Counterterrorism and human rights

10 June 2013 - For several years now, the ECCHR has been working on so-called ‘terrorism lists‘. The main focus of this work is to address the grave violation of basic constitutional and human rights that arises by identifying individuals and groups in such a process of listing. Secondly, the ECCHR is working to scrutinize the political and social reaction to terrorism and the waivering of important constitutional achievements in dealing with certain actors. The ECCHR has initiated individual emblematic legal cases along with several discussions and debates, such as the report Blacklisted.

Cases

ECCHR is currently supporting four individuals living in Italy who have been on UN and EU terror lists since 2003-2004. Two removal request to the United Nations Security Council 1267 Committee ombudsperson were successful when two individual were taken off the list on May 7th and June 21st 2012. The 1267 committee administrates the UN terror lists, which compile the names of individuals and groups against whom sanctions have been issued following their suspected involvement in terrorism. Italian courts have former acquitted all four people of any accusations of terrorism. Nevertheless, they remained on the UN list as ‘former members’ of an Italian terrorist group, which is suspected to have had links to the organization Al-Quaeda in the Islamic Maghreb (GSPC). As a result of the listing, all assets of the accused as well as those of their families were frozen and subject to strict monitoring by the Italian authorities. The decision on one remaining application is still pending. Similarly, applications put to the EU commission have been successful in three cases.
In another case, ECCHR supported a reference for a preliminary ruling at the European Court of Justice with a legal opinion in which the illegality of the system of terror listing was put forward. The Higher Regional Court of Dusseldorf raised the issue with the European Court of Justice of whether collecting donations for the Turkish DHKP-C – an organization identified on the EU list – constitutes a criminal offence according to German law. The listing of the groups involved was thus declared invalid (Rs. C-550/09). This means that criminal prosecution in Germany cannot be carried out on the basis of a group’s inclusion in the EU terror list. The reasoning given for the invalidity was the lack of ‘justification for including the DHKP-C in the list‘. According to the Court, no necessary judicial control can therefore be guaranteed, particularly to review the facts of the case or the given evidence and information.

The Sison Case

In one of the first terror listing cases, the ECCHR participated in the legal dispute of the Filipino politician and journalist Prof. Jose Maria Sison, who is living in exile in Holland. Mr. Sison was first added to the list in October 2002. The European Court of First Instance judged that the listing was contrary to Sison’s right to a fair trial as he was confronted by the sanctions without being given any justification and had no opportunity to respond to the accusations. Reacting to this first ruling, the EU gave Mr. Sison a statement in which they explained very briefly their decisions and the reasoning for him to remain on the list. In a second ruling on September 30th 2009, the European Court of First Instance declared the decisions of the European Council on the freezing of assets and Sison’s inclusion in the EU ‘terrorism list‘ to be void. Mr. Sison was then removed from the list, but was nevertheless denied compensation.

El Haski case – Use of torture evidence

On 18 June 2009, ECCHR, in cooperation with the British human rights organization Redress, intervened in the European Court of Human Rights (ECHR) case of El Haski v. Belgium. The case is concerned with the use of evidence procured by the torture of Mr. El Haski in his criminal trial on terrorism related charges in Belgium. The European Court of Human Rights decided on 25 September 2012 that fair trial rules have been breached and ordered Belgium to pay compensation.

Moroccan citizen El Haski was convicted to seven years of imprisonment in 2004 in Belgium for several offences committed with regard to an alleged terrorist group based in Afghanistan and Morocco. At his conviction, witness testimony from Morocco was used which, according to El Haski, was procured by torture.

The use of evidence procured by torture is prohibited pursuant to several international agreements to which Belgium is a party. The agreements seek to remove incentive for national investigating authorities to engage in torture, and to uphold the rights of the accused and the integrity of the legal procedure. Professor Theo van Boven, member of ECCHR's council and former UN Special Rapporteur on Torture, notes that "evidence that has been procured under torture or other circumstances that amount to grave violations of human rights are not admissible under any circumstances. No judicial proceedings must be based on such evidence."

The European Court of Human Rights decided that an accused only has to prove a “real risk” that evidence has been obtained under torture or inhuman treatment. A higher standard, such as Belgian courts and the UK, intervening in the case, require with the prove of torture “beyond reasonable doubt”, violates the right to a fair trial enshrined in article 6 of the European Convention on Human Rights.

The intervention made by the ECCHR and Redress addresses the definition, aim and scope of the prohibition, the burden of proof, and the influence of the prohibition on the proceedings. It is contended that a real risk of torture has to be sufficient to trigger the prohibition, and that the accused cannot duly be expected to procure evidence, given the common involvement of secrecy issues and a lack of access to information regarding the acts of states and repressive regimes. The human rights court followed this argumentation.

Criticism of Germany's state report on torture

ECCHR actively participates in the periodic proceedings of the UN Committee Against Torture. Under these proceedings, states parties to the UN Convention Against Torture are obliged to prepare a report on the implementation of the Convention and the Committee's recommendations every four years. ECCHR presented its own alternative report to the Committee regarding Germany's state report.

The alternative report refers to the exchange of data with other states which facilitates the arrest and mistreatment of German citizens abroad, as well as interrogations carried out by German officials in foreign prisons that do not comply with standards set by the UN Convention Against Torture. Furthermore, evidence gathered in such prisons is used in Germany in connection with crime prevention and prosecutions.

Debate / Publication

ECCHR has released a comprehensive publication on the subject of terrorism lists. The report Blacklisted compiled by Gavin Sullivan and Ben Hayes comprises a detailed critique of the process of the ‘blacklisting‘ of individuals by the United Nations and the European Union. The report offers an overview of fundamental rights violations by terrorism listing and also of the most important cases of European jurisdiction over the past decade. An analysis follows of the political ramifications and problems of the procedure and a critical evaluation of possible structural reforms. It goes on to illustrate how the listing system is currently facing a crisis of legitimacy. The authors discuss the recommendations of Martin Scheinin, former UN Special Rapporteur on human rights and counter-terrorism, who advocates the abolition of the lists. In his foreword to Blacklisted, he writes:

Whatever justification there was in 1999 for targeted sanctions against Taliban leaders as the de facto regime in Afghanistan, the maintenance of a permanent global terrorist list now goes beyond the powers of the Security Council. While international terrorism remains an atrocious crime [...], it does not justify the exercise by the Security Council of supranational sanctioning powers over individuals and entities.

Blacklisted shows that this whole situation is not only about individual laws that need to be changed. What’s more, it cannot be left to states, political decision makers or courts to find solutions for themselves. A wide, public discussion on handling terrorism and the nature of political organizations must be initiated if we want to not only control the ongoing problem of blacklisting, but also to solve it.

Debate / Events

 

The subject of terror listing also constituted part of the conference ‘Ten Years After 9/11: Looking Back, Moving Forward‘, organized by ECCHR in collaboration with Amnesty International in Berlin on June 29th 2011. On May 21st 2010, a panel discussion co-organized by ECCHR took place at the Humboldt University, Berlin. Under the title ‘A New Step Towards Enemy Criminal Law? The EU Terrorism Lists in Connection with § 34 of the Foreign Trade Act‘, German Constitutional Court judge Andreas Paulus amongst others critically discussed the usage of ‘terrorism lists‘, referring directly to the German case towards which the ECCHR contributed before the European Court of Justice (see above). ECCHR, together with the Free University of Brussels, organized an international conference on October 20th 2009 on the subject of terror listing by the European Union and United Nations and its compatibility with fundamental and human rights.

TagsEtiquetas

  • EU
  • European Court of Human Rights
  • Redress
  • terror lists
  • UN
  • UN Committee Against Torture

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