Counter-terrorism: The EU and its Member States must respect and protect human rights and the rule of law

Brussels, March 2016. The 2015 terroristattacks in Paris and elsewhere - and the assertion by States that there is anelevated terrorist threat in the European Union (EU) - have led to a new set ofcounter-terrorism measures at both EU and national levels. These terroristattacks are heinous criminal acts which undermine human rights. International humanrights law itself requires that states must take appropriate measures toprevent and respond to acts of terrorism, in order to ensure the security andsafety of the people in their territories. The undersigned organisations recallthat counter-terrorism measures must always comply with the rule of law and humanrights obligations under EuropeanUnion and international law. Effective counter-terrorism measures and theprotection of human rights are not conflicting but are aimed at overlapping, complementary and mutually reinforcinggoals. In practice, widespread violations of human rights while counteringterrorism have proven to be counterproductive.

Theundersigned organisations acknowledge that states are facing substantialthreats to the security of their populations that require effective action.However, the extent of restrictions on human rights that result or could resultfrom adopted or contemplated security measures is significant. Transparency,information and meaningful participation of civil society are crucial to avoidexcessive or other arbitrary restrictions on human rights as a result ofcounter-terrorism laws and policies.

Anoverarching concern is the fast-track procedures used by EU institutions and EUMember States authorities to adopt counter-terrorism measures, for instance inthe Draft Directive on Combating Terrorism. This reduces the space formeaningful civil society participationand transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, whichis contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allowfor proper or, indeed, any impact assessments, as foreseen by the EU BetterRegulation Guidelines and Better Regulation tool 24. The shrinking spacefor civil society is a concerning reality not only outside the EU, but alsowithin its own borders.

Theundersigned organisations urge the EU and Member States to respect, protect andfulfil human rights and the rule of law:

Theright to be free from torture and cruel, inhuman or degrading treatment orpunishment.All States must comply with the absolute prohibition of torture andill-treatment and take effective measures to prevent any acts of torture orcruel, inhuman or degrading treatment or punishment. They must ensure thatallegations of such treatment are effectively and independently investigatedand the perpetrators brought to justice, and that victims have access toeffective remedies and reparations, including rehabilitation. States mustensure that statements and other information obtained through torture andill-treatment, including information obtained abroad, are not invoked as evidencein any proceedings, except against a person accused of torture.[1]This obligation includes a responsibility not to use or share torture-taintedinformation obtained in other States and should also cover EU agencies withcooperation agreements with third countries, such as Europol. As a guaranteeagainst ill-treatment within EU Member States, international fair trial rightsshould be respected, suspects arrested for terrorism offences should benotified of their rights effectively in accordance with international humanrights law and Directive 2012/13/EU and access to a lawyer should be ensured inaccordance with Directive 2013/48/EU. The important right of an arrested personto be brought promptly before a judicial authority upon arrest, asset out Article 5 European Convention on Human Rights (ECHR) and Article 9International Covenant on Civil and Political Rights (ICCPR), that amongstother things is a safeguard against prohibited ill-treatment, should also beclearly enshrined in EU law.

Noreturn to face human rights violations. All removals and expulsions of persons must respect the principle of non-refoulement, meaning that nobodymust be returned to a country where there are substantial grounds for believingthat he/she would be in danger of being subjected totorture, ill-treatment or other serious violations of human rights. [2]This principle must hold true for people convicted ofterrorism offences, or who are suspected of terrorism-related activity. Diplomaticassurances, which are typically not legally enforceable and are inherentlyunreliable, should not be considered as sufficient protection against torture,ill-treatment, unfair trial or arbitrary detention following removal.

The right to libertyand security of the person. Anyperson arrested or deprived of their liberty, including by administrativedetention, must have prompt access to judicial review of detention, and regularjudicial review thereafter. All detainees at all times have the right tochallenge the lawfulness of their detention through judicial proceedings. Theyhave a right to prompt and regular access to a lawyer, and the right to informtheir family of their detention. Deprivation of liberty is permissible only onthe grounds envisaged by Article 5(1) ECHR. Where the authorities possess crediblefacts or information giving rise to a reasonable suspicion that a person hascommitted an offence, they may arrest that person on suspicion of committing anoffence in accordance with Article 5(1)(c) ECHR and ensure all attendantguarantees, including the right to an adversarial hearing before a courtenabling the suspect to contest the reasonableness of the suspicion andensuring their access to materials necessary for challenging detentioneffectively. Proposals for administrative forms of detention based on suspicionagainst the person but which circumvent the protections of criminal procedure arein principle unlawful, at least in so far as the state concerned has notformally derogated from international human rights obligations, includingArticle 5 ECHR due to a state of emergency that threatens the life of thenation. Detentionmust even then be subject to strict criteria of necessity and proportionality,be subject to judicial review and allow for access to a lawyer. Whatever the basisfor detention, solitary confinement must only be imposed in exceptional casesas a last resort, for as short a time as possible and subject to independentreview, only pursuant to the authorisation by a competent authority and mustnever be prolonged. It can only be applied in conditions that ensurethe detainees rights to health, due process and protection againstill-treatment will not be violated.Effective access to legal counsel and consular services should be ensured atall times.

Rightto fair trial.Individuals suspected of terrorism-related offences should be investigated,charged and tried before independent and impartial courts within the ordinarycriminal justice system. Proceedings relating to terrorism offences sometimesinvolve evidence obtained from overseas operations, surveillance, intelligenceand military agencies, which may be relied upon to demonstrate aspects ofsubstantive offence definitions such as the individual’s intention and theirconcrete participation in terrorist offences; they may also be subject toparticular media scrutiny. Such proceedings must respect international law andstandards on the right to a fair trial, as protected by Article 14 ICCPR,Article 6 ECHR and supported by EU Directive 2010/64/EU on the right tointerpretation and translation in criminal proceedings, Directive 2012/13/EU onthe right to information in criminal proceedings, Directive 2013/48/EU on theright of access to a lawyer in criminal proceedings, and further Directivesadopted under Article 82(2) TFEU including on the presumption of innocence,safeguards for children and legal aid. These measures foresee no possibility ofgeneral derogation in times of emergency, and any limitations on the rightsconcerned must therefore be in accordance with the law, confined to what isnecessary and proportionate to the legitimate aim pursued, subject to judicial oversightand must not undermine the overall fairness of the trial. Outside the contextof criminal proceedings (e.g. asset freezing, security measures imposingrestrictions on individuals or organisations), the right to be heard and rightsof defence should also be fully respected, in particular by enabling the personconcerned to comment effectively upon the evidence which serves as the basisfor the decision against them.

Definitionof terrorism. Internationalhuman rights bodies have repeatedly expressed their concern that thepotentially vague and over-broad scope of the definitions of terrorism indomestic law in certain jurisdictions may contravene the principle of legalityand could lead to violations of human rights. Similar concerns apply to the definitionof terrorism under EU law. Member States and EU institutionsshould apply clear definitions of what constitutes a terrorist offence orancillary offences of terrorism within national criminal law, to protectagainst arbitrary or discriminatory application. Such definitions should ensurethat concrete individual participation in intended or actual acts of terrorismis required for the offence to be committed. “Receiving training for terrorism”should be confined to receiving such training wilfully. Moreover, it isessential that offences of “receiving training for terrorism” be subject toestablishing specific intent of carrying out, or contributing to the commissionof the principal offence as a result of the training. In the absence of suchintent, there is a risk of criminalising conduct, which lacks a sufficientproximate causal link with the main criminal offence. It should be clear thatthese new criminal law provisions do not apply to conductgoverned by international humanitarian law. States should give priority tofulfilling their existing international legal obligations to investigate andprosecute war crimes, crimes against humanity and other crimes underinternational law.

Theright to non-discrimination. Counter-terrorism policies have had adisproportionate impact on certain populations, including ethnic or religiousminorities, including Muslims, people of African and Asian descent, migrants,or people perceived to be from these groups. Evidence shows thedisproportionate effects on Muslim communities of the post 9/11 practices, suchas racial profiling. [3]Evidence also shows that more recent European States’ policies and practiceshave disproportionately targeted Muslims and people perceived to be Muslim.Ethnic profiling has been reported as on the rise in several EU member states.Intelligence services, police authorities and justice systems should beequipped to ensure fair and efficient policing and equal access to justice.Discrimination undermines social cohesion and society as a whole, and canreinforce radicalisation and violence. Equality and non-discriminationstandards must be complemented by specific policy strategies by Member Statesto address all forms of racism, including anti-Semitism, Afrophobia andIslamophobia. We welcome commitmentsmade by the European Commission at the European CommissionColloquium on fundamental rights in October 2015, but encourage concretefollow-up in terms of obligations for Member States.

Freedom of expression andpeaceful assembly. Freedomof expression is often curtailed in states proposals to counter radicalisationor counter-terrorism, for instance in measures criminalising glorification ofor apology for terrorism. The proposed Directive on combating terrorismprohibits a person from threateningto commit certain acts or to aid, abet or incite someone to do so,[4]even without any direct link to specific terrorist offences or activities insome cases.[5]The Directive should include a provision on freedom of expression, as in theCouncil’s 28 November 2008 Framework Decision on combating terrorism. Further,online surveillance and limits to freedom of expression should, in line withthe primary law of the EU and international law, be provided in by law, beproportionate, necessary and subject to data protection law. It would forinstance be important to ensure that such restrictions are targeted and subjectto judicial pre-authorisation with a requirement for reasonable suspicion.Internet companies should not be pressured into censoring online content, forexample by the threat of criminal sanctions, nor should they be forced tocooperate to undermine encryption, which would actually damage security online.Greater efforts should also be made to combatonline hate speech targeting groups at risk of discrimination, with morescrutiny to ensure such efforts meet human rights criteria. Counter-terrorismmeasures restricting freedom of assembly should be foreseeable and transparent,limited to what is necessary and proportionate in pursuit of a legitimate aim, basedon corroborated evidence, have time limits and be subject to independent orjudicial review. Blanket bans on demonstrations and other peaceful assemblies shouldbe avoided.

Theright to privacy. Theproposed Directive on the long-term storage and use of Passenger Name Record(PNR) for the purpose of profiling individuals as possible serious criminals orterrorists raises serious human rights concerns. These concerns include anexcessive data retention period, lack of evidence showing that these measuresare effective (in fact, the collection of data on an indiscriminateand mass basis has not been shown as necessary for preventing terrorist attacks) and the high risk ofdiscriminatory use of the data depending on the way algorithms or data analysesindicators are designed. The undersigned organisations are further concerned byindiscriminate mass surveillance practices carried-out by some Member States.In addition, PNR and other untargeted data mining and surveillances practicescan lead to discriminatory behaviour and the prohibited processing of datarevealing race, ethnic origin or religion through the use of proxies. Both inthis context and in context of the wider demands from law enforcement agenciesfor Internet companies to arbitrarily infringe on human rights, specialattention needs to be brought to the development and use of algorithms forcrime-fighting purposes.

Humanrights of asylum seekers and migrants. Migration is not a crime.States must refrain from policies and rhetoric that associate asylum-seekersand migrants with the threat of terrorism, and must not use counter-terrorismand counter-radicalisation measures as an excuse for curbing commitments tomigration and international protection. Additional “targeted” border checks, proposed in the context of thereform of Schengen, are problematic because they are based on travel andpersonal characteristics of individuals, and run the risk of ethnic profiling. Recentproposals to revise the mandate of EU border surveillance agency Frontex,and extend its competences, strengthen the security-oriented approach ofEuropean migration policy at the expense of migrants' human rights. These amendmentsmust take into account the human rights obligations of Member States and the EUand should be accompanied by adequate safeguards for the respect of the humanrights of EU citizens, migrants, asylum-seekers and refugees. Withoutsafeguards, monitoring and training for the new EU border and coastal guardsand frontline officers, risks of human rights violations are higher. Effortsshould be made to restore ethnic and religious minorities’ trust inlaw-enforcement authorities and promote community policing, using existing bestpractices such as through the hiring and training of policemen/women toengaging highly diverse communities in full respect of their cultural,religious and ethnic backgrounds. Effective policing relies on trust withincommunities.

Freedomof movement.Criminalising travel for terrorism, as in the proposed Directive on CombatingTerrorism, has a direct impact on freedom of movement. The right to leave a country, including one’s own, should only berestricted for specific and legitimate reasons and by proportionate means andnot on general assumptions. The right to re-enter your own country must neverbe restricted arbitrarily or disproportionately. Proposalswhich would have the effect of banning citizens from re-entering their countriesshould not be based on general assumptions. The potential withdrawal of anindividual’s ID or passport based on suspicion of radicalisation and without a judicialdecision based on an explicit and reasonable set of criteria set out in the lawis law is incompatible with the right to freedom of movement. The withdrawal ofEU citizenship for persons convicted of terrorism-related offences could leadto statelessness and additional arbitrary penalties.

Freedomof religion or belief.Article 18 of the ICCPR and Article 9 ECHR do not permit any limitation tofreedom to hold any thought, conscience and religion or the freedom to have orto adopt a religion or belief of one’s choice. Mosques should not be closedbased on their alleged radical affiliation, without clear elements pointing tothe establishment of responsibility for the commission of criminal acts of anyof the individuals who owned or administered them. Proposals to separate‘radical’ prisoners from the rest of detainees would seem difficult toimplement without unjustifiably infringing on freedom of religion as definitionsof “radical” are vague, and no Member State has formulated a reliable andnon-discriminatory list of indicators of radicalisation. The proposal in theNovember 2015 Council conclusions to “develop risk assessment tools and toolsto detect early signs of radicalisation in prisons” should ensure safeguards toprevent arbitrary profiling and protect freedom of religion and non-discriminationamong prisoners. Prisons need more education and other programmes and resourcesto fully play their rehabilitation and reintegration role. For some offenders,alternative measures to detention should be explored as a way to reduceovercrowding in prisons, reduce repeat offender rates as well as preventfurther radicalisation and encourage re-integration in society. Theadministration must organise meetings with former detainees who have managedtheir integration into society.

Humanrights education and social inclusion. The reaffirmation of “EUvalues” in the education systems fall short of addressing social exclusion andhuman rights violations, and therefore do not offer a real counter-narrative toradicalisation. Human rights and therule of law are universal values, with their basis in the Universal Declarationof Human Rights, and are not exclusive to any one region or culture. Comprehensive human rights educationprogrammes should be available in schools, including on digital rights,equality and non-discrimination, European history and minorities’ contributionsto Europe. Long-term social investment in education, housing, employment,health and social services are crucial to stop the massive disenfranchisementof sizeable parts of the population.

Counter-terrorismand human rights in external affairs. TheEU should implement the Operational Human Rights Guidance for EU externalcooperation actions addressing “Terrorism, Organised Crime and Cybersecurity:Integrating the Rights-Based Approach”. As committed to in the EU strategicframework on human rights and democracy, the EU should ensure that human rightsand rule of law are fully respected in the implementation of its activities,projects and agreements and are at the centre of all EU agencies, EUprogrammes, legislation, policies and mechanisms. Cooperation with thirdcountries requires a human rights risk assessment, and the setting-up ofmonitoring-protection-reporting mechanisms to ensure the full protection ofhuman rights. Countering terrorism should go hand in hand with activitiesensuring the full protection of human rights, including the rights of HumanRights Defenders and with concrete measures protecting the space for civilsociety in regard to counter-terrorism and security issues. Failure to takesuch measures has contributed to increases in radicalisation and impunity.

Signed:

WorldOrganisation Against Torture (OMCT)

AmnestyInternational

Associationfor the Prevention of Torture (APT)

European Association for the Defense of Human Rights(AEDH)

EuropeanDigital Rights (EDRi)

EuropeanNetwork Against Racism (ENAR)

FairTrials

Forumof European Muslim Youth and Student Organisations (FEMYSO)

InternationalCommission of Jurists (ICJ)

InternationalFederation of Action by Christians for the Abolition of Torture (FIACAT)

InternationalFederation of Human Rights (FIDH)

InternationalRehabilitation Council for Torture Victims (IRCT)

Open Society European Policy Institute

[1] See Article 15 ofthe United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment and the Guidelines to EU policytowards third countries on torture and other cruel, inhuman or degradingtreatment or punishment, General Affairs Council of18 April 2008.

[2] See Article 3 of the United Nations Convention againstTortureand Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33of the 1951 Convention Relating to the Status of Refugees and article 33 of the1951 Convention Relating to the Status of Refugees.

[3]From the European Network Against Racism (ENAR) Shadowreports, Open Society Foundations (OSF), Amnesty International and the EuropeanUnion Agency for Fundamental Rights (FRA).

[4] Articles 3(2)(i), 8 to 13 and 16of the draft Directive on combating terrorism.

[5] Article 15 of the draft Directive.