Read the 82nd issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels.
The E-Bulletin on Counter-Terrorism and Human Rights provides hyperlinks to full texts of reports, statements, laws, court judgments and legal analysis. It aims at fostering an informed debate on the implications of counter-terrorism measures for the promotion and protection of human rights.
AFRICA & MIDDLE EAST
Kenya: Mass arrest of refugees in “counter-terrorism” operation
Egypt: Interim President declines to ratify contested draft “anti-terrorism” legislation
Egypt: Prime Minister confirms classification of Muslim Brotherhood as “terrorist organization”
Egypt: : Criminal Court convicts 683 persons and imposes the death penalty in Brotherhood trial
Jordan: Counter-terrorism legislation amended due to Syrian conflict spillover fears
Saudi Arabia: Special courts sentence eight persons to death in “terrorism” trials
Syria: UN human rights bodies report further gross violations of human rights in Syrian conflict
AMERICAS
USA: Further revelations leaked on CIA rendition programme from Senate Committee’s report
USA: No court remedy for US targeted killings, rules District Court
USA: US Intelligence Director admits NSA surveillance of US conversations
USA: Journalists breaking Snowden revelations receive prestigious journalism awards
USA: President Obama announces NSA surveillance reform plan
USA: Court of Appeals orders release of targeted killings legal memo
USA: Foreign Intelligence Surveillance Court upholds lawfulness of NSA surveillance programme
USA: District Court rules Government has absolute discretion on Guantánamo detainee transfers
Chile: Government rejects use of anti-terrorism law to deal with social protests
Brazil: Draft anti-terrorism law threatens freedom of expression and assembly, says Amnesty International
ASIA & PACIFIC
India: Supreme Court commutes terrorism convict’s death penalty sentence to life imprisonment
Pakistan: National Assembly approves contested anti-terrorism law
Malaysia: Legislation reintroducing security detention powers enters into force
Sri Lanka: UN Human Rights Council demands accountability for violations in armed conflict
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Defence Committee approves use of drones
UK: Tax revenue services used anti-terrorism surveillance powers to find whistleblower
UK/Poland: More revelations on UK and Polish complicity in CIA rendition programme
UK: Independent Terrorism Legislation Reviewer uphold use of preventive orders
Spain: Investigative Judge to continue Guantánamo torture investigation
Denmark: Open Society asks for information on alleged Danish complicity in US targeted killings
Bulgaria: European Court blocks extradition of Chechen person to Russian Federation
Turkey: European Court rules Turkey breached right to liberty of PKK supporters
Turkey: Prohibition on prisoners speaking Kurdish by phone breaches right to family life, rules European Court
Ukraine: Acting Present launches “counter-terrorism” operation and signs secret laws
Russian Federation: Duma approves new terrorism offences and measures
Russian Federation: European Court rules that extradition of “terrorism” suspect to Uzbekistan would breach European Convention
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Human Rights Council adopts resolution on counter-terrorism and human rights
UN: Privacy must be protected online as well as offline, says Human Rights Council resolution
UN: Human Rights Council concerned at drones’ civilian casualties
EU: Court of Justice invalidates Data Retention Directive
EU: Privacy expert group approves two opinions on mass surveillance
EU-US: EU and US confirm cooperation in counter-terrorism despite mass surveillance scandal
Council of Europe: Edward Snowden testifies before Parliamentary Assembly with new revelations
Amnesty International publishes second edition of Fair Trial Manual
E-BULLETIN no. 82
AFRICA & MIDDLE EAST
Kenya: Mass arrest of refugees in “counter-terrorism” operation
On 26 March, Kenya’s Minister of Interior, Ole Lenku, issued a directive ordering all refugees in the country to return to the two established camps in Dadaab and Kakuma, threatening with arrest and deportation those found outside of a refugee camp. Following the order, Kenyan authorities began an anti-terrorism operation code-named Rudisha Usalama (“restore peace”), during which more than 4,000 people, mainly from the Somali community, were arrested throughout the country. The detainees were held in a sports stadium where the police interrogated them to determine their legal status. This anti-terrorism operation and the relocation order came after an attack, characterized as “terrorist” by the authorities, in which gunmen killed four persons and injured several other in a church. After claims by the Council of Imams and Preachers that the authorities had been mistreating the Somali community, the Independent Policing Oversight Authority (IPOA) announced that it had begun investigations into the operation.
UNHCR Statement Press Article 1 Press Article 2 Press Article 3
Egypt: Interim President declines to ratify contested draft “anti-terrorism” legislation
On 14 April, the interim President of Egypt, Adly Mansour, sent back to the Government draft counter-terrorism legislation on the grounds that it had not been subject to public consultation and debate. Several human rights organizations, including Amnesty International and Human Rights Watch, had strongly criticized the draft legislation. The legislation would introduce in the Penal Code a definition of terrorism expanded “to include actions aimed at “damaging national unity, natural resources, monuments … hindering the work of judicial bodies … regional and international bodies in Egypt, and diplomatic and consular missions” [and] to “any behaviour or preparation with the purpose of damaging communications, or information systems, or financial and banking systems, or the national economy”.” The human rights organizations expressed concern that such a vague definition of terrorism could be used to further repress any opposition or protest action in violation of the rights to freedom of association and expression. The draft legislation also would extend the application of the death penalty to “the crimes of founding, managing or administering a terrorist group” and provides security officers with the power to detain suspects for up to 72 hours without prosecutorial authorization, a period extendable for a further seven days, contrary to international obligations of torture prevention.
NGO Statement 1 NGO Statement 2 Press Article
Egypt: Prime Minister confirms classification of Muslim Brotherhood as “terrorist organization”
On 11 April, Prime Minister Ibrahim Mehled issued decision no. 579/2014 officially labelling the Muslim Brotherhood as a “terrorist organization”, after the Cairo Court for Urgent Matters affirmed the previous Government’s decision to outlaw the political party and religious group. This decision extended the application of the anti-terrorism legislation to any Muslim Brotherhood member and reportedly to “any person who supports it verbally or in writing or in “other ways” and any person who funds its activities”. On 10 April, Abdulrahim Shaheen, a reporter who works with Al-Jazeera and for the newspapers Al-Hurriya wa Al-Adala and Misr 25 was arrested by national security police on charges of “membership of a terrorist group,” “inciting hatred” and “spreading false information.”
Egypt: Criminal Court convicts 683 persons and imposes the death penalty in Brotherhood trial
On 28 April, the Minya Criminal Court convicted and sentenced to death 683 individuals on charges involving the killing of a police officer, attacking the Adawa police station, destroying public property, and seizing weapons. Of the 683 sentenced, only 80 individuals were in detention. On 24 March, the same court sentenced 529 individuals to death for attacking a police station, killing a police officer, and other charges. Both alleged attacks in Minya came following the dispersal of the 14 August sit-ins in support of ousted former President Mohamed Morsi. On 28 April, the court affirmed the death sentence for 37 of these persons, and imposed 25 years imprisonment with hard labor for 492 persons. The ICJ denounced the trial as unfair, as well as resort to the death penalty as punishment.
Jordan: Counter-terrorism legislation amended due to Syrian conflict spillover fears
On 22 April, Jordan’s Parliament approved amendments to the 2006 Anti-Terrorism Law with the aim of curbing participation of Jordanians in Syrian opposition armed groups. According to press reports, under the newly approved legislation the definition of terrorism “has been expanded to include any act meant to create sedition, harm property or jeopardise international relations, or to use the Internet or media outlets to promote “terrorist” thinking.” The amendments also make a criminal offence “the use of information technology, the Internet or any means of publication or media, or the creation of a website, to facilitate terrorist acts or back groups that promote, support or fund terrorism.” The penalties for commission of terrorist acts have reportedly been increased to range from ten years of imprisonment to the death penalty.
Press Article 1 Press Article 2 Press Article 3
Saudi Arabia: Special courts sentence eight persons to death in “terrorism” trials
On 20 and 21 April, Riyadh’s Specialized Criminal Court sentenced eight persons to the death penalty in two separate trials for a series of attacks in May 2003 which left 35 people dead, including eight United States nationals and nine attackers. The Specialized Criminal Court sentenced another 77 persons to terms of imprisonment ranging from two to 35 years. All the defendants were charged with either committing or aiding or abetting the terrorist attacks. Five of the sentenced men were not identified, but one was reported in the press to be “a former guard at al-Hayer prison who had ‘sheltered one of the wanted terrorists’ and been involved in a gun battle with police at an apartment complex in 2003.”
Press Article 1 Press Article 2 Press Article 3
Syria: UN human rights bodies report further gross violations of human rights in Syrian conflict
On 14 April, the Office of the UN High Commissioner for Human Rights published a paper documenting “the rampant use of torture, including allegedly of children, in detention facilities across Syria by Government forces and some armed opposition groups”. The report contains testimonies from detainees alleged to have been “systematically held without access to lawyers, and while some were brought before tribunals, proceedings flouted basic fair trial standards, including the right to legal representation.” Special courts, such as the Terrorism Tribunal created in Damascus in 2012, have reportedly received referrals of 1,200 files in the month of January 2014 alone “with each file including an average of two persons”. On 28 March, the UN Human Rights Council adopted a resolution in which it expressed “grave concern at credible reports that thousands of detainees, both Syrian and non-Syrian nationals, may have died in government prisons as a result of starvation and torture, condemns those responsible for those violations, demands the release of all persons arbitrarily detained, including children, and calls upon the Syrian authorities to publish a list of all detention facilities, to ensure that conditions of detention comply with applicable international law and immediately to allow access by independent monitors to all detention facilities.”
OHCHR Report HRC Resolution UN Statement 1 UN Statement 2
AMERICAS
USA: Further revelations leaked on CIA rendition programme from Senate Committee’s report
After the US Senate Intelligence Committee voted 11-3 on 3 April in favour of asking the White House to declassify the executive summary, findings and conclusions of its report on its investigations into the CIA-led rendition, interrogation and secret detention programme, its bullet point conclusions were leaked through the press on 11 April. They revealed that, not only had the CIA misled the Government on the use of “enhanced interrogation techniques”, but also that such techniques “did not effectively assist the agency in acquiring intelligence or in gaining cooperation from detainees.” According to these conclusions, the CIA used far more brutal interrogation techniques than those communicated to the authorities and impeded oversight from the White House, Congress, and the CIA’s Office of the Inspector General. The report is said to conclude that a climate of impunity remains in the CIA and that this CIA-led programme has “hindered the national security missions of other Executive agencies”. A coalition of human rights organizations has written to to President Barack Obama to urge him to declassify the Senate report.
Leaked Conclusions NGOs Letter Press Article 1 Press Article 2 Press Article 3 Press Article 4
USA: No court remedy for US targeted killings, rules District Court
On 4 April, the US District Court for the District of Columbia dismissed a constitutional complaint by the father of Anwar Al-Aulaqi, killed by a targeted U.S. drone attack in Yemen in 2011. The contested drone attacks resulted in the deaths of three US citizens, Anwar Al-Aulaqi and Samir Khan on 30 September 2011, and of Al-Aulaqi’s 16-year-old son, Abdulrahman, killed in a separate drone attack two weeks later. The Obama administration had acknowledged responsibility for the deaths a year earlier in May 2013. Although the District Court rejected the submission that “political questions” prevent the judiciary from hearing the case, it ruled that the judicial branch could not provide a remedy for targeted killings without intruding on the powers of the President and Congress when it comes to armed conflict.
Ruling NGO Statement 1 NGO Statement 2
USA: US Intelligence Director admits NSA surveillance of US conversations
On 1 April, media reports revealed the content of a letter sent last 28 March by the Director of National Intelligence, James R. Clapper Jr, to Senator Ron Wyden, in which he admitted that “United States intelligence analysts have searched for Americans’ emails and phone calls within the repository of communications that the government collects without a warrant”. On 10 April, it was reported that the US Government is refusing to give access to German Chancellor Angela Merkel to her file held by the US National Security Agency or to answer formal questions on the US surveillance activities. On 22 March, the German periodical Der Spiegel revealed that the US NSA targeted “former Chinese President Hu Jintao, the Chinese Trade Ministry, banks, (and) Huawei. With 150,000 employees and €28 billion ($38.6 billion) in annual revenues, the company is the world’s second largest network equipment supplier.”
Press Article 1 Press Article 2 Press Article 3 Press Article 4
USA: Journalists breaking Snowden revelations receive prestigious journalism awards
On 11 April, journalists Laura Poitras and Glenn Greenwald, who had first met with NSA whistleblower Edward Snowden and developed the stories of the NSA mass surveillance, entered the USA for the first time since the revelations. The two journalists had been awarded the George Polk Awards in New York City. On 15 April, The Guardian and the Washington Post received the Pulitzer Prize for the reporting of Snowden documents leaks. In his acceptance speech, Glenn Greenwald said that “each one of these awards just provides further vindication that what [Snowden] did in coming forward was absolutely the right thing to do and merits gratitude, and not indictments and decades in prison.” Laura Poitras also recalled that “he’s not the first person who’s sacrificed their life, but he came forward with information that allows us to know what’s actually happening. And so this award is really for Edward Snowden”.
Speeches Awards Announcement Press Article 1 Press Article 2
USA: President Obama announces NSA surveillance reform plan
On 25 March, President Barack Obama announced a new plan to reform the National Security Service surveillance system. According to the plan, the Government would request Congress to modify section 215 of the USA Patriot Act, currently authorizing the sweeping NSA mass surveillance programmes, to require judicial authorization based on individual suspicion for any surveillance measure. President Obama stressed that the proposal presented to him would eliminate the concern “of government storing bulk data generally”. The New York Times has added that “bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would”, i.e. eighteen months. On 27 March, the Washington Post specified that, “except in emergencies, the government will receive records only with an order from the Foreign Intelligence Surveillance Court approving the use of specific phone numbers for queries”; “the phone companies will return results on a continuous, ongoing basis”; and “the companies will be compelled by court order to ensure that the results are returned in a usable format and timely manner.”
Obama Speech Press Article 1 Press Article 2 Press Article 3
USA: Court of Appeals orders release of targeted killings legal memo
On 21 April, the US Court of Appeals for the Second Circuit of New York ordered the US Government to produce the legal memoranda on which its targeted killing programme is based. The Court ruled that the Government could no longer rely on the exceptions to disclosure that had been allowed on 2 January 2013 by District Judge McMahon, because “whatever protection the legal analysis might once have had, has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”
Ruling NGO Statement Press Article
USA: Foreign Intelligence Surveillance Court upholds lawfulness of NSA surveillance programme
On 25 April, a March 2014 judgment of the Foreign Intelligence Surveillance Court was declassified which upholds the legality of the NSA mass surveillance programme of phone conversations. The rationale for the decision of Judge Rosemary M. Collyer was that a 1979 precedent, Smith v. Maryland, still applied to this NSA programme and that a person has no privacy expectation in respect of data voluntarily turned over to third parties, such as phone companies. The challenge to the programme had reportedly been brought by a US phone company, said to be Verizon, after Judge Richard J. Leon of the US District Court for the District of Columbia ruled, on 16 December 2013, that, in the present day, “the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what the information can tell the Government about people’s lives [and that this has] resulted in a greater expectation of privacy and recognition that society views that expectation as reasonable”. The FISA court has rejected this argument.
Ruling Press Article
USA: District Court rules Government has absolute discretion on Guantánamo detainee transfers
On 8 April, the US District Court for the District of Columbia rejected the claim of Ahmed Adnan Ahjam, a Guantánamo detainee of Syrian nationality, who was challenging the constitutionality of the 2013 and 2014 National Defense Authorization Acts insofar as they impeded his transfer out of detention to a third country. Ahmed Adnan Ahjam had been cleared for transfer in the report of the Guantánamo Task Force published on 22 January 2010, but has remained at Guantánamo nonetheless. The District Court ruled that he did not have any standing before the federal courts, as he could not demonstrate a “judicially cognizable interest” as an injury in fact, since he did not have a constitutional “right to be free.” The court held that the classification “cleared for transfer” did not divest him of his status of “enemy combatant” and did not amount to a situation of “cleared for release”. The Court stressed that under the “cleared for transfer” status, the administration maintained absolute discretion on whether or not to carry out the transfer and on whether or not to maintain this status, since it was a decision pertaining to the realm of foreign policy.
RulingChile: Government rejects use of anti-terrorism law to deal with social protests
On 25 March, the Minister of Interior, Rodrigo Peñailillo, declared that the newly established Government of Michelle Bachelet rejected the use of anti-terrorism legislation and powers to address social protests of students and members of the Mapuche indigenous people. The public prosecutors have consequently begun to re-qualify some criminal charges as ordinary offences instead of offences of terrorism. The Minister stressed that there was no need to apply the anti-terror laws, as the protests did not involve terrorist acts occurring in Chile. He announced that he had tasked a legal team to elaborate a proposal of amendment of Law 18.314 – the Anti-Terrorism Law of the Pinochet-era still in force – to align it to Chile’s international human rights obligations.
Press Article 1 (S) Press Article 2 (S)
Brazil: Draft anti-terrorism law threatens freedom of expression and assembly, says Amnesty International
On 11 April, Amnesty International expressed concern at a draft anti-terrorism law (draft law no. 449), currently under consideration in the Brazilian Congress. If approved, the law would introduce a punishment of 15 to 30 years of imprisonment for anyone “causing or inciting widespread terror by threatening or trying to threaten the life, the physical integrity or the health or liberty of a person.” The definition of the offence of terrorism was said to be overbroad. Amnesty International suggested that “the draft legislation could worsen the already dire record of Brazil’s police in dealing with public unrest and “puts freedom of expression and the right to peaceful assembly at risk”.” The draft is under consideration in view of the forthcoming football World Cup.
ASIA – PACIFIC
India: Supreme Court commutes terrorism convict’s death penalty sentence to life imprisonment
On 31 March, the Supreme Court commuted the death sentence of Devinder Pal Singh Bhullar to life imprisonment on the grounds that his request for pardon, which had been ultimately rejected, had been pending for eight years in what the Court termed an “unexplained/inordinate delay” and because of his supervening serious mental illness. Pal Singh Bhullar was sentenced to the death penalty for committing a terrorist attack in New Delhi in September 1993, which killed nine persons and injured 25 others. The Federal Government had indicated to the court that it did not oppose to the commutation of Bhullar’s death sentence.
Judgment Press Article 1 Press Article 2
Pakistan: National Assembly approves contested anti-terrorism law
On 7 April, the National Assembly approved the conversion into law of the Ordinance no. IX of 2013 to provide for protection against waging of war against Pakistan and the prevention of acts threatening the security of Pakistan. The legislation establishes special courts with jurisdiction in parts of the country to be determined by the Government, with competence on a wide range of security offences, including cyber crimes and “acts that are calculated to influence or affect the conduct of Government by intimidation or coercion, or to retaliate against government conduct”. The ordinance creates a presumption that a person is engaged in waging war against Pakistan on the basis of the “existence of reasonable evidence against him” and introduces the notion of “enemy alien”, i.e. “a person who fails to establish his citizenship of Pakistan and is suspected to be involved in the waging of war or insurrection against Pakistan or depredation on its territory by virtue of involvement in offences” contained in the ordinance. The law also gives the government power to order preventative detention of up to ninety days. On 11 April, Human Rights Watch called on the Pakistani Senate not to approve the legislation, saying that it “runs roughshod over rights provided under international law as well as Pakistan’s constitution.”
Ordinance NGO Statement Press Article
Malaysia: Legislation reintroducing security detention powers enters into force
On 2 April, the Prevention of Crime (Amendment and Extension) Act 2013, passed by Parliament on 11 October 2013, entered into force. The Malaysian Bar Association had protested that the new legislation “contains provisions that revive some of the most offensive elements of the Internal Security Act 1960 (“ISA”) and Emergency (Public Order and Prevention of Crime) Ordinance 1969 (“EO”), viz, preventive detention without trial, repeated renewals of such detention without trial, the denial of the right of suspected persons to due process of law, such as the right to legal representation and the right to be heard before any adverse direction or decision is made.” The Malaysian Bar characterized the legislation as “abhorrent and a gross violation of the rule of law and the constitutional safeguards enshrined in the Constitution”.
Law NGO Statement Press Article
Sri Lanka: UN Human Rights Council demands accountability for violations in armed conflict
On 27 March, the UN Human Rights Council, by a vote of 23-12 with 12 abstentions, adopted a resolution calling upon the Government of Sri Lanka “to conduct an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law, as applicable; to hold accountable those responsible for such violations; to end continuing incident of human rights violations and abuses in Sri Lanka.” The Council requested the Office of the UN High Commissioner for Human Rights to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability”. On 4 April, Sri Lanka’s External Affairs Minister, G.L. Peiris, made public an order signed on 20 March “freezing the assets and financial resources of entities [including] the Liberation Tigers of Tamil Eelam (LTTE)”. According to Human Rights Watch, the decision to designate 16 overseas Tamil organizations as “financers of terrorism” “is so broad that it appears aimed at restricting peaceful activism by the country’s Tamil minority.”
HRC Resolution UN Statement NGO Statement 1 NGO Statement 2
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: Defence Committee approves use of drones
On 25 March, the Defence Committee of the House of Commons released a report entitled Remote Control: Remotely Piloted Air Systems – current and future UK use. In this report, the Committee expressed satisfaction that “UK remotely piloted air system operations comply fully with international law” but recommended that there should be “greater transparency in relation to safeguards and limitations the UK Government has in place for the sharing of intelligence” in relation to targeted killings. Following considerations of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, the Committee recognized that conducting a “prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation” for any allegation of civilians’ killings “is not a simple and straightforward request as to do so could seriously jeopardise continuing operations. Nonetheless, we recommend that, to the extent that it is operationally secure to do so.”
UK: Tax revenue services used anti-terrorism surveillance powers to find whistleblower
On 24 March, The Guardian reported that during testimony before Parliament’s Public Accounts Committee, Lin Homer, the head of HM Revenue and Customs (the UK tax agency), admitted that the UK agency had used the pervasive surveillance powers provided by the Regulation of Investigatory Powers Act (RIPA) to track down a company whistleblower). Such powers, however, are authorized only in cases of suspicion of terrorism. The whistleblower, an employee of investment banking company Goldman Sachs, had leaked to Guardian journalists a “sweetheart” deal in which the HMRC had forgiven around 10 million pounds of interest “owed by Goldman Sachs after a failed tax-evasion scheme”. The surveillance powers, allowing the interception of emails, internet traffic phone communications and other data, were directed at placing under control conversations of Goldman Sachs employees and of The Guardian. Pressed by the Chair of the Committee, Margaret Hodge, Lin Homer, declared “we cannot offer carte blanche assurances for evermore that we won’t use these [powers]”.
Press ArticleUK/Poland: More revelations on UK and Polish complicity in CIA rendition programme
On 9 April, Al Jazeera reported, on the basis of two anonymous US officials’ declarations, that “the CIA detained some high-value suspects on Diego Garcia, an Indian Ocean island controlled by the United Kingdom and leased to the United States.” In addition, “20 prisoners were secretly detained in Poland from 2002 to 2005” and “Polish officials recently sought assurances from diplomats and visiting U.S. officials that the Senate report would conceal details about Poland’s role in allowing the CIA black site to be operated on Polish soil.” Following this revelation, on 14 April, the human rights organization Reprieve called on UK Secretary for the Foreign and Commonwealth Office, William Hague, to provide further clarification as to the use of the island in the context of CIA-led renditions operations. Reprieve also put forward the statement of Abdulhakim Belhadj, a Libyan opposition leader during the regime of Muammar Gaddafi and allegedly “rendered back to Libya in a joint CIA-MI6 operation in March 2004”. Abdulhakim Belhadj declared that the head of Libyan intelligence services at the time, Moussa Kousa, told him that he had gone through “a place called Diego Garcia” during his first interrogation.
NGO Statement Press Article 1 Press Article 2 Press Article 3
UK: Independent Terrorism Legislation Reviewer uphold use of preventive orders
On 27 March, the UK Independent Reviewer of Terrorism Legislation, David Anderson QC, published his report on the use in 2013 of the Terrorism Prevention and Investigation Measures (TPIMs), a set of administrative actions that the Home Office can order against persons she reasonably believes to have engaged in terrorism related activity. The Independent Reviewer, although noting that at present such powers are not used, stated that, “like control orders before them, TPIMs can be an effective means of preventing terrorism but have proved to be of little value in investigating it” and recommended that the legislation on which they are based should be renewed. In his report, David Anderson also renewed certain recommendations he had made previously: to consider “whether measures as strong as TPIMs need or ought to be available for use against a person whose connection with an act of terrorism could be as remote as the giving of support to someone who gives encouragement to someone who prepares an act of terrorism”; and to introduce a requirement that the Secretary of State for the Home Department “prove such involvement [in terrorism-related activity] on the balance of probabilities.”
Spain: Investigative Judge to continue Guantánamo torture investigation
On 15 April, the Central Criminal Court’s (Audiencia Nacional) Investigative Judge Pablo Ruz ordered continuation of the investigations into yet to be identified members of the US military and intelligence services for the offences of torture and war crimes allegedly committed against former Guantánamo detainees Abdul Latif Al Banna, Omar Deghayes, Hamed Abderrahman, Ahmed and Lahcen Ikassrien. The allegations concern the treatment they allegedly underwent while in US custody in Guantánamo and elsewhere. The investigative judge refused to apply a recent legislative revision of the Spanish universal jurisdiction rules, which has limited the competence of the Spanish Court’s to investigate crimes under international law only when the suspected person is “resident in Spain”. Judge Ruz ruled that this provision was contrary to Spanish obligations under international law, including under the Geneva Conventions and its Additional Protocol I as well as the UN Convention against Torture. Following the decision, Judge Ruz renewed his request of rogatory to the United States to know the status of investigations in light of the respect of the principle of complementarity.
Order (S) Press Article 1 (E) Press Article 2 (S)
Denmark: Open Society asks for information on alleged Danish complicity in US targeted killings
On 30 April, the Open Society Justice Initiative filed a series of freedom of information actions before the Ministry of Justice, the Security and Intelligence Service, the Ministry of Defence, the Defence Intelligence Service, and the Independent Police Complaints Authority under the Public Records Act and Public Administration Act asking for the release of information allegedly held by the Danish government on its involvement in the targeted killing of Anwar al-Awlaki, killed by a US drone strike in Yemen in 2011. This request was initiated after reports in Danish media documented “that the Danish intelligence services, known as Politiets Efterretningstjeneste (PET), recruited a Danish citizen and friend of al-Awlaki’s, Morten Storm, as a double agent” and that one “of Storm’s many tasks as a double agent was to work closely with the CIA and PET to track down al-Awlaki so that he could be killed in a U.S. drone strike”.
NGO Statement 1 NGO Statement 2 Press Article
Bulgaria: European Court blocks extradition of Chechen person to Russian Federation
On 25 March, the European Court of Human Rights ruled that Bulgaria could not extradite M.G., a Russian national of Chechen origin, to the Russian Federation, where he has been under investigation since 2003 for involvement with an armed group and preparing terrorist activities. He fled Russia with his family in 2004, requesting asylum in Poland and Germany. During a trip to Turkey in 2012, he was arrested at the Romanian-Bulgarian border. The Court considered documentation of the widespread torture of detainees suspected of belonging to armed groups operating in the North Caucasus and that, despite diplomatic assurances obtained for his safety, there were substantial grounds to believe that a risk existed that he would be subjected ill-treatment. The Court also criticized the frequent failure of the Russian Federation to conduct effective investigations into allegations of cases of torture and inhuman and degrading treatment in detention facilities in the North Caucasus, as well their failure in this case to elaborate on what steps would be taken to protect the applicant from abuse.
Judgment (F)Turkey: European Court rules Turkey breached right to liberty of PKK supporters
On 8 April, the European Court of Human Rights ruled that Turkey had violated the right to liberty of two alleged supporters of the Kurdistan Workers’ Party (PKK), Ziya Ergezen and Mehmet Ergezen, respectively father and son, who were arrested in 2005 and charged under anti-terrorism legislation. Both had spent three successive periods in detention, amounting to three-and-a-half years for the father and three years and three months for the son. The Court ruled that their detention had been excessively long, as the reliance by Turkish authorities merely on the severity of the penalty and persistent suspicions were not sufficient, but that other additional grounds needed to be cited. The Court also ruled that Ziya Ergezen’s rights, the applicant who had since had been unlawfully denied the opportunity to obtain compensation for unlawful detention. The Court also determined that their rights to a fair trial had been violated, because the judicial proceedings were excessively prolonged.
Judgment (F)Turkey: Prohibition on prisoners speaking Kurdish by phone breaches right to family life, rules European Court
On 22 April, the European Court of Human Rights ruled that the prohibition on Turkish prisoners speaking by telephone in the Kurdish language while conversing with family members was in violation of Article 8 on the right to respect for private life and family life and correspondence. The Court determined that, for a detainee, being able to communicate orally with his or her family members in his or her native language constitutes not only an element of the right to respect for correspondence, but also of the right to respect for family life. Restricting the phone calls to the Turkish language constituted an interference with these rights, which was not ‘necessary in a democratic society’. Although the Turkish authorities were entitled to introduce security measures in screening communications of detainees, this particular measure had been applied without any assessment of its necessity.
Judgment (F)Ukraine: Acting Present launches “counter-terrorism” operation and signs secret laws
On 13 April, Aleksandr Turchinov, Acting President of Ukraine, declared that the National Security Council, the constitutional body in charge of national defence, had decided to launch a “comprehensive wide-ranging counter-terrorism operation with the use of the army” in order to suppress any alleged separatist movement or group in the Eastern region of Ukraine. Immediately after this announcement, on 14 April, the Acting President signed Decree No 405/2014 on the decision of the National Security Council “On urgent measures on overcoming the terrorist threat and preserving territorial integrity of Ukraine”. The content of the Decree is unknown and the decision itself is secret.
Russian Federation: Duma approves new terrorism offences and measures
On 22 April, the State Duma of the Russian Federation adopted three new counter-terrorism laws. The laws introduce new criminal offences to the Criminal Code, including an offence of “organization of crimes of a terrorist tendency”, and abolish the statute of limitations for all crimes related to terrorism. The new legislation also doubles the punishment for “mass disorder” from four to eight years of imprisonment. One law broadens the notion of a “blogger”, extending it to “any owner of a website or a page on which publicly accessible information is posted”. A “blogger” is obliged by law to post personal information and to follow criminal legislation, including to desist from engaging in propaganda or glorification of terrorism.
Russian Federation: European Court rules that extradition of “terrorism” suspect to Uzbekistan would breach European Convention
On 17 April, the European Court of Human Rights ruled that the Russian Federation could not extradite Khamidullo Ismailov to Uzbekistan, as he would be at risk of being subject to torture if transferred and detained in that country. He has been charged in Uzbekistan with membership in an extremist and terrorist organization. The Court stated that “the general situation with regard to human rights in Uzbekistan is alarming” and that “reliable international material has demonstrated the persistence of a serious issue of ill treatment of detainees, the practice of torture against those in police custody being described as ‘systematic’ and ‘indiscriminate’, and that there is no concrete evidence to demonstrate any fundamental improvement in that area.” In addition, the Court also found a violation of the right to liberty, due to the lack of an available procedure for a judicial review of the lawfulness of the applicant’s detention pending administrative removal.
Judgment
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Human Rights Council adopts resolution on counter-terrorism and human rights
On 28 March, the UN Human Rights Council adopted a resolution on the protection of human rights and fundamental freedoms while countering terrorism. The Council urges States to take measures to ensure the right to an effective remedy, the respect of the right to liberty, of the right to privacy, to fulfil their duty to investigate allegations of human rights violations committed in the context of countering terrorism and to “ensure accountability for those responsible for violations that amount to crimes under national or international law”. The resolution also recalls the impact of counter-terrorism measures on the rights to freedom of assembly and association, expression, the respect of the principle of non-refoulement, and the right to a fair trial.
ResolutionUN: Privacy must be protected online as well as offline, says Human Rights Council resolution
On 28 March, the UN Human Rights Council adopted a resolution expressing concern “at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights.” The Human Rights Council reaffirmed that “the same rights that people have offline must also be protected offline”. The Council decided to convene at its 27th session in September a panel discussion on this particular challenge to human rights protection.
ResolutionUN: Human Rights Council concerned at drones’ civilian casualties
On 28 March, the UN Human Rights Council adopted a resolution expressing deep concern “at the civilian casualties resulting from the use of remotely piloted aircraft or armed drones” and concern “at the broader impact of remotely piloted aircraft or armed drones on individuals, children, families and communities, including the interruption of education, the undermining of religious and cultural practices and the reluctance to assist the victims of drones for fear of being caught in secondary strikes.” The Council urged all State to “ensure that any measures employed to counter terrorism, including the use of remotely piloted aircraft and armed drones, comply with their obligations under international law” and “to ensure transparency in their records on (their) use.”
ResolutionEU: Court of Justice invalidates Data Retention Directive
On 8 April, the Court of Justice of the European Union (CJEU) ruled that European Union Directive 2006/24/EC on Data Retention was invalid, as it was contrary to EU obligations under articles 7, 8, and 11 of the EU Charter of Fundamental Rights relating to the rights to privacy, to protection of personal data and to freedom of expression. The Court considered that the Directive allows for the retention of data that could provide very precise information on the private lives of the persons detained and therefore inherently interferes with these rights. The Court affirmed that the retention of data required by the directive did not affect the essence of the right to respect for private life and the protection of personal data, and the retention in the context of the fight against serious crime genuinely did satisfy an objective of general interest, namely public security. However, the Court determined that the Directive violated the principle of proportionality. The Court observed that the serious interference of the directive with this fundamental right was not sufficiently circumscribed to ensure that the infringement is strictly necessary. The Court found at odds with the rights to privacy and data protection the fact that all individuals and all means of electronic communication without differentiation, limitation or exception were under scrutiny; that the notion of ‘serious’ crime referred to in the Directive in a general manner, which fails to lay down conditions under which a national authority may have access to and use the data; and that the retention period of at least six months is very problematic in this regard. The Court stressed that the Directive did not provide for sufficient safeguards to protect against the risk of abuse and fails to require that the data is actually retained within the EU.
Judgment Court Statement EDPS Opinion Press Article
EU: Privacy expert group approves two opinions on mass surveillance
On 10 April, the Working Party 29 (WP), the EU body that brings together EU Member States Privacy Ombudspersons, issued two opinions: one on surveillance of electronic communications for intelligence and national security purposes, and another on anonymisation techniques. The WP concluded that “secret, massive and indiscriminate surveillance programs are incompatible with our fundamental laws and cannot be justified by the fight against terrorism or other important threats to national security. Restrictions to the fundamental rights of all citizens could only be accepted if the measure is strictly necessary and proportionate in a democratic society”. It called for greater transparency and issued recommendations on respect by States of obligations under the European Convention on Human Rights in the context of surveillance of electronic communications. In its second opinion, the WP acknowledged “anonymisation techniques can provide privacy guarantees and may be used to generate efficient anonymisation processes, but only if their application is engineered appropriately – which means that the prerequisites (context) and the objective(s) of the anonymisation process must be clearly set out in order to achieve the targeted anonymisation while producing some useful data.”
EU-US: EU and US confirm cooperation in counter-terrorism despite mass surveillance scandal
On 26 March, the EU-US Summit adopted a joint statement in which they confirmed their cooperation “against terrorism in accordance with respect for human rights” and that “[a]greements such as the Passenger Name Record and Terrorist Finance Tracking Programme that prevent terrorism while respecting privacy are critical tools in … transatlantic cooperation.” While affirming that data protection and privacy remain important for the EU-US dialogue and that some steps have been made, they declared that they “will take further steps in this regard [and that they] are committed to expedite negotiations of a meaningful and comprehensive data protection umbrella agreement for data exchanges in the field of police and judicial cooperation in criminal matters, including terrorism.” On 17 April, the European Data Protection Supervisor recommended that the EU institutions fully analyse “the impact on the fundamental rights to privacy and data protection of the policy options and sub-options regarding the possible continuation, amendment and termination of the EU-US TFTP Agreement” and assess the necessity and proportionality of this agreement.
Council of Europe: Edward Snowden testifies before Parliamentary Assembly with new revelations
On 8 April, whistleblower and former National Security Agency consultant Edward Snowden provided testimony before the Parliamentary Assembly of the Council of Europe. In his testimony, Edward Snowden provided further details on the functioning of NSA mass surveillance programme XKeyscore, saying that it involves “trillions” of private communications and that through it the travel patterns of innocent EU and other citizens are tracked. He reported that “the NSA also routinely monitored the communications of Swiss nationals “across specific routes”. Others who fell under its purview included people who accidentally followed a wrong link, downloaded the wrong file, or “simply visited an internet sex forum”. French citizens who logged on to a suspected network were also targeted”. He also underlined that national intelligence agencies used legal reinterpretation of old legislation to provide them with competence or authorization to conduct mass surveillance not foreseen when the laws had been drafted. Responding to a question as to whether Amnesty International and Human Rights Watch had been placed under NSA surveillance, Edward Snowden revealed that the NSA “has specifically targeted either leaders or staff members in a number of civil and non-governmental organizations … including domestically within the borders of the United States.” He concluded that mass surveillance should be abandoned in favour of individual targeted surveillance, which he said was more effective and respectful of human rights.
Hearing (Video) Hearing (Podcast) Press Article
Amnesty International publishes second edition of Fair Trial Manual
On 9 April, Amnesty International published the second edition of its Fair Trial Manual, updated to take into consideration developments in the law and jurisprudence following the introduction of anti-terrorism restrictions and measures after the attacks of 11 September 2001. The Manual “is a practical and authoritative guide to international and regional standards for fair trial. These standards set out minimum guarantees designed to protect the right to a fair trial in criminal proceedings. The Manual explains how fair trial rights have been interpreted by human rights bodies and by international courts. It covers rights before and during trial, and during appeals. It also covers special cases, including death penalty trials, cases brought against children, and fair trial rights during armed conflict.”
Manual
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