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Home > Human Rights & Humanitarian Law > Armed Conflict & the Law > What is Terrorism? >> Terrorism: European Union Law & Practise > Counter-terrorism and the Rule of Law in the EU
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Terrorism: European Union Law & Practise Counter-terrorism and the Rule of Law in the EU
Human rights are often portrayed as a potential barrier to effective protection from "terrorist" acts rather than a pre-requisite for genuine security. Some argue that the threat of "terrorism" can justify limiting or suspending human rights. Even the prohibition of torture, a fundamental human rights principle and a rule of customary international law which binds every state and every individual, has been called into question. The central argument of this report is that it is in the breach, not in the respect of human rights, that security is put at risk. Amnesty International’s analysis seeks to propose ways in which the European Union could act to ensure that its approach to terrorism not only acknowledges but actively incorporates the need to protect human rights and the rule of law in this sensitive area. Unfortunately, amid the flurry of recent counter-terrorism initiatives both in the EU and beyond, the concept of human rights and the rule of law as the basis for genuine security has been lost all but in the rhetoric. In its policies and legislation on counter-terrorism, the EU has failed so far to properly address the serious issue of the protection of fundamental rights. While one element of the creation of the EU’s Area of Freedom, Security and Justice(1) is the promotion and protection of fundamental rights, this aspect has not been manifest in concrete proposals on counter-terrorism. The language adopted in the area of judicial and police cooperation within the EU to combat serious and organised crime including terrorism, speaks of mutual trust and shared values. But in practice, the fight against terrorism often is being used as justification for compromising those values or turning a blind eye to the questionable practices and legislative frameworks on counter-terrorism in some EU Member States. As far as cooperation with third countries in the fight against terrorism is concerned, the EU and its Member States too often are prepared to remain silent on the issue of rights protection. While there is a general assumption that the human rights of terrorist suspects will be protected within the European Union, little attention is given to credible concerns that serious human rights abuses may occur when those suspects are transported to some countries outside the borders of the Area of Freedom, Security and Justice. In this analysis, Amnesty International calls on the EU to take active steps to ensure that the shared values of the protection of human rights and the respect for the rule of law upon which the Area of Freedom, Security and Justice is built are ensured throughout that space and are not allowed to dissolve at the borders of the EU. For more than 40 years, Amnesty International has monitored the use of legislation designed to provide for the "security of the state" in all regions of the world including Europe. This is part of the organisation’s overall work in researching and publicising the effects on individuals when internationally agreed human rights rules and standards are broken, and holding states accountable to those standards. Often "suppression of terrorism" has been used as an excuse for laws and practices designed simply to stifle dissent and opposition. In many cases this has amounted to a "war" against political opposition of whatever kind, with the use of a repressive catalogue of violations of human rights including the right to life, the right not to be tortured, the right not to be detained arbitrarily and the right to a fair trial. Those affected frequently include the wider population who are innocent of any illegal activity. EU countries are not exempt from such examples of this broad use of security laws leading to violations of human rights. In regard to a number of individual EU Member States, anti-terrorism measures have been introduced ostensibly to deal with emergency situations. Some explicitly or implicitly involve derogating from human rights guarantees by limiting or suspending them. Amnesty International has raised particular concerns with regard to several Member States where the courts have had their jurisdiction curtailed through limitations on judicial review and even suspension of basic human rights safeguards such as habeas corpus(2). The EU however has remained resolutely silent on such questionable practices in its own Member States. Amnesty International recognises the right and indeed the duty of states under international human rights law to protect their populations from violent criminal acts. However, such measures must be implemented within a framework of human rights protection. The Universal Declaration of Human Rights was initiated by states in response to the widespread and serious abuses that some governments perpetrated on their own citizens and those of occupied or enemy countries during the Second World War. Human rights standards thus constitute a consensus by states of the minimum standards necessary to protect the safety and integrity of individuals from abuse of power. These human rights standards are binding obligations that apply to all persons under a state’s jurisdiction. They cannot be avoided simply by placing a person deliberately outside the jurisdiction. It is particularly important that the administration of justice is fair. Without the safeguards of the rule of law, including mechanisms to ensure accountability, action taken against criminal suspects may lead to serious violations of human rights, such as unfair trials, secret detention, detention without charge or trial, torture, "disappearance", and extra-judicial execution. The EU is committed to the construction of an Area of Freedom, Security and Justice based on a high level of mutual trust between the justice systems of Member States. In this context, it is for the EU to justify such trust and to facilitate cooperation between Member States by ensuring that adequate human rights safeguards are in place throughout the EU. This analysis will highlight areas which pose problems in the
context of judicial cooperation in the fight against terrorism in
the EU, and make recommendations of steps that could be taken within
the unique context of the EU to improve the protection of human
rights. While indispensable for providing a genuine Area of Freedom,
Security and Justice for all, these steps will ensure that the fight
against terrorism is effective by minimising the risk of abuses of
human rights and miscarriages of justice which tend to increase a
sense of alienation in sectors of society particularly affected and
to discredit the EU in its relations with third countries on this
issue. 1.2 The EU and its Member States The European Union has not been slow in responding to the threat of international terrorism even though its structure and the powers conferred on the EU by Member States create a unique and complex framework for measures in this field. The EU anti-terrorism roadmap(3), produced within weeks of 11 September 2001, covered a broad range of areas that could have an impact on the fight against terrorism and the root causes of terrorism, from criminal law initiatives to the safety of air transport to relations with third countries and aid. The areas covered by the fight against terrorism span the three "pillars" of the EU – that is:
The powers of the EU to act and the ways in which measures are taken vary considerably depending on which of the three pillars the subject matter is governed by. This analysis will concentrate primarily on EU measures taken under the third pillar in the field of judicial cooperation in criminal matters. It will also look at the interaction between extradition and asylum procedures. Many measures taken under the first and second pillars may have significant implications for the enjoyment of human rights (notably the right to privacy, the right to freedom of expression or association, the right to an effective remedy and the right to freedom from discrimination) or may imply an impact outside the borders of the EU. In the field of the CFSP, one of the distinguishing features of the EU approach to counter-terrorism is its failure to provide a strong critical voice in regard to abuses of human rights in the global fight against terrorism, in particular where such abuses are being perpetrated by EU allies such as the United States of America in relation to the treatment of detainees in Guantánamo Bay or allegations of torture. The scope of all these issues is too broad to be dealt with in a single report. Rather, the present document aims to examine those areas of competence and action where the EU bears direct responsibility for ensuring adequate protection of human rights in the context of countering terrorism. The measures taken in the intergovernmental field of judicial cooperation in criminal matters provide a focus for assessing the EU’s performance in protecting human rights within its borders. This applies both to EU-level activity and to the collective responsibility for the actions of Member States in relation to human rights such as the right to freedom from torture or other cruel, inhuman or degrading treatment, the right to liberty and the right to a fair trial that have formed the core of Amnesty International’s work over the past 40 years. Article 6 of the Treaty on European Union (TEU) provides that:
Article 7 TEU provides a mechanism whereby the EU can suspend certain membership rights relating to a Member State where the existence of a serious and persistent breach of the principles of Article 6 TEU or a risk of a serious breach of those principles is found in a particular Member State. These articles constitute the legal and political basis of the collective responsibility of the EU for the protection of human rights and fundamental freedoms throughout its territory. The EU is thus obliged to ensure that its own measures are in accordance with fundamental rights and also to identify and act upon a serious and persistent breach of fundamental rights or a clear risk of such breach in its Member States. Amnesty International has noted worrying trends in the EU in relation to the fight against terrorism. Disturbing legislative developments in Member States have led to incommunicado detention in Spain (4); the UK has derogated from Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 9 of the International Covenant on Civil and Political Rights (ICCPR) to allow for indefinite detention without trial and the use in court of secret intelligence evidence, potentially extracted through torture or other cruel, inhuman or degrading treatment. The Secretary-General of the Council of Europe(5) condemned UK anti-terrorist legislation (Anti-Terrorism, Crime and Security Act of 2001) following a judgement from the House of Lords that the legislation was incompatible with human rights(6). Amnesty International is aware of cases where Member States, the UK and Sweden, may have been complicit in the "extraordinary rendition" of suspects without due process to countries where they are at a grave risk of torture and a flagrant breach of their fair trial rights. Removals of people suspected of terrorism show a worrying tendency to reduce or ignore the rights of suspects, justified by the interests of swift procedures. Thus, serious risk is created of breaching human rights standards, including the absolute prohibition of torture and other ill-treatment, and the equally absolute principle of non-refoulement. Special procedures limiting basic rights such as the right to a lawyer that apply in some countries in "terrorist" cases are particularly worrying in the light of the often broad definitions of "terrorist offences" to which they apply. There is no effective remedy to contest inclusion on terrorist lists. Furthermore, racism and discrimination are a significant problem in Europe and Amnesty International is concerned that the fight against terrorism is fuelling discrimination by states and non-state actors against certain groups in society. Statements such as that by the UK’s Minister for Counter Terrorism, Hazel Blears, that Muslims must face the reality that the police would target them because of the threat from an extreme form of Islam (7) are very worrying and encourage discriminatory policing which exacerbates feelings of alienation in the Muslim population. This trend to equate terrorism with Islam risks undermining the EU’s commitment to fight racism and xenophobia. Despite these problems which appear across the EU, the EU itself has paid no more than lip service to the question of protecting human rights in the context of the fight against terrorism. In the rush to take action in the political climate following 11 September 2001, the key EU level measures aimed at combating terrorism in the criminal law sphere were drafted with little consideration being given to procedural safeguards or to legal certainty. The
negotiations on certain procedural rights for suspects in criminal
proceedings throughout the European Union(8) have included debates
about excluding terrorist suspects completely from the application
of procedural rights(9) to reflect current national practices in
some Member States, a suggestion which not only runs contrary to the
principle of the universality of human rights but potentially also
undermines the possibility of effective prosecutions and cooperation
between Member States to combat terrorism. 1.3 The broader international framework of counter-terrorism "While we recognise that the threat of terrorism requires specific measures, we call on all Governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that States strictly adhere to their international obligations to uphold human rights and fundamental freedoms" – Mary Robinson, UN High Commissioner for Human Rights, Walter Schwimmer, Secretary-General of the Council of Europe, and Ambassador Gérard Stoudmann, Director of the OSCE’s Office for Democratic Institutions and Human Rights on 29 November 2001(10). The risk to human rights in the current circumstances is heightened because there has been no strong international mechanism specifically responsible for monitoring emergency legislation and practices from a human rights perspective. The overarching international framework in response to international terrorism is that of the United Nations. Resolution 1373 of the UN Security Council, adopted on 28 September 2001 creates obligations on states to take a variety of measures aimed at cooperation on preventing terrorist acts and prosecuting the supporters of those acts. It also set up the Counter-Terrorism Committee (CTC) to monitor the implementation of the resolution and states are obliged to report regularly on the steps that they have taken. The Secretary-General of the UN has stated that:
However, while the UN High Commissioner for Human Rights has also insisted on the need to respect human rights while combating terrorism(12), any analysis of the protection of human rights was absent from states’ reporting to the CTC which has tended towards a view that while the respect for human rights is something to be borne in mind, in practice it is not at the core of work on counter-terrorism. Reality has belied this approach. Over the past year, Amnesty International has continued to note a negative impact on human rights from legislation and measures introduced by governments to counter terrorism in a range of countries. Under the banner of fighting the "war on terror", the US government has blatantly disregarded human rights and fundamental freedoms. Images of torture and ill-treatment of detainees in US custody in Iraq and other locations dramatically illustrated how human rights can be sacrificed in the name of security. Hundreds of foreign nationals remain in prolonged indefinite detention without charge or trial in Guantánamo Bay, in blatant contravention of international and US constitutional standards. Hundreds of people suspected of connections with the Taleban or al Qa’ida remain in long-term arbitrary detention in Pakistan as well as in US-controlled centres in Afghanistan. China has conveniently used the "war on terror" to justify its repression policies in the predominantly Muslim Xinjiang Uighur Autonomous Region to stifle Uighur identity. Until 2005, 11 men remained in high security detention in the UK under the Anti-Terrorism, Crime and Security Act 2001. In Morocco, Saudi Arabia, Tunisia, Yemen and other countries, scores of people have been arrested and arbitrarily detained in connection with suspected terrorist acts or links to opposition armed groups. In Kenya, counter-terrorism measures have resulted in detention without trial and unfair trials(13). It was only after several years of strenuous campaigning by human rights organisations that human rights began to be factored into the UN’s handling of counter-terrorism, with the appointment in 2004 of a human rights expert in the CTC as well as the appointment by the Commission on Human Rights of an independent expert(14). Mandated for one year, the expert reported to the Commission’s 2005 session concluding that there is a pressing need for monitoring under a single mandate that has a comprehensive overview of the relationship between human rights and counter-terrorism measures(15). This proposal was endorsed by both the UN Secretary-General and the High Commissioner for Human Rights, and resulted in the appointment by the Commission this year of a Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism. The new mandate will monitor counter-terrorism laws and practices for their compatibility with human rights and provide technical assistance to states. The Council of Europe, an organisation of which all EU Member States are also members adopted Guidelines on Human Rights and the Fight against Terrorism(16) on 11 July 2002 and Guidelines on the Protection of Victims of Terrorism (17) on 2 March 2003. Although most welcome, it became clear during the drafting process of these standards that while states for the most part were willing to codify their existing obligations in these two sets of guidelines, they did not use the opportunity presented to set down standards which would result in a strengthening or creation of additional safeguards. The Council of Europe’s Convention on the Prevention of Terrorism, adopted on 3 May 2005(18), however, shows a worrying trend towards the extension of the notion of terrorist activity to areas which may be open to abuse by Member States curtailing the right to freedom of expression(19). The OSCE’s Office for Democratic Institutions and Human Rights appointed a Counter-terrorism and human rights coordinator in an attempt to ensure that the protection of human rights is not lost in the implementation of UN measures in the OSCE region. Overall, there are signs of an increasing recognition of the crucial role of the protection of human rights as an intrinsic part of the fight against terrorism which goes beyond the rhetoric of "no security without human rights". Amnesty International is encouraged by the inclusion in the recommendations in the Madrid Agenda arising from the Madrid Summit on Democracy and Terrorism (Madrid 8-11 March 2005) of a section on confronting terrorism:
While international efforts to combat terrorism have focused on the need to enhance cooperation between states, little, if any, attention has been given to the effective inclusion of human rights protection as a crucial element in that cooperation. International human rights obligations do not stop at borders and a failure to respect human rights in one state undermines its effectiveness in the international effort to cooperate to combat terrorism. The trend towards unorthodox methods of cooperation that blur the lines between human rights and humanitarian law or bypass legal methods altogether risks turning borders into a "no man’s land" in terms of human rights protection and making a mockery of international frameworks to ensure human rights and the rule of law. As yet, international organisations have failed to take concrete steps to ensure that international human rights standards and obligations do not dissolve at borders. The EU is in a unique position to begin to close the gap between human rights theory and counter-terrorism practice. 2. The EU as a separate legal framework In a global environment where there is an increasing tendency to categorise certain acts as "terrorist" and to base levels of cooperation between states and types of legislation on this categorisation it is important to know precisely what is meant by "terrorism". The consequences of an offence being categorised as "terrorist" can be very serious in terms of limitations on certain rights. For example, in some Member States, the classification of proceedings as relating to "terrorism" can result in curtailment of the right of access to a lawyer, inclusion on public lists identified as a terrorist, invasion of privacy, the use of secret evidence and incommunicado detention. When states cooperate with each other on counter-terrorism, the difference in treatment and procedures in "terrorist" cases as well as very different approaches to the classification of groups as "terrorist" makes it crucial for states to understand what each one means by the term(21). While the existence of legislation and special procedures relating to "terrorism" demand a clear definition of terrorism to ensure legal certainty and the effectiveness of a counter-terrorism strategy, what is not clear is the added value or justification of treating "terrorism" as an issue which is separate from the underlying criminal acts to be prosecuted such as murder or kidnapping which can be found in the regular criminal justice systems of Member States. While the general threat of terrorism is put forward as a justification for the limitation of fair trial rights and intrusions into private life, among other things, there has been no serious discussion as to whether these limitations are in fact necessary in relation to terrorism as opposed to other forms of serious violent and/or organised crime. The right to a fair trial, for example, is a fundamental concept of
justice and the rule of law, its function being to protect against
miscarriages of justice which are prejudicial both to the
individuals concerned and to society as a whole. It is hard to see
what benefit there can be in increasing the risk of miscarriages of
justice in highly sensitive terrorism cases by limiting the right to
a fair trial. A miscarriage of justice not only gives impunity to
the real perpetrators of acts of terrorism but also undermines the
public faith in the state’s ability to guarantee freedom, justice
and security. It may also alienate minorities who are perceived as a
higher "risk factor" for generating terrorist activity and who are
therefore more likely to suffer from potential abuses of human
rights connected to the fight against terrorism. 2.1 The definition of terrorism The international community has found it very hard in the past to come up with a consensus on what exactly is meant by "terrorism" due to ideological clashes between states. Amnesty International raised the definition issue in its comments on the draft Council of Europe Convention on the prevention of terrorism (22). As adopted on 3 May 2005(23), the Convention requires states parties to criminalise provocation of and recruitment and training for terrorism. It does however not include a precise definition of terrorism for the purpose of the treaty, thus effectively creating subsidiary offences while the primary offence of terrorism remains undefined. While existing UN conventions refer to terrorism, they prohibit certain crimes without defining terrorism as such. The UN High Level Panel on Threats, Challenges and Change in December 2004 suggested the following definition of terrorism be adopted:
The EU Council Framework Decision on combating terrorism(25), however, which was agreed in record time in December 2001 is broader than this, including in the acts covered "causing extensive destruction to a government or public facility, including an information system, a fixed platform located on a continental shelf, a public place or private property likely to endanger human life or result in major economic loss"(26); and a threat to commit any of the acts listed in the Framework Decision(27), thus extending the notion of terrorism beyond actual violent acts designed to cause death or serious bodily harm or attempts at such acts. The Framework Decision on combating terrorism was one of the key elements of the EU’s response to 11 September 2001 along with the European Arrest Warrant (discussed below). At the time of negotiation it was felt that a common definition of terrorism was necessary to ensure effective cooperation between Member States to combat terrorism as some Member States did not have "terrorism offences" as such in their legislation and this undermined the possibilities for extradition or other forms of judicial cooperation which required double criminality (that is that the offence concerned is an offence both in the requesting and requested country). The development in parallel of the European Arrest Warrant and subsequent mutual recognition instruments(28), however, has seen the abolition of the principle of double criminality in relation to terrorism in the EU so it may be asked what practical added value the Framework Decision on combating terrorism now has on EU level cooperation in counter-terrorism. During the negotiations of the Framework Decision on combating terrorism, a number of Member States, as well as NGOs including Amnesty International(29), raised concerns that the definition contained in the Commission proposal was not sufficiently precise as to guarantee legal certainty and that the breadth of the proposed definition could threaten the right to freedom of association and legitimate protest. Requiring criminalisation of "terrorist" acts, it allowed for prosecution for offences such as "unlawful seizure of or damage to state or government facilities, means of public transport, infrastructure facilities, places of public use, and property"(30), and "promoting of, supporting of or participating in a terrorist organisation"(31). Without clearly defining the terms this could lead to criminalisation of activities which are unrelated in any way to acts of violence. In response to some Member States’ concerns that the still relatively broad definition finally adopted would threaten the right to legitimate protest, a declaration(32) attached to the Framework Decision provides that the Framework Decision "should not be understood to criminalise on terrorist grounds persons who exercise their legitimate right to manifest their opinions, even if they commit criminal offences while exercising this right"(33). This declaration though, remains ambiguous, has no legal status or effect and does not cure the vagueness of the definition itself. In addition, there are provisions relating to human rights in recital 10 of the Preamble and Article 1 (2) of the Framework Decision that stipulate that the measures provided for in the Framework Decision "shall not have the effect of altering the obligation to respect fundamental rights or freedoms", such as the right to strike, freedom of assembly, of association or of expression. However, the vagueness of these provisions and non-binding effect of the Preamble mean that they do not resolve the underlying problem of lack of legal certainty. Framework Decisions are binding on Member States as to their effect but leave the form of implementation up to each individual Member State. They can only set minimum standards regarding substantive criminal law, so Member States are free to diverge from those standards. In the case of the Framework Decision on combating terrorism, some Member States already had their own national legislation that went further than the Framework Decision and therefore implementation required little change to the law. Some of those Member States that did not previously have a definition of terrorism in their national law, however, have transposed the Framework Decision almost exactly into their national legislation thus failing to remedy the problem of the vague definition(34). The Framework Decision contains nine specific acts mostly concerning attacks on persons or weapons-related acts although some are less clearly related to violence(35). The act committed must fall under one of three categories of objectives in order to qualify as a "terrorist act". Those objectives are:
The definition contained in the Framework Decision on combating terrorism is important in that it establishes the parameters for other counter-terrorism initiatives at EU level such as the establishment of lists of organisations and individuals involved in terrorism (see below). While this definition, vague as it is, exists at EU level, the development of the European Arrest Warrant (EAW) has further exacerbated the lack of legal certainty in the definition of "terrorism" in practice. As the EAW removes the requirement for double criminality in relation to "terrorism" and membership of a proscribed organisation, the definitions which apply in the application of the EAW are those which apply in national law, not commonly agreed definitions(37). National definitions are thus extended across the EU without a clear picture of what those definitions might be. The Framework Decision on combating terrorism establishes a basic set of acts and objectives, but Member States are not prevented from going further than these acts and objectives in their national legislation. If a Member State qualifies a particular organisation as a "terrorist" organisation whether or not it participates in the acts contained in the EU definition, then membership of such an organisation could, under the law of that Member State, be considered a terrorist offence for which it could issue an EAW. The requested state would be obliged to surrender the person even if the activities of the organisation in question are not considered to be terrorist in nature or illegal in that state, as it is in fact not able to question the nature of the offence or to refuse to surrender on that basis(38). The vagueness of the definition contained in the Framework Decision on combating terrorism is primarily of concern in that it provides a basis for further measures such as the establishment of terrorist lists. In practical terms it must be for Member States to ensure that their implementation of the Framework Decision is sufficiently clear to cure the lack of legal certainty in the Framework Decision itself. The EU cannot legitimately base mutual recognition instruments for judicial cooperation on mutual trust where it is unclear whether national definitions of terrorism which, due to the erosion of the principle of double criminality, now may be applied across the whole EU territory, are in compliance with international human rights obligations. If it is to provide the basis for judicial action, prosecutions and international cooperation, a definition of terrorism must be sufficiently clear as to provide legal certainty. Article 7.1 of the ECHR on "no punishment without law" states that:
The European Court of Human Rights clarified this provision in the Kokkinakis case:
Amnesty International is concerned that the EU definition of terrorism as set out in the Framework Decision on combating terrorism does not comply with this requirement. What is more, the abolition in mutual recognition instruments such as the EAW of double criminality in relation to terrorism, without a clear picture of the kind of acts classified as terrorist offence in the laws of Member States, undermines the principle of legal certainty in the Area of Freedom, Security and Justice. Amnesty International calls on Member States to review their
national legislation to ensure that transposition of the EU
Framework Decision on combating terrorism corrects this problem. The
Commission should compile a report of Member States’ definitions of
terrorism with a view to ensuring that they are sufficiently clear
and precise as to provide legal certainty and to exclude the
possibility of counter-terrorism legislation being used to quash
legitimate protest and dissent which is necessary in a society based
on democracy, human rights and the rule of law such as the EU
purports to be. The difficulties encountered in identifying what terrorism is become more acute when people or organisations are identified as "terrorist". In a climate where identification as a "terrorist" has such serious implications for the enjoyment of rights (in particular on the right to freedom of assembly and association, freedom of expression, the right to respect for private and family life, the right to basic public services and on the right to liberty and the right to a fair trial) it is crucial that such identification must be based on clear evidence that is capable of being challenged. The ECHR in Article 13 sets out the right to an effective remedy:
Similar provision is found in Article 47 of the EU Charter of Fundamental Rights. In the EU it is not clear at all what remedy a person or organisation has to challenge their publication in the Official Journal of the European Communities as a "terrorist" and to receive reparation for the damages that they may suffer as a consequence of that inclusion, whether at national or at EU level. In implementing UN Security Council resolution 1373 the EU introduced a series of legislative measures which created EU terrorist blacklists building on the UN lists. The EU lists are comprised of "persons who commit, or attempt to commit, terrorist acts or who participate in, or facilitate, the commission of terrorist acts" and "groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities"(40). The definition of terrorism in these instruments is the same as that in the EU Framework Decision on combating terrorism(41), although it goes beyond that definition in that it is not limited to acts by or against EU citizens/residents or on EU territory.
On 27 December 2001 a number of measures were adopted by the Council within the context of the fight against terrorism: Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism(42), Council Decision 2001/927/EC establishing the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001(43), Council Common Position 2001/930/CFSP on combating terrorism(44), Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism(45). Once again, the haste and timing of the adoption of these instruments along with the choice of instrument meant that there was little opportunity for scrutiny or debate on the content or potential impact of the measures. The European Parliament at point 2 of its resolution on this legislation(46):
Of particular concern is the list contained in Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism(47) which creates obligations on states in relation to those on the list, for example for the freezing of assets or for police and judicial cooperation with other Member States. It is a piece of legislation whose legal complexity within the framework of the EU makes it difficult to contest through judicial channels. The Common Position is drawn up under the EU’s Common Foreign and Security Policy (CFSP, the second pillar of the EU), and as well as provisions on the freezing of assets which fall under Community law (first pillar) it has an effect relating to judicial and police cooperation between Member States (justice and home affairs, the third pillar). The second and third pillars of the EU are primarily intergovernmental in character. Decisions taken by Member States under the CFSP are not subject to judicial review within the EU(48). Under the third pillar (JHA), issues may only be referred to the European Court of Justice (ECJ) as a request for a preliminary ruling from Member States which have accorded the ECJ competence in this field(49). The European Parliament again in its resolution on this legislation(50):
Inclusion on the list requires unanimity of Member States but once on the list, a decision to remove a group or person from the list also requires all Member States to agree to removal. The evidence provided to justify inclusion, or the details of which Member State put forward a particular organisation or person, or what was discussed, are not made public. Any approach to seek removal from the list through national channels is therefore made practically impossible. The categories of persons or organisations contained in the list
annexed to Common Position 2001/931/CFSP (and its later updates) can
be divided roughly into two different types – organisations and
persons related to terrorism internal to the EU and those related to
"international terrorism" external to the EU. The effect of the
legislation on the two groups is quite different in terms of the
potential practical and legal impact on the enjoyment of fundamental
rights. 2.2.1 Groups and individuals external to the EU In addition to an obligation to enhance police and judicial cooperation in relation to many of the groups and individuals included on the list, provisions relating to asset freezing apply to many as well and the consequent financial implications for them mean that there is a Community (first pillar) effect which gives the ECJ a degree of competence on related issues. As in relation to the UN lists, Amnesty International is concerned that the manner in which numerous individuals have been placed on such lists with extremely short notice and without the possibility of review or appeal raises indeed, as the UN High Level Panel suggests in the case of "terrorist lists", "serious accountability issues and possibly violate fundamental human rights norms and conventions" (recommendations 40 and 52). One case currently before the ECJ is that of the Philippine national José-Maria Sison(51) who was included in the list adopted under the terms of Regulation 2580/2001 in decision 2002/848/EC of October 28, 2002. Mr Sison contests his inclusion in the list and any link to terrorism. The impact of inclusion on the list was that Mr Sison, resident in The Netherlands, among other things had his social benefits terminated and his bank account frozen. A request from his lawyers to the General Secretariat of the Council of the EU for information on the justification of his inclusion on the list was refused and this decision was upheld by the Court of First Instance (CFI) that rejected the application for access to documents on 26 April 2005(52). The inability to gain access to documents relating to the decision
to include a person on the list has the effect of undermining the
practical possibility of challenging that inclusion. It is
impossible to contest inclusion if the reasons for it remain
unknown. Amnesty International is very concerned that the complexity
of EU law may create a smokescreen to prevent the effective
protection of human rights. 2.2.2 Groups and individuals internal to the EU Some of the individuals and groups included in the annexe to Common Position 2001/931/CFSP are identified by an asterisk as only being affected by enhanced judicial and police cooperation measures and not by other provisions in the Common Position (Article 4 of the Common Position). It is those affected only by Article 4 who are, paradoxically, in the most complex legal position and the individuals affected are, in fact, all citizens of the European Union and seem to sit strangely in an instrument relating to common foreign and security policy. The European Court of Human Rights refused admissibility for a complaint from two Basque Groups, Segi and Gestoras Pro Amnistía included on the EU list in a decision of 23 May of 2002(53). The Court side-stepped the issue of whether national or EU remedies had been exhausted, thus in effect failing to identify whether or not such remedies existed in the first place and refused admissibility on the basis that the organisations concerned could not establish their status as victims without demonstrating that they had actually been affected by the alleged violation of their rights as a result of their inclusion on the EU list. The Court took the view that their rights and freedoms would not be affected until they were actually arrested and brought before a national court at which point they would be able to raise the question of their inclusion on the EU list. It could be argued that this is a very narrow view of the effect of the ECHR and of the status of a victim, and a rather broad view of the possibility to effectively challenge EU law through domestic criminal justice systems. An order of the Court of First Instance of the European Communities of 7 June 2004(54), rejecting the admissibility of a claim by Segi, clarifies the unsatisfactory legal status of these lists by ruling that the Court has no competence in this area. The order states that it is probable that the applicants will have no effective remedy either before national or community jurisdictions to contest the inclusion of Segi on the list of persons, groups or entities involved in terrorism. This situation is exacerbated by the use of a Common Position as a basis for the list rather than, for example, a Decision which would have potentially given the Court competence. It goes on to state that the absence of an effective remedy will not, in itself, provide a basis for community competence within the EU judicial system based on the principle of the competence of attribution resulting from Article 5 TEU(55). The order also addresses the legal weight of the Council Declaration annexed to the Common Position 2001/931/CFSP that in the event of any error as to the persons, groups or entities included in the list the injured party would have the right to judicial reparation. In finding that the declaration does not provide for either the means of recourse to justice or the conditions for starting such a procedure, the court found that, in any event, the declaration could not envisage a procedure before the community jurisdictions as it would run counter to the competence given to the community courts by the Treaty on European Union(56). The case is now pending for appeal before the ECJ(57).
The very choice of instrument to give effect to UN Security Council Resolution 1373 creates a virtually impenetrable level of secrecy around inclusion on the lists by excessively limiting parliamentary scrutiny of the measures and by effectively removing the possibility of judicial scrutiny of individual decisions. The Council declaration to the effect that any party included in error on the lists should have the right to seek reparation pays lip service to the principle of an effective remedy without providing one in fact or in law. Amnesty International believes that a conscious effort should be made to counter the impression of Member States collectively or individually hiding behind the complexity of the EU legal framework to avoid their obligations to respect human rights. Cases involving judicial cooperation between Member States relating to groups included on the list also show a lack of coherence which gives rise to a suspicion that Member States are not, in fact, entirely in agreement as to the inclusion of groups on the lists or as to the desirability of cooperating to combat such groups’ activities. In the case of Amaya Recarte(58) the French Cour de Cassation upheld the decision of the Cour d’Appel de Pau and refused to surrender a spokesperson for Segi to Spain on the basis that part of the alleged offence (related to organising demonstrations for Segi) had been carried out in France(59). While the French authorities based the decision for refusal to surrender to Spain on grounds of jurisdiction, Segi is not an illegal organisation in France and no moves have been made to prosecute the alleged offences in France – where they do not amount to offences. It would seem therefore that, while France must have agreed to the inclusion of Segi on the list (as such a decision requires unanimity), in practice France does not consider their activities to amount to terrorist offences that require prosecution. This discrepancy calls into question not only the consistency of states’ practices but also the legitimacy of the lists themselves(60). Amnesty International calls on the EU to review the legislation concerning terrorist blacklisting to ensure that there are clear procedures for judicial review of the inclusion of individuals or groups on the lists, as well as for reparation for damages in case of wrongful inclusion impacting on the rights of those concerned. 3. Prosecuting terrorists across borders: extradition and surrender between EU Member States In the international approach to combating terrorism, it has become increasingly clear that while prosecutions and investigations may cross borders, adequate protection of human rights does not go with them. The crossing of borders in terms of preventing, investigating and prosecuting terrorism-related offences can be divided into two parts in relation to the EU: cooperation between Member States and cooperation with third countries. Two major planks of the EU roadmap to combat terrorism post 11 September 2001 were developed at EU level: the European Arrest Warrant adopted in 2001 and the EU-US agreements on extradition and mutual legal assistance concluded in 2003. Aside from these two EU-level developments, there has been a worrying trend in the methods for removing terrorist suspects from EU jurisdictions through deportation, "rendition" and even abduction. The two categories raise quite different issues for EU policy and the protection and promotion of human rights. On the one hand, cooperation between Member States can only be facilitated by ensuring that there is a level playing field of rights protection, in particular in relation to fair trial and other procedural rights, across the territory of the EU. It is only on this basis that the principle of mutual trust can develop, enhancing cooperation based on a well-founded belief that miscarriages of justice are unlikely within the European judicial space. On the other hand, cooperation with third countries must not result
in an erosion of the level of rights protection found within the EU.
How can one feel a sense of "a high level of security" where people
may be taken off the street and flown out of the jurisdiction of EU
Member States without even a nod to due process? The idea of an Area
of Freedom, Security and Justice seems particularly thin when the EU
is not prepared to use its external borders as a means of ensuring
that the rights and principles enshrined in its Treaty are applied
to all within its territory, including those who may be facing
extradition, expulsion or other forms of removal from that
territory. 3.1 Extradition between EU Member States Extradition between EU Member States prior to the coming into force of the European Arrest Warrant (EAW) on 1 January 2004 was governed by traditional rules on extradition, principally through the Council of Europe’s 1957 European Convention on Extradition. In practice, final decisions on extradition were made by the executive rather than by a judicial authority. Where the ultimate decision was taken on a political level, the desire for reciprocity meant that it was rare that a Member State would give much weight to arguments that an extradition to another EU Member State would result in a breach of human rights. Blockages to extradition were primarily on the question of differences in substantive criminal law or on the fact that most EU Member States did not extradite their own nationals, rather than on concrete human rights issues. Occasionally, however, judicial review of cases highlighted difficulties relating to the protection of human rights. Two extradition cases between EU Member States just prior to the coming into force of the EAW, however, do show that a failure to respect human rights can undermine efficient cooperation against terrorism even within the EU. The first case of Rachid Ramda(61) in connection with the 1995 Paris metro bombing involved a judicial review by the UK High Court of the Home Secretary’s decision to extradite the suspect; this resulted in a delay of the determination of the case which has now been ongoing for nine years. The second of Irastorza Dorronsoro(62) concerning an ETA suspect was a decision by the French Court of Appeal in Pau to discharge the requested person. Both therefore reflect judicial rather than political decisions. The facts of these cases turned on the admissibility of evidence allegedly extracted from a third party through torture or other ill-treatment which could result in a flagrant denial of the right to a fair trial of the extraditee under Article 6 ECHR if he were to be returned and/or would be contrary to a state’s obligations under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The principle underlying these cases remains unchanged in the EAW scheme which, without legislation to address the underlying issue of a lack of mutual trust in procedural guarantees, is likely to face similar difficulties in such cases. These cases demonstrate two barriers to mutual trust between EU
Member States: In order to ensure that EU Member States can cooperate effectively
with each other to combat terrorism while respecting the rights and
principles enshrined in Article 6 TEU and upon which the Area of
Freedom, Security and Justice is built, they will need to address
these issues at an EU level through establishing EU standards in
relation to procedural rights from the start of criminal proceedings
and by addressing the question of the admissibility of evidence in
accordance with the jurisprudence of the ECHR. 3.2 The European Arrest Warrant The Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States(63) (EAW) is not of itself a threat to the protection of human rights. Rather, in an Area of Freedom, Security and Justice bound by the principles of the rule of law and respect for human rights, the EAW system should allow judges to guarantee international human rights obligations and refuse to surrender a person where there is a danger that the requesting Member State will not be able to guarantee the requested person’s human rights. The EAW had been in preparation for some time when the events of 11 September 2001 propelled it to becoming the flagship measure of the EU’s counter-terrorism response, its adoption completed in a matter of months. The main changes in extradition or surrender procedures brought in by the EAW are: · the abolition of double criminality; The simplification of the rules on surrender brought in by the EAW do not, however, have the effect of limiting Member States’ obligations under international human rights law and, in particular, the ECHR. Article 1(3) of the EAW makes this clear when it states that:
The obligation not to extradite a person to a state where there is a serious risk of a breach of that person’s rights is contained in a number of international instruments. The EU Charter of Fundamental Rights states that "no one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment" (Article 19.2). The European Court of Human Rights has established that, where extradition to a state would pose a serious risk of that person’s human rights being violated, in particular the right to freedom from torture or other cruel, inhuman or degrading treatment contrary to Article 3 ECHR, or a flagrant denial of the right to a fair trial contrary to Article 6 ECHR, the extraditing state may be responsible under the ECHR for human rights violations which the individual suffered following extradition(64). The Council of Europe’s Guidelines on Human Rights and the Fight Against Terrorism adopted in 2002 reflect this jurisprudence. The UN Human Rights Committee, in relation to the International Covenant on Civil and Political Rights (ICCPR) has also noted that "if a State party extradites a person within its jurisdiction in such circumstances, and if, as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party may be in violation of the Covenant"(65). Paragraphs 12 and 13 of the preamble to the EAW state that:
It is crucial to the working of the EAW and to the credibility of the Area of Freedom, Security and Justice, that these obligations must be respected in practice and not simply in principle. In order to make sure that human rights are respected in the application of EU legislation based on mutual recognition by judicial authorities it is imperative that judicial authorities across the EU are aware of their international human rights obligations in this regard. The advent of the EAW and the fact that requests need no longer be dealt with centrally may well mean that many judges who have never previously had cause to come into contact with EU law or with the law relating to international cooperation in criminal matters will find themselves having to grapple with complex issues that have significant implications for a person’s human rights. If mutual recognition based on mutual trust is to work it will require not only the training of judges and exchange visits so that judges can become acquainted with each other’s justice systems, but also training in human rights law in general and, in particular, the human rights obligations that apply in such cases. Although the main challenges to the EAW so far have been with regard to the extradition of nationals of Member States(66), the reluctance in practice to surrender nationals may be a reflection of other issues, in particular the suspicion that the laws and/or procedures that would be applied in the requesting state would not come up to the standards applied in the requested state. Human rights are universal and each state is duty bound to respect and protect the rights of these persons in its territory and subject to its jurisdiction. Thus, the nationality of a person is not relevant to the obligation not to extradite where there would be a risk of a breach of human rights on surrender. Cases involving own nationals, however, tend to give rise to greater public interest and debate which can provoke greater reflection on the issues at hand and bring to light a more general mistrust of other judicial systems. Amnesty International urges the European Commission to carefully
monitor the implementation in practice of the European Arrest
Warrant, taking note of cases that raise questions of potential
breaches of human rights or due process and addressing the issues
that they highlight through recommendations or legislation to
rectify the situation at EU level by raising standards across the
territory of the EU. Amnesty International further recommends
strongly that the EU focus on human rights training for judges as a
core element of training through the European Judicial Training
Network and exchange programs. 3.3 Procedural rights for suspects and defendants At the time of agreement on the EAW in December 2001, the Commission promised that concerns about differing standards in the protection of fair trial rights in criminal proceedings would be met with a proposal on EU minimum standards in procedural rights for suspects and defendants. Amnesty International was active in the consultation leading up to the publication of a Green Paper followed by a proposed Framework Decision on certain procedural rights for suspects and defendants in criminal proceedings(67) (the proposal) in April 2004. Amnesty International welcomed the proposal as the first step towards addressing the rights of defendants within the context of the Area of Freedom, Security and Justice(68). However, it considers the scope and level of the standards of procedural rights contained in the proposal disappointing and is concerned that negotiations within the Council Working Group on Substantive Criminal Law (DROIPEN) may lead to a further dilution of those standards. If legislation in this field is to have added value to already existing obligations under the ECHR and the EU Charter of Fundamental Rights, it must be binding on Member States, capable of enforcement and sufficiently precise so as to ensure homogeneity of application across the EU. Care must also be taken that minimum standards agreed at EU level are not lower than those set by existing international standards, and that such minimum standards are interpreted in the light of the evolving jurisprudence of the European Court of Human Rights. This will ensure that EU minimum standards do not quickly become obsolete or undermine the level of rights protection afforded by the ECHR. In September 2004(69) Amnesty International raised concern over the wording of paragraph 8 of the proposal’s preamble which indicated an intention to limit some of the application of the fundamental rights included in the draft Framework Decision in relation to persons suspected of or charged with certain types of crime, and, in particular, terrorism-related offences. This concern was heightened when discussions in the Council DROIPEN(70) raised the prospect of excluding terrorist offences from the scope of the Framework Decision altogether by including a provision in the text of the Framework Decision itself to that effect rather than in the preamble. Amnesty International was therefore pleased to note that a majority of delegations and the Commission expressed the view that a suggestion to exclude "from the scope of the Framework Decision the investigations on terrorist offences prior to the point where the suspect is charged with an offence" would be incompatible with Article 6 of the ECHR(71). In the context of future discussions on this point, Amnesty International underlines the importance of ensuring that terrorist and organised crime offences are included in the scope of the proposed Framework Decision. The proposal was initially promised as a necessary complement to the European Arrest Warrant, itself an instrument put forward as a key element in the fight against terrorism, and it would appear not only incoherent and inconsistent within that context, but indeed objectionable to exclude from its remit the very type of offences that it was expected to tackle. Proceedings against terrorist suspects are often precisely those that are most susceptible to violations of human rights or to allegations of such violations. Miscarriages of justice arising from violations of human rights in terrorism cases not only create the potential that the real perpetrators of terrorist acts remain at liberty to commit other acts of terrorism, but they also have a significant impact on public confidence in the rule of law. In turn this can lead to a sense of alienation within certain sectors of society that feel as though they are being unfairly targeted in the fight against terrorism. National legislation and practice in this field vary significantly between Member States. The breach or risk of breach of human rights in proceedings against terrorist suspects in Member States is a very real phenomenon that can lead and has led (72) to a breakdown in cooperation which is symptomatic of the absence of mutual trust. Cases where judicial cooperation has broken down as a result of (a risk) of violation of human rights have highlighted problems both in the investigatory stage and in the trial stage of proceedings against terrorist suspects(73). An absence of trust seems also to be reflected in judicial authorities’ reluctance to surrender (or to prosecute upon refusal of surrender) their own nationals requested for terrorism-related offences by other Member States(74). Mutual trust can only be built upon genuine and enforceable common standards of protection of and respect for human rights in the fight against terrorism. The proposed Framework Decision has been drawn up in the context of judicial cooperation within the EU and the legal base for this proposal is cited as Article 31(1) of the Treaty on European Union which allows the EU to develop common action so as to ensure compatibility in rules where necessary to improve cooperation(75). In particular, the proposed Framework Decision aims to establish common standards which will facilitate the development of the principle of mutual recognition by ensuring that the notion of a level playing field for the protection of fair trial rights within the Area of Freedom, Security and Justice is a reality. The key to the legal basis for legislation in this area lies in its ability to adequately address problems identified in judicial cooperation and, in particular, to enhance the mutual trust between Member States which is required for the principle of mutual recognition. In order to meet that requirement, legislation must make a concrete and discernible improvement to the protection of the rights of suspects and defendants in criminal proceedings across the EU. Judicial cooperation in criminal matters between EU Member States is commonly used to combat serious forms of criminality such as terrorism, trafficking in human beings and other forms of serious and organised crime. To remove this type of crime from the scope of the proposed Framework Decision would not only diminish the credibility of the EU’s commitment to the protection of human rights in the fight against terrorism, but would undermine the very object of the proposal itself and so put its legal base into question. The Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism states that "All measures by States to fight terrorism must respect human rights and the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate judicial supervision"(76). Any restrictions on the right of defence or on communication while in detention must be necessary, strictly proportionate to their aim and must not undermine the substance of procedural rights(77). Removing terrorism-related offences from the scope of the proposed Framework Decision could result in arbitrariness in measures taken to fight terrorism within the EU. The limitation of fundamental rights such as the right of access to
a lawyer, in particular in terrorist cases, is not a theoretical
problem in the EU. Amnesty International is concerned about the law
and practice in a number of EU Member States, particularly through
the application of specific legislation aimed at combating
terrorism. Under law no. 2004-204 of 9 March 2004, a 96-hour special custody regime was extended to a wider range of offences. Moreover, under this law, persons suspected of terrorism or drug trafficking can be held incommunicado for the first 48 hours without access to a lawyer. The Council of Europe’s Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) had on previous occasions, including during their visit to France in 2003(78), expressed its concern to the French authorities about the – then applicable - law which denied access to a lawyer for the first 36 hours in police custody. The CPT stated that all detainees should have access to a lawyer from the outset of custody, as well as the right to the presence of a lawyer during police questioning, which is not currently permitted(79). Concern has also been raised about the lack of prompt access to a judge or lawyer and the incommunicado detention of persons suspected of terrorism-related offences in Spain. Among other things, such suspects can be held in police custody for five days before being brought before a judge. Furthermore, the judge can extend the period of incommunicado detention for up to 13 days. During incommunicado detention a suspect is denied access to a lawyer of their choice. In addition, although the suspect is provided with an appointed legal aid lawyer, the role of the lawyer is so restricted as to deny the suspect‘s right to legal assistance. The suspect is denied that right at the outset of detention, and the lawyer is only present when the suspect gives an official police statement, which may be several days after detention. Furthermore, throughout this time, before and after statements are given, as well as during hearings before judges, the legal aid lawyer may not communicate in private with the detainee. Moreover, the judges can impose secrecy (secreto de sumario) on the investigation and on judicial proceedings, either in whole or in part. Under secreto de sumario, suspects and their lawyers are denied access to critical information regarding the charges or the evidence, and this denial could be maintained until the investigation phase of the legal process is almost concluded(80). Thus the suspect is denied any effective legal assistance throughout this period of detention. In February 2004 the UN Special Rapporteur on Torture issued a report on a visit to Spain in October 2003(81). The aim of the visit was to study the various safeguards for the protection of detainees in the context of anti-terrorism measures. The Rapporteur noted that "the degree of silence that surrounds the subject and the denial by the authorities without investigating the allegations of torture has made it particularly difficult to provide the necessary monitoring of protection and guarantees"(82). He concluded that "in the light of the internal consistency of the information received and the precision of factual details … these allegations of torture cannot be considered to be fabrications". Although not a regular practice, "their occurrence is more than sporadic and incidental"(83). Many of the UN Special Rapporteur’s findings were in accordance with those of Amnesty International, as well as with those of the UN CAT and the Council of Europe’s CPT(84). He recommended that the Spanish government draw up a comprehensive plan to prevent and suppress torture and that the incommunicado regime be abrogated. However, the Spanish government made a number of objections to the report and maintained that "every single accusation of torture or ill-treatment is investigated" and that "the assertions made by the Rapporteur concerning the passivity and permissiveness of the legal and administrative authorities are completely unacceptable". It refused to introduce safeguards into the incommunicado regime, as advocated by a number of international bodies, on the grounds that they were not necessary, but there are signs that this may be reconsidered. Under Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), which expired in March 2005(85), the Secretary of State was able to certify non-UK nationals as "suspected international terrorists" and detain them indefinitely without charge or trial. The Special Immigration Appeals Commission (SIAC) was a judicial procedure which reviewed the executive decision. Under this procedure, the SIAC heard secret evidence put forward by the intelligence services in secret hearings. The detainee would be allocated a Special Advocate, who was a security cleared lawyer, and who would have access to the secret evidence and the secret hearings. However, the Special Advocate was not allowed to communicate with the detainee about the secret evidence, nor receive instructions from the detainee. Thus the detainee was denied the right to a defence. The Chairman of the parliamentary Constitutional Affairs Committee stated in April 2005: "The Special Advocate system lacks the most basic features that make for a fair trial"(86). Amnesty International urges Member States and the Commission to ensure that terrorist offences and other forms of serious and organised crime are kept fully within the scope of the proposed Framework Decision on certain procedural rights for suspects and defendants in criminal proceedings in the EU. Any decisions to limit rights in particular cases should be the subject of judicial scrutiny to ensure that they are not applied arbitrarily and that they are proportionate and clear in their aim in order to ensure legal certainty. If the standards of procedural rights set out in the ECHR and the jurisprudence of the European Court of Human Rights cannot be met in the negotiations on the proposed Framework Decision, Amnesty International would urge the Commission to withdraw the proposed Framework Decision in its entirety rather than to establish standards that are below the existing human rights obligations of Member States. The subject of the admissibility of evidence in criminal proceedings has not yet been addressed by the European Commission although Amnesty International understands that a green paper on the presumption of innocence is expected from the Commission before the end of 2005 and another green paper on the gathering and admissibility of evidence has been scheduled for June 2006. The problem that had been identified in both the UK case of ex p. Ramda(87) and in the French case of Irastorza Dorronsoro(88) was the risk that evidence that had allegedly been extracted through torture or other ill-treatment would be admissible as evidence in criminal proceedings. The ex p. Ramda judgement based its arguments on the ECHR and the fact that if evidence extracted by torture or ill-treatment was admissible in the determination of the charge against Ramda he would not have a fair trial in accordance with Article 6 ECHR. The Irastorza Dorronsoro decision was based on Article 15 of the UN Convention against Torture(89) which states that:
The French court took the view that such evidence was the only evidence upon which the request for extradition had been made and therefore refused extradition. Following the attacks of 11 September 2001, the UN CAT issued a statement condemning the atrocities in the strongest terms, and reminded State parties of the non-derogable nature of the obligations undertaken by them in ratifying the Convention:
The application of Article 15 of the Convention against Torture is not limited to statements made by the person who was alleged to have been tortured, or to cases in which the state conducting the proceedings has itself procured or connived in the obtaining of the statement by torture. Indeed, the CAT has specifically stated that:
In PE v France(91), the CAT clarified that Article 15 applies in circumstances where one state seeks to adduce evidence allegedly obtained by torture in another state. The CAT held that "the generality of the provisions of article 15 of the Convention derive[d] from the absolute nature of the prohibition of torture and impl[ied], consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as result of torture"(92). With this, the CAT underscored the requested State parties’ positive obligation to make enquiries as to the validity of the allegations of torture used to extract incriminating evidence in the requesting State. The UN Special Rapporteurs on Torture have consistently followed the line of the CAT in their reports. Amnesty International raised a number of serious concerns about the application of Part 4 of the UK ATCSA. Under that Act the Home Secretary had the power to certify a non-UK national as a "suspected international terrorist". The effect of such certification was the detention without charge or trial of the person certified. The certification was reviewable by the SIAC. In July 2003, in the course of part of an appeal against such certifications before the SIAC, which took place in public, counsel for an internee cross-examined an MI5 (security services) witness known as Witness A. During his cross-examination, Witness A made statements to the effect that it was possible that evidence extracted under torture could be assessed as reliable by MI5, and that, therefore, it could be relied upon by the Home Secretary in the context of the SIAC proceedings. On 29 October 2003, the SIAC ruled that "evidence" extracted under torture of a third party was not only admissible in judicial proceedings but may also be relied on by the SIAC in reaching judgement. On appeal to this ruling, the Court of Appeal of England and Wales on 11 August 2004 disturbingly "clarified" its view that "evidence" obtained by torture of a third party (i.e. not the ATCSA internee) would only be deemed non-admissible if it had been directly procured by UK agents or if UK agents had connived in its procurement. Otherwise, "evidence" obtained through torture would be admissible and could be relied upon. The appeal of this judgement to the UK’s highest court, the Appellate Committee of the House of Lords (the Law Lords) remains pending(93). Upon its examination of the UK’s report of its implementation of the Convention against Torture, the CAT expressed concern that UK domestic legislation had been "interpreted to exclude the use of evidence extracted by torture only where the State party’s officials were complicit". With respect to this, the CAT recommended that the UK authorities should not "rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture". It also recommended that the UK authorities should "provide for a means whereby an individual can challenge the legality of any evidence in any proceeding plausibly suspected of having been obtained by torture"(94). Amnesty International is profoundly concerned that the Court of Appeal’s judgement does nothing to prevent torture by agents of other states. Reliance by the authorities on "evidence" thus obtained and its admission by the courts, in effect gives a green light to torturers and undermines the absolute prohibition of torture and other ill-treatment.(95) Such a development can have no place in a genuine Area of Freedom, Security and Justice and Amnesty International urges the EU, through the Commission and potentially through the Council using the procedures under Article 7 TEU, to ensure that Member States comply fully with the international prohibition of torture and other ill-treatment. In order to render this prohibition effective, there must be a total ban on the introduction of "evidence" obtained through torture or other ill-treatment in any proceedings, including judicial ones, except against a person accused of torture. Such a ban must apply irrespective of the location in which the torture or other ill-treatment treatment took place and regardless of who was responsible for such acts. Amnesty International urges the Commission to address the issue of
the admissibility of evidence extracted through torture or other
ill-treatment in the forthcoming green papers on evidence to ensure
that the EU applies clear standards in conformity with the UN
Convention against Torture and the ECHR. 4. Prosecuting terrorists across borders: extradition and expulsion to third countries Extradition to countries outside the EU is generally governed by bilateral treaties with individual Member States or, within the Council of Europe, by the European Convention on Extradition 1957. The EU concluded an agreement with the USA in 2003 on extradition(96) and another on mutual legal assistance(97) which provide a framework within which Member States must apply rules on extradition in their bilateral relations with the USA(98). At the time of the agreement Amnesty International raised concerns(99) relating to the unsatisfactory nature of the provision on the death penalty and to the absence of a substantive reference to the guarantee of fair trial rights. Some recent cases have highlighted the problem of multiple requests for extradition not made in good faith to different EU Member States successively where extradition has already been refused in another Member State and even asylum granted on the facts of the case. Amnesty International believes that this development should be addressed at EU level as an issue which touches on the credibility of the Area of Freedom, Security and Justice. It reflects that, while prosecutorial measures are recognised across borders, the protection of human rights is not. Despite the existence of clear international standards, the relationship between asylum and extradition has recently become increasingly complex given the lack of adequate safeguards in some national legislations to protect asylum seekers against extradition measures while their cases are still pending. The aftermath of 11 September 2001 has also had a great influence on Member States’ practice regarding revocation of refugee status and extradition or expulsion of terrorist suspects. While sending governments may have sought diplomatic assurances, the practice shows that countries offering such assurances may be those where human rights violations often occur. Outside of the traditional framework of extradition, there is an
increasingly worrying trend within the context of the "war on
terror" to use avenues to surrender suspects across borders,
practices which bypass the requirements of due process and lead to
serious breaches of human rights(100). Such practices include
"extraordinary rendition", expulsion with diplomatic assurances and
illegal abduction. Amnesty International is extremely concerned that
some EU Member States have been complicit in such practices or have
not behaved with due diligence to protect those under their
jurisdiction from the human rights abuses that can arise out of such
practices. If the EU is serious about creating an Area of Freedom,
Security and Justice, it must ensure that such practices are not
tolerated within its borders by drawing up a framework of standards
to be applied to the surrender of persons outside the EU in whatever
form that takes. 4.1 Extradition agreements with third countries 4.1.1 EU-US agreement In 2003 the EU concluded an extradition agreement with the US – the first agreement of its kind on judicial cooperation in criminal matters with a third country. The negotiations leading up to the agreement were widely criticised for their lack of transparency and the absence of any democratic scrutiny on the process. There was concern that the EU could bind its Member States in an agreement which could have a significant impact on the respect for human rights within the EU without full consultation and democratic accountability. At the time of the agreement Amnesty International raised a number of concerns about its provisions(101). Article 13 of the extradition agreement contains express provision on the death penalty, entitling any Member State to require as a condition for extradition that the death penalty shall not be imposed, or if imposed shall not be carried out, if that Member State does not impose the death penalty for the offence in question. However, it provides only that Member States may set a condition that the death penalty not be imposed or carried out, or that they may refuse extradition if the US does not accept the relevant conditions. Unlike comparable clauses in several bilateral agreements, there is no obligation imposed on EU Member States by the EU-US agreement to set such a condition or to refuse extradition in such a case. Amnesty International considers that such an obligation arises for all EU Member States as regards the death penalty in peacetime by virtue of their ratification of Protocol 6 to the ECHR. Furthermore, the Charter of Fundamental Rights is unequivocal in its prohibition of extradition when there is the risk of facing the death penalty. Similarly, the application of the death penalty in all circumstances is prohibited by Protocol 13 to the ECHR. Amnesty International considers that Article 13 of the extradition agreement leaves an unacceptable margin of discretion with regard to conditioning and refusing extradition in the face of the death penalty. It is not consistent with Protocols 6 and 13 to the ECHR and with the EU Charter of Fundamental Rights which prohibit extradition where there is a risk of the death penalty. It must, however, be interpreted in a manner which is consistent with the EU’s stance on the death penalty and with Member States’ obligations under international law. Another problem regarding Article 13 is the provision that the death penalty may in fact be imposed as long as it is not carried out. It is understood that for the US an absolute prohibition to extradite in case of death penalty was not acceptable because it considered that such a limitation might preclude prosecution in certain cases per se and so create de facto discrimination among US citizens. Nevertheless, Amnesty International believes that this is at odds with the Charter of Fundamental Rights which in Article 2 states that "no one shall be condemned to the death penalty, or executed", and in Article 19.2 stipulates that "no one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment". Even if an extradited person is not executed, a death sentence and subsequent confinement in death row can be regarded as cruel and inhuman treatment notwithstanding the absence of the prospect of actual execution(102). The final choice of wording also dilutes the commitment from the JHA Council Conclusions of 26 April 2002 stating that "the Union will make any agreement on extradition conditional on the provision of guarantees on the non-imposition of capital punishment sentences". Finally, the death penalty provision hinges on the requesting state not only accepting the conditions, but also complying with them. There is no mechanism to ensure that the United States will fulfil its obligations pursuant to the agreement if it accepts the relevant conditions. There is no joint court or other dispute settlement organ which has the power to issue binding decisions concerning the application of the agreement to individual cases. The only "sanction" possible is the prospect of terminating the agreement with six months’ notice. It cannot be considered purely theoretical that the United States would breach its own undertakings; the US capital justice system is known to be flawed, including on the issue of compliance with international obligations. The military commissions established in the context of the camps at Guantánamo Bay, which have the power to hand down death sentences, add to this concern. It is conceivable, for example, that the case of a non-US citizen accused of a terrorist offence, initially to be tried in the regular criminal justice system, could subsequently be transferred for trial by military commission, as was reportedly considered in the case of French national Zacarias Moussaoui. Another central issue is that of US compliance with international obligations regarding fair trial, in itself sufficient reason for concern with regard to the extradition agreement. From the EU’s point of view, as this was the first agreement of its kind, the overriding aim should have been to set a clear standard to ensure that rights protection obligations stemming from its own constitutional principles and from international human rights commitments are properly guaranteed. An implicit possibility to refuse extradition on fair trial grounds is set out in Article 16a (1), which permits refusal to extradite on any ground set out in a bilateral extradition treaty which is not covered by the EU-US agreement. It follows that the application of any bilateral agreements permitting refusals to extradite on fair trial grounds is not precluded by the EU-US treaty. Trust in the US guaranteeing fair trial cannot be unqualified. As
Amnesty International has pointed out repeatedly, the US, in
pursuing the "war on terror", continues to violate its obligations
under international human rights and humanitarian law, including its
duties to uphold standards of fair trial and to protect against
arbitrary detention. Amnesty International has repeatedly raised
concerns about the possibility of trials by executive military
commissions with the power to hand down death sentences and no right
of appeal, and called on the US government to end the legal "black
hole" in which it has been keeping hundreds of detainees in
Guantánamo Bay. 4.1.2 Future agreements The EU-US agreements on extradition and mutual legal assistance were the first of their kind negotiated by the EU and it may be that further agreements with third countries may be negotiated in the future, particularly within the context of the fight against terrorism. For example, cooperation in the area of counter-terrorism is to be stepped up between the EU and the Russian Federation. The Road Map for the Common Space of Freedom, Security and Justice agreed at the 10 May 2005 EU-Russia Summit foresees intensified cooperation in the area of counter-terrorism, including full cooperation to "(…) find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute any person who supports, facilitates, participates, or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens". This aspect will also be taken into account in development of asylum cooperation with the Russian Federation. The Road Map stresses that cooperation will be "in accordance with international law, in particular international human rights, refugee and international humanitarian law" (103). Amnesty International is concerned that the lack of transparency which characterised the negotiation process with the US making external scrutiny extremely difficult, should not be repeated in future agreements of this kind which may have substantial implications for the human rights of individuals concerned and for the protection of human rights generally. Amnesty International urges the EU, in its negotiations on any future agreements with third countries on matters of judicial cooperation and of cooperation in the fight against terrorism more broadly, to set clear parameters for the respect of human rights in this context that meet the standards that the EU applies within the Area of Freedom, Security and Justice, in particular the ECHR and its protocols, the abolition of the death penalty and the full respect of the rights not to be subjected to torture or other ill-treatment and to a fair trial. 4.2 Multiple requests An individual must be able to move around the EU secure in the knowledge that a decision to refuse extradition to a third country on the grounds of lack of evidence or of the risk of human rights abuse will be recognised throughout the Area of Freedom, Security and Justice. While the EU is developing the principle of mutual recognition (whereby an order from a judicial authority in one Member State is to be recognised as valid in another Member State based on mutual trust in the quality of justice in the EU) of judicial orders relating to prosecutions and investigations, it seems inconsistent that the same principle should not apply to judicial findings relating to the protection of fundamental rights in the context of criminal law and extradition proceedings. The case of Akhmed Zakayev demonstrates how the problem of multiple extradition requests to different EU Member States undermines the principle of legal certainty and the right to freedom of movement of persons within the EU. Akhmed Zakayev, an envoy of the late Chechen President Aslan Maskhadov, was first arrested on 30 October 2002 in Copenhagen where he was attending the World Chechen Congress. Amnesty International welcomed the decision by Denmark’s Justice Ministry to refuse, due to lack of evidence, to extradite Mr Zakayev as requested by the Russian Federation(104). Mr Zakayev was subsequently arrested on his arrival in the UK from Copenhagen on 5 December 2002 on another extradition request from the Russian Federation, but later released on bail. Amnesty International urged the UK authorities not to extradite Mr Zakayev to the Russian Federation on the grounds that, if extradited, he risked being subjected to torture or ill-treatment or an unfair trial. The UK judge decided that the extradition request should be declined on the grounds that Akhmed Zakayev’s ethnicity and political beliefs made it likely that he would be subjected to torture if returned to the Russian Federation. During the extradition hearings in the UK, experts and witnesses gave evidence of widespread torture of persons held in pre-trial detention centres and prisons. One witness, Duk-Vakha Doshuyev, alleged for example that he had been tortured into providing accounts to support the Russian Federation’s extradition request. In November 2003 Mr Zakayev was granted refugee status in the UK. Another example of competing requests and interests blurring the lines of due process (although not strictly involving two EU Member States) was the case of Mullah Krekar, an Iraqi Kurd, which involved a complex array of competing extradition requests from Jordan and Iraq and deportation proceedings between The Netherlands and Norway. While an extradition request from Jordan to The Netherlands was never formally refused on human rights grounds by the Dutch Court as Mr Krekar was deported to Norway before the extradition proceedings were completed in January 2003, The Netherlands has a policy of not extraditing to Jordan due to fears of human rights abuses. In Norway Mullah Krekar was the subject of another request for extradition from Jordan and a further request from Iraq. On 15 June 2004 it was announced in Norway that all charges were to be dropped against Mullah Krekar for lack of evidence and fears that witness testimony in Iraq was coerced(105). Amnesty International considers that within the context of the Area of Freedom, Security and Justice, where an extradition request is refused on the grounds of having not been made in good faith, of lack of evidence, or of a risk of a breach of fundamental rights, that decision ought to be recognised across the EU on the basis of mutual recognition. Shopping by third countries in the EU should not be tolerated as it undermines the credibility of a Union based on common values and threatens the principle of freedom of movement by eroding legal certainty. There may be a justification for renewed requests to different EU Member States where refusal to extradite was based on grounds which may be substantially different between Member States (such as, for example, the requirement for double criminality which might be met in one Member State and not in another, genuine and credible new evidence, or the application of the "own national" rule where some Member States may not extradite their own nationals to third countries). However, in cases where the refusal is based on the international obligations of Member States to protect those within their jurisdiction from breaches of human rights which are common to all Member States and form part of the basic principles upon which the EU is founded, refusal from one Member State should mean automatic refusal to extradite from any Member State. Amnesty International urges the EU to develop minimum standards for the protection of human rights in the context of extradition to third countries and to establish a system of mutual recognition of decisions to the effect of refusing extradition on grounds of potential breach of human rights obligations, so as to ensure that different responses to multiple requests made across the EU do not undermine legal certainty and the principle of freedom of movement. 4.3 Competing proceedings: extradition and asylum 4.3.1 International law principles Asylum and extradition intersect when an asylum seeker or a recognised refugee is requested by a third country for criminal proceedings. Refugee status does not have to prevent extradition per se, as long as adequate legal safeguards protecting individuals from persecution and torture are in place. According to Article 33.2 of the 1951 Geneva Convention, the only exception to the principle of non-refoulement applies where there are "reasonable grounds for regarding [him or her] as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country". As an exception to the general principle of non-refoulement, paragraph 2 of Article 33 has to be interpreted restrictively. The threshold for application of this exception is high – the requested refugee must be a threat to the foundations of the public order or the very existence of the state he is in. The danger to the community must be very serious, threatening the safety of the population of the country(106). The decision to extradite the person must be taken by a competent authority and conform to the principle of proportionality whereby the danger entailed to the refugee by expulsion or return is weighed against the threat to public security that would arise if he were permitted to stay. However, the exceptions listed under Article 33.2 may be seen as redundant given the jurisprudence of the European Court of Human Rights, which has considerably broadened the scope of the principle of non-refoulement through a wide interpretation of Article 3 ECHR. This article states that under no circumstances can a person be sent back to a country where s/he risks facing torture or cruel, inhuman or degrading treatment or punishment. The European Court has consistently ruled that Article 3 ECHR applies regardless of the legal status of the person under the Geneva Convention(107). The Court also put an end to controversies regarding the possibility to apply Article 3 ECHR both to administrative measures and judicial measures, by stating explicitly that the principle of non-refoulement applies to anyone subjected to a deportation order(108), to an extradition order(109) or to any measure of expulsion(110). The European Court of Human Rights has consistently acknowledged that contracting states are afforded some discretion as to the manner in which they conform to their obligations under Article 3 ECHR. However, it has expressly held that there can be no exception on the grounds of public order or national security. In the case of Chahal v the UK, the European Court of Human Rights ruled that the return to India of a Sikh activist would violate the UK’s obligations under Article 3, despite diplomatic assurances proffered by the Indian government that Chahal would not suffer mistreatment at the hands of the Indian authorities. The Court stated that in non-refoulement cases "the issues concerning national security are immaterial" […] "given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to [the prohibition of torture]"(111). The same interpretation has been endorsed by UN treaty monitoring bodies, such as the UN CAT, and the absolute prohibition of refoulement is now considered to be part of customary international law. In the case of Paez v Sweden(112), the CAT held that "the nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under Article 3 of the Convention [, that prohibits refoulement of individuals in another State]"(113). Therefore, it excluded the possibility of balancing the decision to expel an individual against his possible membership in a terrorist organisation, if expulsion was likely to result in torture, cruel, inhuman or degrading treatment or punishment. 4.3.2 The interaction between asylum and extradition procedures in practice While the legal safeguards have been clearly established, the interaction between asylum and extradition procedures is fragile in practice given that the assessment of the safety of the country requesting the extradition remains highly political. Governments in Europe and North America are increasingly sending alleged terrorist suspects and others to abusive states based on so-called "diplomatic assurances" of humane treatment that in fact expose these individuals to serious risk of torture or other ill-treatment upon return. Countries offering such assurances have included those where torture and other ill-treatment are often practised, as well as those where members of particular groups are routinely singled out for the worst forms of abuse. In the face of the absolute prohibition of refoulement, sending governments have justified such transfers by referring to diplomatic assurances they sought from the receiving country that the suspects would not be tortured or ill-treated upon return(114). Research carried out by Human Rights Watch shows that an assessment of the appropriateness of the use of diplomatic assurances varies greatly according to states’ diplomatic agendas(115). Furthermore, an assessment of states’ practices reveals the lack of a uniform approach regarding the relationship between status determination usually done through an administrative procedure and extradition procedures, which are judicial in nature. This question is not settled by existing EU standards, despite discussions within the different working groups of the EU Council involved in the negotiations of the draft directive on minimum standards on procedures in EU Member States for granting and withdrawing refugee status(116). Given Member States’ reluctance to limit their competence regarding the issue of extradition within the framework of this directive, the final text leaves open the possibility for EU Member States to carry out an extradition request while an asylum application is still pending. While it still remains to be approved by the European Parliament before it can enter into force, Amnesty International fears that the ambiguous provisions of this directive, once adopted, may downgrade refugee protection in this regard. Although it does include general reference to the principle of non-refoulement, under its Article 6.2, Member States can make an exception to the applicant’s right to remain on their territory while the asylum application is still pending "where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations pursuant with a European Arrest Warrant or otherwise, or to a third country, or to international criminal courts or tribunals". Further, under its Article 23 (m), Member States will be entitled to consider an asylum claim as manifestly unfounded and process it under a fast track procedure when the applicant is considered to be a threat to public order or to national security. In such a case, the applicant may be expelled or extradited before the end of the asylum procedure given that the appeal has no suspensive effect(117). The case of Akhmed A.(118) demonstrates the gaps in effective protection of asylum seekers from refoulement in extradition cases as well as the shortcomings of the Austrian legislation. Akhmed A. is a Russian citizen who was extradited to Russia while his application for asylum was pending before the Austrian Appeals Board(119). He applied for asylum in Austria in early 2001, claiming that he would face persecution if sent back to Russia due to his ethnic origin and religion (Kumücke) and his work for the Dagestan militia near the Chechen border. After his initial claim for asylum was rejected, Akhmed A. lodged an appeal with the Independent Federal Asylum Review Board. Although his appeal was pending before the Board, he was detained pursuant to the extradition request by the Public Prosecutor of the Russian Federation. Despite the acknowledgement of the regional court that Akhmed A. could face torture or ill-treatment upon his return to Russia, it went on to authorise extradition |
"The international community has
found it very hard in the past to come up with a consensus on