematic. Responsibility for the absolute prohibition of torture
is effectively delegated to the receiving country. This undermines
the international nature of the duty to prevent and prohibit torture. If applied, they require very
careful follow-up and particular caution has to be exercised with
regard to countries where there is documented systematic or widespread
use of torture and ill-treatment.
If applied, they require very
careful follow-up and particular caution has to be exercised with
regard to countries where there is documented systematic or widespread
use of torture and ill-treatment. 5.2. Derogable rights under the European Convention on Human Rights
5.2.1. Article 5 – Right to liberty and security
52. Article 5 of the Convention, which provides for the
right of liberty and security of person in general, contains a number
of provisions relating to the lawfulness of detention, to being informed of the
reasons for the arrest , to being
brought before a judge, to habeas corpus proceedings and to an adversarial hearing. Subject
to the derogation provisions of Article 15, the exceptions set out
in Article 5, paragraph 1, are exhaustive and must be interpreted
narrowly. This article leaves some room for limitations in order
to accommodate specific concerns which arise from the nature of
terrorism, notably regarding detention issues. Here, the Court has
held that states’ investigating authorities cannot arrest suspects
for questioning without effective control by the domestic courts
or by the Convention supervisory mechanism. In particular,
Article 5, paragraph 3, of the Convention stipulates that everyone
arrested shall be brought promptly before a competent judicial authority.
Although the Court has not specified an exact time-limit for bringing
arrested persons before a competent judicial authority, its case
law offers some guidance. In the case of Brogan
and others v.United Kingdom, the Court
held that detention periods ranging from four days and six hours
to six days and 16 hours before being brought before a competent
judicial authority violated Article 5, paragraph 3. Although the
Court acknowledged that the arrest and detention of the applicants
were undoubtedly inspired by the legitimate aim of protecting the
community as a whole from terrorism, this was not on its own sufficient
to ensure compliance with the specific requirements of Article 5,
paragraph 3. According to the Court, “[t]o attach such importance
to the special features of this case as to justify so lengthy a
period of detention without appearance before a judge or other judicial
officer would be an unacceptably wide interpretation of the plain meaning
of the word 'promptly' and an interpretation to this effect would
import into Article 5, paragraph 3, a serious weakening of a procedural
guarantee to the detriment of the individual and would entail consequences impairing
the very essence of the right protected by this provision”.
to being informed of the
reasons for the arrest , to being
brought before a judge, to habeas corpus proceedings and to an adversarial hearing. Subject
to the derogation provisions of Article 15, the exceptions set out
in Article 5, paragraph 1, are exhaustive and must be interpreted
narrowly. This article leaves some room for limitations in order
to accommodate specific concerns which arise from the nature of
terrorism, notably regarding detention issues. Here, the Court has
held that states’ investigating authorities cannot arrest suspects
for questioning without effective control by the domestic courts
or by the Convention supervisory mechanism. In particular,
Article 5, paragraph 3, of the Convention stipulates that everyone
arrested shall be brought promptly before a competent judicial authority.
Although the Court has not specified an exact time-limit for bringing
arrested persons before a competent judicial authority, its case
law offers some guidance. In the case of Brogan
and others v.United Kingdom, the Court
held that detention periods ranging from four days and six hours
to six days and 16 hours before being brought before a competent
judicial authority violated Article 5, paragraph 3. Although the
Court acknowledged that the arrest and detention of the applicants
were undoubtedly inspired by the legitimate aim of protecting the
community as a whole from terrorism, this was not on its own sufficient
to ensure compliance with the specific requirements of Article 5,
paragraph 3. According to the Court, “[t]o attach such importance
to the special features of this case as to justify so lengthy a
period of detention without appearance before a judge or other judicial
officer would be an unacceptably wide interpretation of the plain meaning
of the word 'promptly' and an interpretation to this effect would
import into Article 5, paragraph 3, a serious weakening of a procedural
guarantee to the detriment of the individual and would entail consequences impairing
the very essence of the right protected by this provision”. 53. One sensitive issue in this respect is preventive (administrative)
detention, that is imprisoning someone without charge or trial.
There has been a trend in some member states to establish preventive
or administrative legal responses to terrorism, in parallel to criminal
sanctions, which are based on secret intelligence information that
the person concerned can barely be informed of, let alone contest. Such measures can take the form of
preventive detention, control orders and deportation on national
security grounds. Such measures should not be viewed as more convenient
alternatives to criminal prosecutions. They may have a greater impact
on the lives of individuals than criminal sanctions.
Such measures can take the form of
preventive detention, control orders and deportation on national
security grounds. Such measures should not be viewed as more convenient
alternatives to criminal prosecutions. They may have a greater impact
on the lives of individuals than criminal sanctions. 54. The Assembly has already dealt with the question of the length
of such administrative detention.
55. I would like to illustrate the issue of general challenges
facing national authorities with regard to administrative detention
with an example from the United Kingdom, which is illustrative of
the challenges faced by member states trying to comply with the
international human rights framework.
56. In the United Kingdom, control orders, a form of house arrest,
were made possible through the 2005 Act on the Prevention of Terrorism. They
were introduced in an attempt by the government to comply with Articles
3 and 5 of the Convention. The problem to be dealt with at the outset
was the following: How to deal with foreign nationals who had no
right to live in the United Kingdom, who were suspected of involvement
in terrorism, but who could not be deported to their home countries
because of the above-mentioned principle of non-refoulement. In order to tackle
such a situation, the British government, by virtue of Article 15
of the Convention, decided to derogate from Article 5 in order to
permit the detention of foreign nationals suspected in involvement
of terrorism, even where they could not be deported. The matter
went to the House of Lords, which ruled in the “Belmarsh case”,
that such a regime, allowing the Secretary of State for the Home Department
to detain a suspected international terrorist with a view to his
intended deportation, was incompatible with the right to liberty
under the Convention.
They
were introduced in an attempt by the government to comply with Articles
3 and 5 of the Convention. The problem to be dealt with at the outset
was the following: How to deal with foreign nationals who had no
right to live in the United Kingdom, who were suspected of involvement
in terrorism, but who could not be deported to their home countries
because of the above-mentioned principle of non-refoulement. In order to tackle
such a situation, the British government, by virtue of Article 15
of the Convention, decided to derogate from Article 5 in order to
permit the detention of foreign nationals suspected in involvement
of terrorism, even where they could not be deported. The matter
went to the House of Lords, which ruled in the “Belmarsh case”,
that such a regime, allowing the Secretary of State for the Home Department
to detain a suspected international terrorist with a view to his
intended deportation, was incompatible with the right to liberty
under the Convention. 57. Control orders were introduced as a less restrictive measure.
This legislative intent should be taken into account when appraising
the system of control orders.
58. Two conditions must be satisfied for a control order to be
granted. By section 2 of the Act on the Prevention of Terrorism,
the United Kingdom Home Secretary must have “reasonable grounds
for suspecting that the individual is or has been involved in terrorism-related
activity” and show that “it is necessary, for purposes connected
with protecting members of the public from a risk of terrorism,
to make a control order imposing obligations on that individual”.
The Home Secretary can therefore restrict an individual's liberty
for the purpose of protecting members of the public from a risk
of terrorism.
59. In this context “Special advocates” are employed. They are
barristers who have been appointed by the government and given security
clearance to represent the interests of terror suspects at secret
court hearings. They are cleared to see secret or "closed" documents
from the intelligence services, but are not allowed to speak to
the suspect or his lawyers once they have seen this information.
60. It seems that the United Kingdom is the only country implementing
such a system. However, its practical application leaves room for
improvement. As was seen at the expert hearing on 17 November 2010
in Paris, hearsay
evidence is still permitted on a routine basis. Corporate evidence
of what is described as a “mosaic” of allegations is being deployed,
often by quite junior security service officers who are not necessarily
very familiar with the case at issue. The standard of proof under
the statute remains very low. The Secretary of State only needs
to show a reasonable suspicion of terrorism-related activity, without
having to prove any conduct at all on the part of the individual
in question. In contrast to a convicted prisoner, the controlled
person does not even know when the restrictions he or she faces
will come to an end. Control orders can be renewed for successive,
and unlimited, one-year periods. The controlled person is in some
cases left in a position where, even after the House of Lords’ interventions,
the key evidence against him or her is set out in the closed case and
in closed judgments. In such cases he or she is deprived of the
most basic right of any disappointed litigant: knowing why he or
she has lost.
hearsay
evidence is still permitted on a routine basis. Corporate evidence
of what is described as a “mosaic” of allegations is being deployed,
often by quite junior security service officers who are not necessarily
very familiar with the case at issue. The standard of proof under
the statute remains very low. The Secretary of State only needs
to show a reasonable suspicion of terrorism-related activity, without
having to prove any conduct at all on the part of the individual
in question. In contrast to a convicted prisoner, the controlled
person does not even know when the restrictions he or she faces
will come to an end. Control orders can be renewed for successive,
and unlimited, one-year periods. The controlled person is in some
cases left in a position where, even after the House of Lords’ interventions,
the key evidence against him or her is set out in the closed case and
in closed judgments. In such cases he or she is deprived of the
most basic right of any disappointed litigant: knowing why he or
she has lost. 61. A proposal is currently under consideration to replace control
orders by Terrorism Prevention and Investigation Measures (TPIMs), which will impose less severe restrictions
upon a terrorist suspect.
which will impose less severe restrictions
upon a terrorist suspect. 62. The current bill introduces increased safeguards for the civil
liberties of individuals subject to the measures, including a tougher
test for the measures to be imposed than that applicable to control
orders and a maximum time-limit of two years (further measures can
only be imposed if the person has re-engaged in terrorism). Restrictions
that impact on an individual’s ability to follow a normal pattern
of daily life will be kept to the minimum necessary to protect the
public, and will have to be proportionate and clearly justified.
The type of restrictions which can and cannot be imposed will be
made clearer. For instance, lengthy curfews will be replaced by
a more flexible overnight residence requirement, the possibility
of relocation to another part of the country without consent will
be scrapped, geographical boundaries will be replaced with the more
limited power to impose tightly-defined exclusions from particular
areas, individuals subject to the measures must be permitted a landline
and a mobile telephone, and a computer with Internet connection.
Importantly, there shall be a broad judicial oversight of the system
with high court permission being needed to impose the measures (or
to immediately confirm measures imposed in urgent cases), a full
automatic review of each case in which measures will be imposed
and rights of appeal for the individual against the refusal of a
request to revoke or vary the measures. Furthermore, the bill proposes
a duty on the Secretary of State to consult on the prospects of
prosecuting an individual before measures may be imposed, and a
duty to keep the continued need for the measures under review as
long as they are in force. The independent reviewer of terrorism
legislation will publish an annual review of the operation of the
system.
63. While the bill should, in principle, be welcomed as an improvement,
practice will show whether such TPIMs will comply with the Convention.
This will depend on whether courts will insist on the best evidence available
being produced at a hearing and on whether there shall be greater
use of in camera procedures (procedures
where the public is excluded from the courtroom) instead of closed
procedures (procedures whereby certain material can be withheld
from the suspect when its disclosure would be contrary to the public interest),
as is currently the case. There should be also a relaxation of the
rules on the extent to which special advocates can communicate with
other advocates. And finally, from the outset there should be an
express undertaking by the Secretary of State that the government
would compensate any person subjected to a control order if a court
subsequently established that the control order was not justified.
5.2.2. Article 6 – Right to a fair trial
64. Article 6 provides for the right to a fair trial,
which includes a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
65. Under the Spanish Law on Criminal Procedure a judge can order
a detainee to be held incommunicado. During
this time, the detainee only has the right to be assisted by an
assigned lawyer, instead of one freely chosen by the suspect; oral
communication is not allowed and all communication in writing is
controlled by a judge. The requirement of an officially appointed
lawyer is motivated by the need to prevent the use of lawyers working
themselves for terrorist organisations or maintaining links between
detainees and such organisations.
66. Such restrictions of access to legal counsel can only be in
compliance with Article 6 if they are strictly necessary and proportionate
to the legitimate aim pursued. An accused person’s right to communicate
with his or her legal counsel in private is part of the basic requirements
of a fair trial and follows from Article 6, paragraph 3. This applies to all stages of detention.
In the recent leading case of Salduz
v. Turkey a minor was charged with, and subsequently
convicted of, participation in an unauthorised demonstration in
support of the PKK. The applicant, in the absence of a lawyer, had
made a statement while in police custody admitting his guilt. The Court
held that even though the applicant had been able to contest the
charges at his trial, the fact that he could not be assisted by
a lawyer while in police custody had irretrievably affected his
defence rights, especially as he was a minor. Access to a lawyer
should be provided as from the first interrogation of a suspect
by the police, unless it is demonstrated in the light of the particular
circumstances of each case that there are compelling reasons to
restrict this right.
This applies to all stages of detention.
In the recent leading case of Salduz
v. Turkey a minor was charged with, and subsequently
convicted of, participation in an unauthorised demonstration in
support of the PKK. The applicant, in the absence of a lawyer, had
made a statement while in police custody admitting his guilt. The Court
held that even though the applicant had been able to contest the
charges at his trial, the fact that he could not be assisted by
a lawyer while in police custody had irretrievably affected his
defence rights, especially as he was a minor. Access to a lawyer
should be provided as from the first interrogation of a suspect
by the police, unless it is demonstrated in the light of the particular
circumstances of each case that there are compelling reasons to
restrict this right. 5.2.3. Article 8 – Right to respect for private and family life
67. The right to privacy, as provided for by Article
8 of the Convention, is at
risk of interference by the state in the fight against terrorism.
The second paragraph of Article 8 sets out the circumstances in
which interferences with the rights protected by these articles
may be justified. Nevertheless, in order to avoid arbitrariness,
any interference with these rights must have a legal basis; that
is any interference must be “in accordance with the law” or “prescribed
by law”. In
this connection, the Court requires, firstly, “that the law must
be adequately accessible: the citizen must be able to have an indication
that is adequate in the circumstances of the legal rules applicable
to a given case. Secondly, a norm cannot be regarded as a “law” unless
it is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able – if need be with appropriate
advice – to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail”. A law which
confers a discretion is not in itself inconsistent with this requirement,
provided that the scope of the discretion and the manner of its
exercise are indicated with sufficient clarity, having regard to
the legitimate aim in question, to give the individual adequate
protection against arbitrary interference. Once
it is established that a restriction has been “prescribed by law”,
the Court considers whether the restriction is “necessary in democratic
society”. In assessing this, the Court considers whether the restriction
pursues one of the legitimate aims, as specified in Article 8, paragraph
2, whether it is proportionate to the legitimate aim, and whether
the reasons given by the national authorities to justify the restriction
are relevant and sufficient under Article 8, paragraph 2.
In
this connection, the Court requires, firstly, “that the law must
be adequately accessible: the citizen must be able to have an indication
that is adequate in the circumstances of the legal rules applicable
to a given case. Secondly, a norm cannot be regarded as a “law” unless
it is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able – if need be with appropriate
advice – to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail”. A law which
confers a discretion is not in itself inconsistent with this requirement,
provided that the scope of the discretion and the manner of its
exercise are indicated with sufficient clarity, having regard to
the legitimate aim in question, to give the individual adequate
protection against arbitrary interference. Once
it is established that a restriction has been “prescribed by law”,
the Court considers whether the restriction is “necessary in democratic
society”. In assessing this, the Court considers whether the restriction
pursues one of the legitimate aims, as specified in Article 8, paragraph
2, whether it is proportionate to the legitimate aim, and whether
the reasons given by the national authorities to justify the restriction
are relevant and sufficient under Article 8, paragraph 2. 68. The most obvious measures to be closely appraised in the light
of Article 8 are surveillance, interception, and the installation
of closed-circuit television.
69. The Court has recognised the need for states to use anti-terrorism
measures such as secret surveillance. The
second paragraph of Article 8 explicitly permits restrictions when
its aim is one of those specified in the paragraph, including the
protection of public safety and national security. Nevertheless, “Contracting
States may not, in the name of the struggle against espionage and
terrorism, adopt whatever measures they deem appropriate”. The
Court must be satisfied that, whatever measures are adopted, there exists
adequate and effective guarantees against abuse. Such
an assessment depends on all the circumstances of the case, such
as the nature, scope and duration of the possible measures, the
grounds required for ordering such measures, the authorities competent
to permit, carry out and supervise such measures, and the kind of
remedy provided by law. In
other words, powers of secret surveillance are tolerable under the
Convention only in so far as they are strictly necessary for safeguarding
the democratic institutions.
The
second paragraph of Article 8 explicitly permits restrictions when
its aim is one of those specified in the paragraph, including the
protection of public safety and national security. Nevertheless, “Contracting
States may not, in the name of the struggle against espionage and
terrorism, adopt whatever measures they deem appropriate”. The
Court must be satisfied that, whatever measures are adopted, there exists
adequate and effective guarantees against abuse. Such
an assessment depends on all the circumstances of the case, such
as the nature, scope and duration of the possible measures, the
grounds required for ordering such measures, the authorities competent
to permit, carry out and supervise such measures, and the kind of
remedy provided by law. In
other words, powers of secret surveillance are tolerable under the
Convention only in so far as they are strictly necessary for safeguarding
the democratic institutions. 70. It emerges from the Court’s case law that states may have
very good reasons to carry out surveillance, interception, to install
closed-circuit television and to monitor movements of funds in the
fight against terrorism. Such actions are legitimate and may be
necessary. They must, however, be accompanied by appropriate judicial
safeguards. Regarding covert surveillance schemes, the Court requires
that there be effective safeguards such as an independent monitoring
body.
71. In this context, particular attention must be paid to the
application of the Russian Law on Counteracting Terrorism of 2006.
This law does not define the “area of counter-terrorist operation”
which means that a counter-terrorist operation can be carried out
in a “territory with a substantial number of residents” without
any special limits. The area of counter-terrorist operation is determined
by the official in charge. The counter-terrorist regime allows for
ID checks, tapping of telephone conversations, letters and other
means of communication, restrictions on movement of vehicles and
pedestrians, unhindered access to private homes and land plots and
restrictions or bans on the sale of certain goods, including alcohol.
All this is not accompanied by any judicial oversight. The law provides
that the chief operational headquarters may decide to resettle the
population from the area of anti-terrorist operations. Thus, anti-terrorist
operations often seem to be carried out regardless of the situation
of women and minors who happen to be in the same household or civilians
in the same block of flats where the operation takes place. Journalists
have no access to the areas where a counter-terrorist operation
is carried out.
72. The lack of judicial oversight is particularly worrying in
this respect. It was reported at the hearing in Paris that in one
instance, the counter-terrorist operation in a village in the Republic
of Dagestan lasted for almost nine months, during which time journalists
had not been able to enter the village. In
several instances, journalists were deported from Ingushetia when
anti-terrorist measures were carried out. Under former President
Zyazikov, counter-terrorist operations were reportedly used as pretexts
to prohibit anti-government demonstrations.
In
several instances, journalists were deported from Ingushetia when
anti-terrorist measures were carried out. Under former President
Zyazikov, counter-terrorist operations were reportedly used as pretexts
to prohibit anti-government demonstrations. 73. Such action appears disproportionate and seems difficult to
reconcile with the above-mentioned case law of the Court.
74. Within the legislative framework of the European Union, member
states have stepped up exchanges of information between domestic
intelligence services and law enforcement bodies.
75. In particular, the Data Retention Directive, adopted
on the basis of the European Union’s competence to harmonise domestic
laws concerning the functioning of the internal market, obliges EU member states to store
citizens' telecommunications data for six to 24 months stipulating
a maximum time period. Under the Directive the police and security
agencies will be able to request access to details such as IP address
and time of every e-mail, phone call and text message sent or received.
adopted
on the basis of the European Union’s competence to harmonise domestic
laws concerning the functioning of the internal market, obliges EU member states to store
citizens' telecommunications data for six to 24 months stipulating
a maximum time period. Under the Directive the police and security
agencies will be able to request access to details such as IP address
and time of every e-mail, phone call and text message sent or received. 76. This Directive must be interpreted in the light of fundamental
human rights. While it is useful to share information when there
are genuine reasons of national security, the need must be well-documented
and safeguards put in place. With such safeguards in place and given
that, under the Directive, any request to access the information
will require a court order, the Data Retention Directive seems to
me to strike a good balance. I am also pleased to see that the European
Commission, in its recent evaluation report on this directive, sees
fit to interpret it in the light of fundamental and human rights
and makes specific and detailed reference to the Convention.
5.2.4. Article 10 – Freedom of expression
77. The Convention sets out binding standards regarding
freedom of expression. It also recognises that there can be valid
limitations placed on the right. Speech and other forms of expression
can incite terrorism and it is legitimate to criminalise such activities.
Article 10 of the Convention guarantees freedom of expression and
also sets out the circumstances in which interferences with this
right may be qualified or restricted for reasons which are limitatively
enumerated. In this context, the Court has acknowledged, with due
regard to the circumstances and a state’s margin of appreciation,
that a balance has to be struck between the individual’s right to
freedom of expression and a democratic society’s legitimate right
to protect itself against the activities of terrorist organisations. Any limitation
must, however, respect the case law of the Court and not limit forms of
expression that are merely controversial and do not incite to violence.
Any limitation
must, however, respect the case law of the Court and not limit forms of
expression that are merely controversial and do not incite to violence. 78. The right to freedom of speech does not mean a right to incite
violence. Article
5 of the Council of Europe Convention on the Prevention of Terrorism
therefore foresees the criminalisation of public provocation to
terrorism.
Article
5 of the Council of Europe Convention on the Prevention of Terrorism
therefore foresees the criminalisation of public provocation to
terrorism. 79. In recent years, a number of states have created new offences
for this purpose. The Spanish Penal Code thus criminalises “praising
or justification, through any means of public expression or broadcasting,
of the offences”. The United Kingdom
Terrorism Act 2006 provides for offences that “intend members of
the public to be directly or indirectly encouraged or otherwise
induced (to terrorism) … or is reckless as to whether members of
the public will be directly or indirectly encouraged or otherwise
induced”. This provision includes every statement which glorifies
the commission or preparation (whether in the past, in the future
or generally) of such acts and offences or indirect encouragement
or public justification of terrorist acts. The Russian Law on Counteracting
Terrorism of 2006 amended the Penal Code to introduce a new offence
of public justification of terrorism, which is punishable by up
to four years of prison (and five years if mass media are used).
Here, public justification of terrorism is understood as public
statements which recognise the terrorist ideologies and practice
as legitimate and deserving to be supported and emulated.
The United Kingdom
Terrorism Act 2006 provides for offences that “intend members of
the public to be directly or indirectly encouraged or otherwise
induced (to terrorism) … or is reckless as to whether members of
the public will be directly or indirectly encouraged or otherwise
induced”. This provision includes every statement which glorifies
the commission or preparation (whether in the past, in the future
or generally) of such acts and offences or indirect encouragement
or public justification of terrorist acts. The Russian Law on Counteracting
Terrorism of 2006 amended the Penal Code to introduce a new offence
of public justification of terrorism, which is punishable by up
to four years of prison (and five years if mass media are used).
Here, public justification of terrorism is understood as public
statements which recognise the terrorist ideologies and practice
as legitimate and deserving to be supported and emulated. 80. In so far as such provisions are phrased in a very general
and abstract way and weaken the causal link between the original
speech and the danger that criminal acts may be committed, they
are to be regarded with great caution.
81. In this context, the Russian Federal law on Counteraction
of Extremist Activity appears
problematic. It includes “extremist” activities in the notion of
terrorist activities, using very vague and broad definitions. This law
raises questions as to foreseeability and legal certainty and may
lend itself to arbitrary enforcement.
appears
problematic. It includes “extremist” activities in the notion of
terrorist activities, using very vague and broad definitions. This law
raises questions as to foreseeability and legal certainty and may
lend itself to arbitrary enforcement. 82. In addition to this, organisations, including non-governmental
organisations and media organisations, which distribute materials
containing public appeals justifying terrorism or have an “extremist”
nature can be closed down. One of the experts
at the hearing in Paris stated that the prohibition of justifying
terrorism encouraged arbitrary restrictions of the freedom of expression
as well as editorial self-censorship, since justification of terrorism
was defined very broadly. Moreover, the law on media stipulates
that procedures for gathering information by journalists in the
territory or on the site of a counter-terrorist operation shall
be determined by the chief of the counter-terrorist operation. This
provision could be used to unduly restrict the freedom of information.
One of the experts
at the hearing in Paris stated that the prohibition of justifying
terrorism encouraged arbitrary restrictions of the freedom of expression
as well as editorial self-censorship, since justification of terrorism
was defined very broadly. Moreover, the law on media stipulates
that procedures for gathering information by journalists in the
territory or on the site of a counter-terrorist operation shall
be determined by the chief of the counter-terrorist operation. This
provision could be used to unduly restrict the freedom of information. 83. Still in Russia, in July 2010, new provisions were added to
the law on the Federal Security Service (FSB) allowing the FSB to
issue “warnings” to individuals, organisations, and media outlets.
The warnings require individuals or organisations to stop any activities
the FSB considers as actually or even potentially “extremist”. Such
a law is alarming, for it risks putting the FSB above the law. It
not only appears to be in breach of the freedom of expression, but
of the rule of law in general. The fact that, in response to protests
from human rights activists, lawmakers earlier withdrew an amendment
allowing the FSB to summon people to their offices to hand out the
warnings and also publish their warnings in the media, does not
make matters any better. The chilling effect on individuals such
as journalists, who are only doing their job, remains immense.
Such
a law is alarming, for it risks putting the FSB above the law. It
not only appears to be in breach of the freedom of expression, but
of the rule of law in general. The fact that, in response to protests
from human rights activists, lawmakers earlier withdrew an amendment
allowing the FSB to summon people to their offices to hand out the
warnings and also publish their warnings in the media, does not
make matters any better. The chilling effect on individuals such
as journalists, who are only doing their job, remains immense. 6. Conclusion
84. It has been shown that within the normative framework
of the European Convention on Human Rights, states dispose of the
necessary flexibility to fight terrorism and protect all individuals
living under their jurisdiction. The modern human rights framework,
after the Second World War, was designed to maintain security in
times of emergency, with an eye on combating potential abuse.
85. There is no need for a "trade-off" between human rights and
effective counter-terrorism practices, as safeguards exist in human
rights law itself. As has been shown, the Convention, like other
international human rights instruments, can be applied in such a
way as to allow states to take reasonable and proportionate action to
defend democracy and the rule of law against the threat of terrorism.
86. The primacy of the criminal justice system must not be given
up. States should resist the temptation to resort to coercive measures
outside established criminal procedures and their safeguards designed
to protect the innocent. Here, I can only fully subscribe to the
view of the Eminent Panel of the International Commission of Jurists
which states that “all acts of terrorism are crimes. Take away the
terrorist label and these acts – murder, hostage taking, highjacking
and violence against civilians – are all very serious criminal offences
under any legal system. If the criminal justice system is inadequate
to the new challenges posed, it must be made adequate”.
87. In this context, the concept of “war on terror” is misleading
and unhelpful in that it is the rights of civilian victims which
are challenged by terrorism and terrorist crimes do not amount to
acts of war.
88. I would like to finish my report with a remark of a general
nature. Following the terrorist attacks of 11 September 2001, a
number of states enacted provisional laws in order to confront a
perceived imminent danger of terrorism. Ten years after this atrocious
event would be a good moment for states to review such laws and consider
whether they are still necessary. Obviously,
this decision is to be taken by each state. I can, however, only
urge states to critically review their legislation in the light
of the substantive work that has been carried out by organisations
such as ours on the topic of human rights and the fight against
terrorism. There is a danger that temporary measures, even if considered
necessary at the time, become permanent even when circumstances
have changed. It is extremely difficult to reinstate appropriate
human rights protection standards once they have been abolished
or reduced in scope.
Obviously,
this decision is to be taken by each state. I can, however, only
urge states to critically review their legislation in the light
of the substantive work that has been carried out by organisations
such as ours on the topic of human rights and the fight against
terrorism. There is a danger that temporary measures, even if considered
necessary at the time, become permanent even when circumstances
have changed. It is extremely difficult to reinstate appropriate
human rights protection standards once they have been abolished
or reduced in scope.