terrorism and human rights reader part i (1)
TRANSCRIPT
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
1/108
1
Pál Sonnevend
Terrorism and Human Rights
Cases and materials
Part I
2013
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
2/108
2
INTERNATIONAL CONVENTION
FOR THE SUPPRESSION
OF THE FINANCING
OF TERRORISM
UNITED NATIONS
1999excerpts
[…]
Article 1
For the purposes of this Convention:
1. „Funds” means assets of every kind, whether tangible or intangible, movable or
immovable, however acquired, and legal documents or instruments in any form, including
electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to,
bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds,
drafts, letters of credit.2. „A State or governmental facility” means any permanent or temporary facility or
conveyance that is used or occupied by representatives of a State, members of Government,
the legislature or the judiciary or by officials or employees of a State or any other public
authority or entity or by employees or officials of an intergovernmental organization in
connection with their official duties.
3.”Proceeds” means any funds derived from or obtained, directly or indirectly, through
the commission of an offence set forth in article 2.
Article 2
1. Any person commits an offence within the meaning of this Convention if that person byany means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the
intention that they should be used or in the knowledge that they are to be used, in full or in
part, in order to carry out:
(a) An act which constitutes an offence within the scope of and as defined in one of
the treaties listed in the annex; or
(b) Any other act intended to cause death or serious bodily injury to a civilian, or to
any other person not taking an active part in the hostilities in a situation of armed conflict,
when the purpose of such act, by its nature or context, is to intimidate a population, or to
compel a government or an international organization to do or to abstain from doing any act.
2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a
State Party which is not a party to a treaty listed in the annex may declare that, in the
application of this Convention to the State Party, the treaty shall be deemed not to be included
in the annex referred to in paragraph 1, subparagraph (a). The declaration shall cease to have
effect as soon as the treaty enters into force for the State Party, which shall notify the
depositary of this fact;
(b) When a State Party ceases to be a party to a treaty listed in the annex, it may
make a declaration as provided for in this article, with respect to that treaty.
3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that
the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs
(a) or (b).
4. Any person also commits an offence if that person attempts to commit an offence as set
forth in paragraph 1 of this article.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
3/108
3
5. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this
article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4
of this article;
(c) Contributes to the commission of one or more offences as set forth in paragraphs 1 or 4 of this article by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of an offence as set
forth in paragraph 1 of this article; or
(ii) Be made in the knowledge of the intention of the group to commit an offence as
set forth in paragraph 1 of this article.
Article 3
This Convention shall not apply where the offence is committed within a single State,the alleged offender is a national of that State and is present in the territory of that State and
no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise
jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those
cases.
Article 4
Each State Party shall adopt such measures as may be necessary:
(a) To establish as criminal offences under its domestic law the offences set forth in
article 2;
(b) To make those offences punishable by appropriate penalties which take intoaccount the grave nature of the offences.
Article 5
1. Each State Party, in accordance with its domestic legal principles, shall take the
necessary measures to enable a legal entity located in its territory or organized under its laws
to be held liable when a person responsible for the management or control of that legal entity
has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal,
civil or administrative.
2. Such liability is incurred without prejudice to the criminal liability of individuals having
committed the offences.
3. Each State Party shall ensure, in particular, that legal entities liable in accordance with
paragraph 1 above are subject to effective, proportionate and dissuasive criminal, civil or
administrative sanctions. Such sanctions may include monetary sanctions.
Article 6
Each State Party shall adopt such measures as may be necessary, including, where
appropriate, domestic legislation, to ensure that criminal acts within the scope of this
Convention are under no circumstances justifiable by considerations of a political,
philosophical, ideological, racial, ethnic, religious or other similar nature.
Article 7
1. Each State Party shall take such measures as may be necessary to establish its
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
4/108
4
jurisdiction over the offences set forth in article 2 when:
(a) The offence is committed in the territory of that State;
(b) The offence is committed on board a vessel flying the flag of that State or an
aircraft registered under the laws of that State at the time the offence is committed;
(c) The offence is committed by a national of that State.
2. A State Party may also establish its jurisdiction over any such offence when:(a) The offence was directed towards or resulted in the carrying out of an offence
referred to in article 2, paragraph 1, subparagraph (a) or (b), in the territory of or against a
national of that State;
(b) The offence was directed towards or resulted in the carrying out of an offence
referred to in article 2, paragraph 1, subparagraph (a) or (b), against a State or government
facility of that State abroad, including diplomatic or consular premises of that State;
(c) The offence was directed towards or resulted in an offence referred to in article 2,
paragraph 1, subparagraph (a) or (b), committed in an attempt to compel that State to do or
abstain from doing any act;
(d) The offence is committed by a stateless person who has his or her habitualresidence in the territory of that State;
(e) The offence is committed on board an aircraft which is operated by the
Government of that State.
3. Upon ratifying, accepting, approving or acceding to this Convention, each State Party
shall notify the Secretary-General of the United Nations of the jurisdiction it has established in
accordance with paragraph 2. Should any change take place, the State Party concerned shall
immediately notify the Secretary-General.
4. Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over the offences set forth in article 2 in cases where the alleged offender is
present in its territory and it does not extradite that person to any of the States Parties thathave established their jurisdiction in accordance with paragraphs 1 or 2.
5. When more than one State Party claims jurisdiction over the offences set forth in article
2, the relevant States Parties shall strive to coordinate their actions appropriately, in particular
concerning the conditions for prosecution and the modalities for mutual legal assistance.
6. Without prejudice to the norms of general international law, this Convention does not
exclude the exercise of any criminal jurisdiction established by a State Party in accordance
with its domestic law.
Article 8
1. Each State Party shall take appropriate measures, in accordance with its domestic legal
principles, for the identification, detection and freezing or seizure of any funds used or
allocated for the purpose of committing the offences set forth in article 2 as well as the
proceeds derived from such offences, for purposes of possible forfeiture.
2. Each State Party shall take appropriate measures, in accordance with its domestic legal
principles, for the forfeiture of funds used or allocated for the purpose of committing the
offences set forth in article 2 and the proceeds derived from such offences.
3. Each State Party concerned may give consideration to concluding agreements on the
sharing with other States Parties, on a regular or case-by-case basis, of the funds derived
from the forfeitures referred to in this article.
4. Each State Party shall consider establishing mechanisms whereby the funds derived
from the forfeitures referred to in this article are utilized to compensate the victims of offences
referred to in article 2, paragraph 1, subparagraph (a) or (b), or their families.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
5/108
5
5. The provisions of this article shall be implemented without prejudice to the rights of
third parties acting in good faith.
Article 9
1. Upon receiving information that a person who has committed or who is alleged to have
committed an offence set forth in article 2 may be present in its territory, the State Partyconcerned shall take such measures as may be necessary under its domestic law to investigate
the facts contained in the information.
2. Upon being satisfied that the circumstances so warrant, the State Party in whose
territory the offender or alleged offender is present shall take the appropriate measures under
its domestic law so as to ensure that person=s presence for the purpose of prosecution or
extradition.
3. Any person regarding whom the measures referred to in paragraph 2 are being taken
shall be entitled to:
(a) Communicate without delay with the nearest appropriate representative of the
State of which that person is a national or which is otherwise entitled to protect that person=srights or, if that person is a stateless person, the State in the territory of which that person
habitually resides;
(b) Be visited by a representative of that State;
(c) Be informed of that person=s rights under subparagraphs (a) and (b).
4. The rights referred to in paragraph 3 shall be exercised in conformity with the laws and
regulations of the State in the territory of which the offender or alleged offender is present,
subject to the provision that the said laws and regulations must enable full effect to be given to
the purposes for which the rights accorded under paragraph 3 are intended.
5. The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any
State Party having a claim to jurisdiction in accordance with article 7, paragraph 1,subparagraph (b), or paragraph 2, subparagraph (b), to invite the International Committee of
the Red Cross to communicate with and visit the alleged offender.
6. When a State Party, pursuant to the present article, has taken a person into custody, it
shall immediately notify, directly or through the Secretary-General of the United Nations, the
States Parties which have established jurisdiction in accordance with article 7, paragraph 1 or
2, and, if it considers it advisable, any other interested States Parties, of the fact that such
person is in custody and of the circumstances which warrant that person=s detention. The
State which makes the investigation contemplated in paragraph 1 shall promptly inform the
said States Parties of its findings and shall indicate whether it intends to exercise jurisdiction.
Article 10
1. The State Party in the territory of which the alleged offender is present shall, in cases to
which article 7 applies, if it does not extradite that person, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to submit the case
without undue delay to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State. Those authorities shall take their
decision in the same manner as in the case of any other offence of a grave nature under the
law of that State.
2. Whenever a State Party is permitted under its domestic law to extradite or otherwise
surrender one of its nationals only upon the condition that the person will be returned to that
State to serve the sentence imposed as a result of the trial or proceeding for which the
extradition or surrender of the person was sought, and this State and the State seeking the
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
6/108
6
extradition of the person agree with this option and other terms they may deem appropriate,
such a conditional extradition or surrender shall be sufficient to discharge the obligation set
forth in paragraph 1.
Article 11
1. The offences set forth in article 2 shall be deemed to be included as extraditableoffences in any extradition treaty existing between any of the States Parties before the entry
into force of this Convention. States Parties undertake to include such offences as extraditable
offences in every extradition treaty to be subsequently concluded between them.
2. When a State Party which makes extradition conditional on the existence of a treaty
receives a request for extradition from another State Party with which it has no extradition
treaty, the requested State Party may, at its option, consider this Convention as a legal basis
for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the
other conditions provided by the law of the requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty
shall recognize the offences set forth in article 2 as extraditable offences between themselves,subject to the conditions provided by the law of the requested State.
4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of
extradition between States Parties, as if they had been committed not only in the place in
which they occurred but also in the territory of the States that have established jurisdiction in
accordance with article 7, paragraphs 1 and 2.
5. The provisions of all extradition treaties and arrangements between States Parties with
regard to offences set forth in article 2 shall be deemed to be modified as between States
Parties to the extent that they are incompatible with this Convention.
[…]
Annex
1. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on
16 December 1970.
2. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,
done at Montreal on 23 September 1971.
3. Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the
United Nations on 14 December 1973.
4. International Convention against the Taking of Hostages, adopted by the General
Assembly of the United Nations on 17 December 1979.
5. Convention on the Physical Protection of Nuclear Material, adopted at Vienna on
3 March 1980.
6. Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988.
7. Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, done at Rome on 10 March 1988.
8. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
located on the Continental Shelf, done at Rome on 10 March 1988.
9. International Convention for the Suppression of Terrorist Bombings, adopted by the
General Assembly of the United Nations on 15 December 1997.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
7/108
7
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
8/108
8
Convention for the Protection of Human Rights and Fundamental Freedoms as amended by
Protocol No. 11
Rome, 4.XI.1950
Excerpts
[…]
Article 1 . Obligation to respect human rightsThe High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
SECTION I . RIGHTS AND FREEDOMS
Article 2 . Right to life
1 Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or
insurrection.
Article 3 . Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 . Prohibition of slavery and forced labour1 No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.
3 For the purpose of this article the term .forced or compulsory labour. shall not include:
a any work required to be done in the ordinary course of detention imposed according to the
provisions of Article 5 of this Convention or during conditional release from such detention;
b any service of a military character or, in case of conscientious objectors in countries where
they are recognised, service exacted instead of compulsory military service;
c any service exacted in case of an emergency or calamity threatening the life or well-being of the
community;
d any work or service which forms part of normal civic obligations.
Article 5 . Right to liberty and security
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or
in order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an offence or fleeing after having done
so;
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
9/108
9
d the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation orextradition.
2 Everyone who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article
shall be brought promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this
article shall have an enforceable right to compensation.
Article 6 . Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or the protection of the private life of
the parties so require, or to the extent strictly necessary in the opinion of the court in specialcircumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of
justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
Article 7 . No punishment without law
1 No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal
offence was committed.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
10/108
10
2 This article shall not prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognised by civilised nations.
Article 8 . Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.2 There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
Article 9 . Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom
to change his religion or belief and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief, in worship, teaching, practice andobservance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the rights and freedoms
of others.
Article 10 . Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 . Freedom of assembly and association
1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by
law and are necessary in a democratic society in the interests of national security or public
safety, for the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of the police or of
the administration of the State.
Article 12 . Right to marry
Men and women of marriageable age have the right to marry and to found a family, according
to the national laws governing the exercise of this right.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
11/108
11
Article 13 . Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity.
Article 14 . Prohibition of discriminationThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other status.
Article 15 . Derogation in time of emergency
1 In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the
extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, orfrom Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefor. It shall also inform the Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention are again being fully executed.
Article 16 . Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.
Article 17 . Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right
to engage in any activity or perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent than is provided for in the
Convention.
Article 18 . Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be
applied for any purpose other than those for which they have been prescribed.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
12/108
12
International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
Excerpts
[…]
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such legislative or other measures
as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have aneffective remedy, notwithstanding that the violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to
the enjoyment of all civil and political rights set forth in the present Covenant.
Article 4
1 . In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other obligations under
international law and do not involve discrimination solely on the ground of race, colour, sex, language,
religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this
provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately
inform the other States Parties to the present Covenant, through the intermediary of the Secretary-
General of the United Nations, of the provisions from which it has derogated and of the reasons by
which it was actuated. A further communication shall be made, through the same intermediary, on the
date on which it terminates such derogation.
[…]
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
13/108
13
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in thisarticle shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment of the
Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of
age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by
any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 8
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3.(a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour
may be imposed as a punishment for a crime, the performance of hard labour in pursuance of asentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is
under detention in consequence of a lawful order of a court, or of a person during conditional release
from such detention;
(ii) Any service of a military character and, in countries where conscientious objection is recognized,
any national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the
community;
(iv) Any work or service which forms part of normal civil obligations.
[…]
Article 11
No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
[…]
Ar ticle 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence, under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
14/108
14
offence was committed. If, subsequent to the commission of the offence, provision is made by law for
the imposition of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission
which, at the time when it was committed, was criminal according to the general principles of law
recognized by the community of nations.
Article 16
Everyone shall have the right to recognition everywhere as a person before the law.
[…]
Ar ticle 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion
or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to
have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
15/108
15
AMERICAN CONVENTION ON HUMAN RIGHTS "PACT OF SAN JOSE, COSTA RICA"
Article 27. Suspension of Guarantees
1. In time of war, public danger, or other emergency that threatens the independence or security of aState Party, it may take measures derogating from its obligations under the present Convention to theextent and for the period of time strictly required by the exigencies of the situation, provided thatsuch measures are not inconsistent with its other obligations under international law and do notinvolve discrimination on the ground of race, color, sex, language, religion, or social origin.
2. The foregoing provision does not authorize any suspension of the following articles: Article 3(Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment),Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12(Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right toParticipate in Government), or of the judicial guarantees essential for the protection of such rights.
3. Any State Party availing itself of the right of suspension shall immediately inform the other StatesParties, through the Secretary General of the Organization of American States, of the provisions theapplication of which it has suspended, the reasons that gave rise to the suspension, and the date set
for the termination of such suspension.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
16/108
16
ECtHR 01.07.1961, Lawless v. Ireland, Application No. 332/57
Excerpts
20. Whereas the Court is called upon to decide whether the detention of G.R. Lawless from 13th July
to 11th December 1957 under the Offences against the State (Amendment) Act, 1940, was justified,despite Articles 5 and 6 (art. 5, art. 6) of the Convention, by the right of derogation allowed to the
High Contracting Parties in certain exceptional circumstances under Article 15 (art. 15) of the
Convention;
[…]
22. Whereas it follows from these provisions that, without being released from all its undertakings
assumed in the Convention, the Government of any High Contracting Party has the right, in case of
war or public emergency threatening the life of the nation, to take measures derogating from its
obligations under the Convention other than those named in Article 15, paragraph 2 (art. 15-2), pro-
vided that such measures are strictly limited to what is required by the exigen-cies of the situation and
also that they do not conflict with other obligations under international law; whereas it is for the Courtto determine whether the conditions laid down in Article 15 (art. 15) for the exercise of the exceptional
right of derogation have been fulfilled in the present case;
(a) As to the existence of a public emergency threatening the life of the nation.
23. Whereas the Irish Government, by a Proclamation dated 5th July 1957 and published in the
Official Gazette on 8th July 1957, brought into force the ex-traordinary powers conferred upon it by
Part II of the Offences against the State (Amendment) Act, 1940, „to secure the preservation of public
peace and order―;
24. Whereas, by letter dated 20th July 1957 addressed to the Secretary-General of the Council of
Europe, the Irish Government expressly stated that „the deten -tion of persons under the Act is
considered necessary to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution―;
[…]
28. Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and
customary meaning of the words „other public emergency threatening the life of the nation― is
sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects
the whole population and constitutes a threat to the organised life of the community of which the State
is composed; whereas, having thus established the natural and customary meaning of this conception,
the Court must determine whether the facts and circumstances which led the Irish Government to
make their Proclamation of 5th July 1957 come within this conception; whereas the Court, after an
exami-nation, find this to be the case; whereas the existence at the time of a „public emergency
threatening the life of the nation―, was reasonably deduced by the Irish Government from a
combination of several factors, namely: in the first place, the existence in the territory of the Republic
of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its
purposes; secondly, the fact that this army was also operating outside the territory of the State, thus
seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady
and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of
1957;
29. Whereas, despite the gravity of the situation, the Government had suc-ceeded, by using means
available under ordinary legislation, in keeping public institutions functioning more or less normally,
but whereas the homicidal am-bush on the night 3rd to 4th July 1957 in the territory of Northern
Ireland near the border had brought to light, just before 12th July - a date, which, for histori-cal
reasons is particularly critical for the preservation of public peace and order - the imminent danger to
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
17/108
17
the nation caused by the continuance of unlawful ac-tivities in Northern Ireland by the IRA and
various associated groups, operating from the territory of the Republic of Ireland;
30. Whereas, in conclusion, the Irish Government were justified in declaring that there was a public
emergency in the Republic of Ireland threatening the life of the nation and were hence entitled,
applying the provisions of Article 15, paragraph 1 (art. 15-1), of Convention for the purposes for
which those provi-sions were made, to take measures derogating from their obligations under theConvention;
(b) As to whether the measures taken in derogation from obligations under the Convention were
„strictly required by the exigencies of the situation―.
31. Whereas Article 15, paragraph 1 (art. 15-1), provides that a High Contract-ing Party may derogate
from its obligations under the Convention only „to the extent strictly required by the exigencies of the
situation―; whereas it is there-fore necessary, in the present case, to examine whether the bringing
into force of Part II of the 1940 Act was a measure strictly required by the emergency existing in
1957;
[…]
36. Whereas, however, considering, in the judgment of the Court, that in 1957 the application of theordinary law had proved unable to check the growing danger which threatened the Republic of Ireland;
whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not
suffice to restore peace and order; whereas, in particular, the amassing of the necessary evidence to
convict persons involved in activities of the IRA and its splinter groups was meeting with great
difficulties caused by the military, secret and terrorist character of those groups and the fear they
created among the popula-tion; whereas the fact that these groups operated mainly in Northern Ireland,
their activities in the Republic of Ireland being virtually limited to the prepara-tion of armed raids
across the border was an additional impediment to the ga-thering of sufficient evidence; whereas the
sealing of the border would have had extremely serious repercussions on the population as a whole,
beyond the extent required by the exigencies of the emergency;Whereas it follows from the foregoing that none of the above-mentioned means would have made it
possible to deal with the situation existing in Ireland in 1957; whereas, therefore, the administrative
detention – as instituted under the Act (Amendment) of 1940 - of individuals suspected of intending to
take part in terrorist activities, appeared, despite its gravity, to be a measure required by the
circumstances;
37. Whereas, moreover, the Offences against the State (Amendment) Act of 1940, was subject to a
number of safeguards designed to prevent abuses in the operation of the system of administrative
detention; whereas the application of the Act was thus subject to constant supervision by Parliament,
which not only received precise details of its enforcement at regular intervals but could also at any
time, by a Resolution, annul the Government's Proclamation which had brought the Act into force;
whereas the Offences against the State (Amendment) Act 1940, provided for the establishment of a
„Detention Commission― made up of three members, which the Government did in fact set up, the
members being an officer of the Defence Forces and two judges; whereas any person de-tained under
this Act could refer his case to that Commission whose opinion, if favourable to the release of the
person concerned, was binding upon the Gov-ernment; whereas, moreover, the ordinary courts could
themselves compel the Detention Commission to carry out its functions;
Whereas, in conclusion, immediately after the Proclamation which brought the power of detention into
force, the Government publicly announced that it would release any person detained who gave an
undertaking to respect the Constitution and the Law and not to engage in any illegal activity, and that
the wording of this undertaking was later altered to one which merely required that the person detained
would undertake to observe the law and refrain from activities contrary to the 1940 Act; whereas the
persons arrested were informed immediately after their arrest that they would be released following
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
18/108
18
the undertaking in question; whereas in a democratic country such as Ireland the existence of this
guarantee of release given publicly by the Government constituted a legal obligation on the
Government to release all persons who gave the undertaking;
Whereas, therefore, it follows from the foregoing that the detention without trial provided for by the
1940 Act, subject to the above-mentioned safeguards, ap-pears to be a measure strictly required by the
exigencies of the situation within the meaning of Article 15 (art. 15) of the Convention;38. Whereas, in the particular case of G.R. Lawless, there is nothing to show that the powers of
detention conferred upon the Irish Government by the Of-fences against the State (Amendment) Act
1940, were employed against him, either within the meaning of Article 18 (art. 18) of the Convention,
for a pur-pose other than that for which they were granted, or within the meaning of Ar-ticle 15 (art.
15) of the Convention, by virtue of a measure going beyond what was strictly required by the situation
at that time; whereas on the contrary, the Commission, after finding in its Decision of 30th August
1958 on the admissi-bility of the Application that the Applicant had in fact submitted his Application
to it after having exhausted the domestic remedies, observed in its Report that the general conduct of
G.R. Lawless, „his association with persons known to be active members of the IRA, his conviction
for carrying incriminating documents and other circumstances were such as to draw upon theApplicant the gravest suspicion that, whether or not he was any longer a member, he still was con-
cerned with the activities of the IRA at the time of his arrest in July 1957; whe-reas the file also shows
that, at the beginning of G.R. Lawless's detention under Act No. 2 of 1940, the Irish Government
informed him that he would be re-leased if he gave a written undertaking „to respect the Constitution
of Ireland and the Laws― and not to „be a member of or assist any organisation that is an unlawful
organisation under the Offences against the State Act, 1939―; whereas in December 1957 the
Government renewed its offer in a different form, which was accepted by G.R. Lawless, who gave a
verbal undertaking before the De-tention Commission not to „take part in any activities that are illegal
under the Offences against the State Acts 1939 and 1940― and was accordingly imme -diately
released;[…]
As to whether the letter of 20th July 1957 from the Irish Government to the Secretary-General of the
Council of Europe was a sufficient notification for the purposes of Article 15, paragraph 3 (art. 15-3),
of the Convention.
42. Whereas Article 15, paragraph 3 (art. 15-3), of the Convention provides that a Contracting Party
availing itself of the right of derogation under paragraph 1 of the same Article (art. 15-1) shall keep the
Secretary-General of the Council of Europe fully informed of the measures which it has taken and the
reasons therefore and shall also inform him when such measures have ceased to operate;
43. Whereas, in the present case, the Irish Government, on 20th July 1957, sent the Secretary-General
of the Council of Europe a letter informing him - as is stated therein: „in compliance with Article 15
(3) (art. 15-3) of the Convention― - that Part II of the Offences against the State (Amendment) Act,
1940, had been brought into force on 8th July 1957 […] whereas the Irish Government explained in
the said letter that the measure in question was „considered neces-sary to prevent the commission of
offences against public peace and order and to prevent the maintaining of military or armed forces
other than those autho-rised by the Constitution―;
[…]
47. Whereas the Court is called upon in the first instance, to examine whether, in pursuance of
paragraph 3 of Article 15 (art. 15-3) of the Convention, the Sec-retary-General of the Council of
Europe was duly informed both of the meas-ures taken and of the reason therefore; whereas the Court
notes that a copy of the Offences against the State (Amendment) Act, 1940, and a copy of the Proc-
lamation of 5th July, published on 8th July 1957, bringing into force Part II of the aforesaid Act were
attached to the letter of 20th July; that it was explained in the letter of 20th July that the measures had
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
19/108
19
been taken in order „to prevent the commission of offences against public peace and order and to
prevent the maintaining of military or armed forces other than those authorised by the Con-stitution―;
that the Irish Government thereby gave the Secretary-General suffi-cient information of the measures
taken and the reasons therefore; that, in the second place, the Irish Government brought this
information to the Secretary-General's attention only twelve days after the entry into force of the
measures derogating from their obligations under the Convention; and that the notifica-tion wastherefore made without delay […]
Whereas the Court accordingly finds that, in the present case, the Irish Govern-ment fulfilled their
obligations as Party to the Convention under Article 15, paragraph 3 (art. 15-3), of the Convention
[…]
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
20/108
20
ECtHR 18.01.1978, Ireland v. United Kingdom, Application No. 5310/71
On the „extent strictly required―
206. The Contracting States may make use of their right of derogation only „to the extent strictly
required by the exigencies of the situation―. The Irish Gov-ernment consider the „extent strictly
required― to have been exceeded, whereas the British Government and the Commission assert thecontrary.
The role of the Court
207. The limits on the Court‘s powers of review […] are particularly apparent where Article 15 (art.
15) is concerned.
It falls in the first place to each Contracting State, with its responsibility for „the life of [its] nation―,
to determine whether that life is threatened by a „public emergency― and, if so, how far it is
necessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the press-ing needs of the moment, the national authorities are in principle in a better po-
sition than the international judge to decide both on the presence of such an emergency and on the
nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leavesthose authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the
Commission, is responsible for ensuring the observance of the States‘ engagements (Article 19) (art.
19), is empower ed to rule on whether the States have gone beyond the „extent strictly required by the
exigen-cies― of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp.
57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European
supervision.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
21/108
21
ECtHR 26.05.1993, Brannigan and McBride v. United Kingdom, Application No. 14553/89;
14554/89
36. The applicants, Mr Brannigan and Mr McBride, were detained under sec-tion 12 (1) (b) of the
1984 Act in early January 1989 very shortly after the Gov-ernment‘s derogation of 23 December 1988under Article 15 (art. 15) of the Convention […] Their detention lasted for periods of six days,
fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respective-ly […].
They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The
relevant parts of Article 5 (art. 5) are as follows:
„1. Everyone has the right to liberty and security of person. No one shall be de prived of his liberty
save in the following cases and in accordance with a pro-cedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence ...;
...3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article
(art. 5-1-c) shall be brought promptly before a judge or oth-er officer authorised by law to exercise
judicial power ...
...
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this
Article (art. 5) shall have an enforceable right to compen-sation.―
37. The Government, noting that both of the applicants were detained for longer periods than the
shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan
and Others, conceded that the require-ment of promptness had not been respected in the present cases
(see paragraph 30 above). They further accepted that, in the absence of an enforceable right tocompensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not
been complied with.
Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3
and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).
38. However, the Government further submitted that the failure to observe these requirements of
Article 5 (art. 5) had been met by their derogation of 23 De-cember 1988 under Article 15 (art. 15) of
the Convention. The Court must therefore examine the validity of the Government‘s derogation in the
light of this provision. It recalls at the outset that the question whether any derogation 61
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
22/108
22
from the United Kingdom‘s obligations under the Convention might be permiss -ible under Article 15
(art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court
in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).
Validity of the United Kingdom‘s derogation under Article 15 (art. 15)
[…]
41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, inderogating from safeguards recognised as essential for the pro-tection of non-derogable rights such as
Articles 2 and 3 (art. 2, art. 3), the na-tional authorities were to be afforded a wide margin of
appreciation. This was especially so where the emergency was of a quasi-permanent nature such as
that existing in Northern Ireland. To do so would also be inconsistent with the Bro-gan and Others
judgment where the Court had regarded judicial control as one of the fundamental principles of a
democratic society and had already - they claimed - extended to the Government a margin of
appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern
Ireland.
42. In their written submissions, Amnesty International maintained that strict scrutiny was required by
the Court when examining derogation from fundamen-tal procedural guarantees which were essentialfor the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights
and the Committee on the Administration of Justice („Liberty and Others―) submitted for their part
that, if States are to be allowed a margin of appreciation at all, it should be narrower the more
permanent the emergency becomes.
43. The Court recalls that it falls to each Contracting State, with its responsibili- ty for „the life of [its]
nation―, to determine whether that life is threatened by a „public emergency― and, if so, how far it is
necessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the pressing needs of the moment, the national authorities are in principle in a better
position than the international judge to decide both on the presence of such an emergency and on the
nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin ofappreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).
Nevertheless, Contracting Parties do not enjoy an unlimited power of apprecia-tion. It is for the Court
to rule on whether inter alia the States have gone beyond the „extent strictly required by the
exigencies― of the crisis. The domestic mar -gin of appreciation is thus accompanied by a European
supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate
weight to such relevant factors as the nature of the rights affected by the deroga-tion, the
circumstances leading to, and the duration of, the emergency situation.
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
23/108
23
ECtHR 19.02.2009 A. and Others v. UK, Application. no. 3455/05
Excerpts
3. The merits
161. The Court must first ascertain whether the applicants' detention was permissible under Article 5 §1(f), because if that subparagraph does provide a defence to the complaints under Article 5 § 1, it willnot be necessary to determine whether or not the derogation was valid (see Ireland v. the UnitedKingdom, judgment of 18 January 1978, § 191, Series A no. 25).
a. Whether the applicants were lawfully detained in accordance with Article 5 § 1(f) of the Convention
162. Article 5 enshrines a fundamental human right, namely the protection of the individual againstarbitrary interference by the State with his or her right to liberty (Aksoy v. Turkey, judgment of 18
December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees itcontains apply to “everyone”.
163. Sub- paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds onwhich persons may be deprived of their liberty and no deprivation of liberty will be lawful unless itfalls within one of those grounds (Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR2008). One of the exceptions, contained in subparagraph (f), permits the State to control the liberty ofaliens in an immigration context (idem., § 64). The Government contend that the applicants' detentionwas justified under the second limb of that subparagraph and that they were lawfully detained as persons “against whom action is being taken with a view to deportation or extradition”.
164. Article 5 § 1(f) does not demand that detention be reasonably considered necessary, for exampleto prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the
second limb of Article 5 § 1(f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention
will cease to be permissible under Article 5 § 1(f) (Chahal, cited above, § 113). The deprivation ofliberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the questionwhether “a procedure prescribed by law” has been followed, the Convention refers essentially tonational law and lays down the obligation to conform to the substantive and procedural rules ofnational law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires inaddition that any deprivation of liberty should be in keeping with the purpose of protecting theindividual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can becompatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of
conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (Saadi v. the United Kingdom, cited above, §67). To avoid being branded as arbitrary, detention under Article 5 § 1(f) must be carried out in goodfaith; it must be closely connected to the ground of detention relied on by the Government; the placeand conditions of detention should be appropriate; and the length of the detention should not exceed
that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom,cited above, § 74).
165. The first, third, and sixth applicants were taken into detention under the 2001 Act on 19December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant, on 23October 2002; the ninth applicant, on 22 April 2002; the tenth applicant, on 14 January 2003; and theeleventh applicant, on 2 October 2003. None of these applicants was released until 10-11 March 2005.The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was releasedon bail subject to stringent conditions. The second and fourth applicants were also detained on 19
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
24/108
24
December 2001 but the second applicant was released on 22 December 2001, following his decision to
return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision togo to France. The applicants were held throughout in high security conditions at either Belmarsh or
Woodhill Prisons or Broadmoor Hospital. It cannot, therefore, be disputed that they were deprived oftheir liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, judgment of8 June 1976, Series A no. 22).
166. The applicants were foreign nationals whom the Government would have deported from theUnited Kingdom had it been possible to find a State to receive them where they would not face a realrisk of being subjected to treatment contrary to Article 3 of the Convention (Saadi v. Italy [GC], no.37201/06, §§ 125 and 127, ECHR 2008). Although the respondent State's obligations under Article 3 prevented the removal of the applicants from the United Kingdom, the Secretary of State nonethelessconsidered it necessary to detain them for security reasons, because he believed that their presence inthe country was a risk to national security and suspected that they were or had been concerned in thecommission, preparation or instigation of acts of international terrorism and were members of,
belonged to or had links with an international terrorist group. Such detention would have beenunlawful under domestic law prior to the passing of Part 4 of the 2001 Act, since the 1984 judgment in
Hardial Singh entailed that the power of detention could not be exercised unless the person subject tothe deportation order could be deported within a reasonable time (see paragraph 87 above). Thus, itwas stated in the derogation notice lodged under Article 15 of the Convention that extended powers
were required to arrest and detain a foreign national “where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic
law powers” (see paragraph 11 above).
167. One of the principal assumptions underlying the derogation notice, the 2001 Act and the decisionto detain the applicants was, therefore, that they could not be removed or deported “for the time being”(see paragraphs 11 and 90 above). There is no evidence that during the period of the applicants'detention there was, except in respect of the second and fourth applicants, any realistic prospect oftheir being expelled without this giving rise to a real risk of ill-treatment contrary to Article 3. Indeed,
the first applicant is stateless and the Government have not produced any evidence to suggest thatthere was another State willing to accept him. It does not appear that the Government entered into
negotiations with Algeria or Jordan, with a view to seeking assurances that the applicants who werenationals of those States would not be ill-treated if returned, until the end of 2003 and no suchassurance was received until August 2005 (see paragraph 86 above). In these circumstances, the Court
does not consider that the respondent Government's policy of keeping the possibility of deporting theapplicants “under active review” was sufficiently certain or determinative to amount to “action ...
being taken with a view to deportation”.
168. The exceptions to this conclusion were the second applicant, who was detained for only threedays prior to his return to Morocco, and the fourth applicant, who left the United Kingdom for Franceon 13 March 2002, having been detained for just under three months (see paragraphs 35 and 41above). The Court considers that during these periods of detention it could reasonably be said thataction was being taken against these applicants with a view to deportation, in that it appears that the
authorities were still at that stage in the course of establishing their nationalities and investigatingwhether their removal to their countries of origin or to other countries would be possible (seeGebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, 26 April 2007). Accordingly , there has been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants.
169. It is true that even the applicants who were detained the longest were not held for as long as theapplicant in Chahal (cited above), wher e the Court found no violation of Article 5 § 1 despite his
imprisonment for over six years. However, in the Chahal case, throughout the entire period of thedetention, proceedings were being actively and diligently pursued, before the domestic authorities and
the Court, in order to determine whether it would be lawful and compatible with Article 3 of the
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
25/108
25
Convention to proceed with the applicant's deportation to India. The same cannot be said in the present
case, where the proceedings have, instead, been primarily concerned with the legality of the detention.
170. In the circumstances of the present case it cannot be said that the first, third, fifth, sixth, seventh,eighth, ninth, tenth and eleventh applicants were persons “against whom action [was] being taken witha view to deportation or extradition”. Their detention did not, therefore, fall within the exception to theright to liberty set out in paragraph 5 § 1(f) of the Convention. This is a conclusion which was also,expressly or impliedly, reached by a majority of the members of the House of Lords (see paragraph 17above).
171. It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that theapplicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat tonational security. The Court does not accept the Government's argument that Article 5 § 1 permits a balance to be struck between the individual's right to liberty and the State's interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudenceunder sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive
list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aimsof Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court,it cannot be made to fit by an appeal to the need to balance the interests of the State against those ofthe detainee.
172. The Court recalls that it has, on a number of occasions, found internment and preventivedetention without charge to be incompatible with the fundamental right to liberty under Article 5 § 1,in the absence of a valid derogation under Article 15 (see Lawless v. Ireland (No. 3), judgment of 1July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, cited above, §§ 194 -196 and212-213). It must now, therefore, consider whether the United Kingdom's derogation was valid.
b. Whether the United Kingdom validly derogated from its obligations under Article 5 § 1 of the
Convention
i. The Court's approach
173. The Court recalls that it falls to each Contracting State, with its responsibility for “the life of [its]
nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it isnecessary to go in attempting to overcome the emergency. By reason of their direct and continuous
contact with the pressing needs of the moment, the national authorities are in principle better placedthan the international judge to decide both on the presence of such an emergency and on the nature andscope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of
appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an
unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the“extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thusaccompanied by a European supervision. In exercising this supervision, the Court must giveappropriate weight to such relevant factors as the nature of the rights affected by the derogation andthe circumstances leading to, and the duration of, the emergency situation (Ireland v. the UnitedKingdom, cited above, § 207; Brannigan and McBride v. the United Kingdom, judgment of 26 May
1993, § 43, Series A no. 258; Aksoy, cited above, § 68).
174. The object and purpose underlying the Convention, as set out in Article 1, is that the rights andfreedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the
machinery of protection established by the Convention that the national systems themselves provideredress for breaches of its provisions, with the Court exercising a supervisory role subject to the
principle of subsidiarity (Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V).Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
26/108
26
margin of appreciation under Article 15. In the unusual circumstances of the present case, where the
highest domestic court has examined the issues relating to the State's derogation and concluded thatthere was a public emergency threatening the life of the nation but that the measures taken in response
were not strictly required by the exigencies of the situation, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted ormisapplied Article 15 or the Court's jurisprudence under that Article or reached a conclusion which
was manifestly unreasonable.
ii. Whether there was a “public emergency threatening the life of the nation”
175. The applicants argued that there had been no public emergency threatening the life of the Britishnation, for three main reasons: first, the emergency was neither actual nor imminent; secondly, it wasnot of a temporary nature; and, thirdly, the practice of other States, none of which had derogated fromthe Convention, together with the informed views of other national and international bodies, suggestedthat the existence of a public emergency had not been established.
176. The Court recalls that in Lawless, cited above, § 28, it held that in the context of Article 15 the
natural and customary meaning of the words “other public emergency threatening the life of thenation” was sufficiently clear and that they referred to “an exceptional situation of crisis or emergencywhich affects the whole population and constitutes a threat to the organised life of the community ofwhich the State is composed”. In the Greek Case (1969) 12 YB 1, § 153, the Commission held that, inorder to justify a derogation, the emergency should be actual or imminent; that it should affect thewhole nation to the extent that the continuance of the organised life of the community was threatened;and that the crisis or danger should be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, were plainlyinadequate. In Ireland v United Kingdom, cited above, §§ 205 and 212, the parties were agreed, aswere the Commission and the Court, that the Article 15 test was satisfied, since terrorism had for anumber of years represented “a particularly far -reaching and acute danger for the territorial integrity ofthe United Kingdom, the institutions of the six counties and the lives of the province's inhabitants”.
The Court reached similar conclusions as regards the continuing security situation in Northern Irelandin Brannigan and McBride, cited above, and Marshall v. the United Kingdom (dec.), no. 41571/98, 10
July 2001. In Aksoy, cited above, it accepted that Kurdish separatist violence had given rise to a“public emergency” in Turkey.
177. Before the domestic courts, the Secretary of State adduced evidence to show the existence of athreat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence wasadduced before SIAC. All the national judges accepted that the danger was credible (with theexception of Lord Hoffmann, who did not consider that it was of a nature to constitute “a threat to thelife of the nation”: see paragraph 18 above). Although when the derogation was made no al'Qaedaattack had taken place within the territory of the United Kingdom, the Court does not consider that the
national authorities can be criticised, in the light of the evidence available to them at the time, forfearing that such an attack was “imminent”, in that an atrocity might be committed without warning atany time. The requirement of imminence cannot be interpreted so narrowly as to require a State to waitfor disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attackwas, tragically, shown by the bombings and attempted bombings in London in July 2005 to have beenvery real. Since the purpose of Article 15 is to permit States to take derogating measures to protecttheir populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation. The Court isnot precluded, however, from having regard to information which comes to light subsequently (see,mutatis mutandis, Vilvarajah and others v. the United Kingdom, judgment of 30 October 1991, §
107(2), Series A no. 215).
178. While the United Nations Human Rights Committee has observed that measures derogating fromthe provisions of the ICCPR must be of “an exceptional and temporary nature” (see paragraph 109
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
27/108
27
above), the Court's case-law has never, to date, explicitly incorporated the requirement that the
emergency be temporary, although the question of the proportionality of the response may be linked tothe duration of the emergency. Indeed, the cases cited above, relating to the security situation in
Northern Ireland, demonstrate that it is possible for a “public emergency” within the meaning ofArticle 15 to continue for many years. The Court does not consider that derogating measures put in place in the immediate aftermath of the al'Qaeda attacks in the United States of America, and reviewed
on an annual basis by Parliament, can be said to be invalid on the ground that they were not“temporary”.
179. The applicants' argument that the life of the nation was not threatened is principally founded onthe dissenting opinion of Lord Hoffman, who interpreted the words as requiring a threat to theorganised life of the community which went beyond a threat of serious physical damage and loss oflife. It had, in his view, to threaten “our institutions of gove rnment or our existence as a civilcommunity” (see paragraph 18 above). However, the Court has in previous cases been prepared to takeinto account a much broader range of factors in determining the nature and degree of the actual or
imminent threat to the “nation” and has in the past concluded that emergency situations have existedeven though the institutions of the State did not appear to be imperilled to the extent envisaged by
Lord Hoffman.
180. As previously stated, the national authorities enjoy a wide margin of appreciation under Article15 in assessing whether the life of their nation is threatened by a public emergency. While it is strikingthat the United Kingdom was the only Convention State to have lodged a derogation in response to the
danger from al'Qaeda, although other States were also the subject of threats, the Court accepts that itwas for each Government, as the guardian of their own people's safety, to make their own assessmenton the basis of the facts known to them. Weight must, therefore, attach to the judgment of the UnitedKingdom's executive and Parliament on this question. In addition, significant weight must be accordedto the views of the national courts, who were better placed to assess the evidence relating to theexistence of an emergency.
181. On this first question, the Court accordingly shares the view of the majority of the House ofLords that there was a public emergency threatening the life of the nation.
Iii Whether the measures were strictly required by the exigencies of the situation
182. Article 15 provides that the State may take measures derogating from its obligations under theConvention only “to the extent strictly required by the exigencies of the situation”. As previouslystated, the Court considers that it should in principle follow the judgment of the House of Lords on thequestion of the proportionality of the applicants' detention, unless it can be shown that the nationalcourt misinterpreted the Convention or the Court's case-law or reached a conclusion which was
manifestly unreasonable. It will consider the Government's challenges to the House of Lords'
judgment against this background.
183. The Government contended, first, that the majority of the House of Lords should have afforded amuch wider margin of appreciation to the executive and Parliament to decide whether the applicants'detention was necessary. A similar argument was advanced before the House of Lords, where theAttorney General submitted that the assessment of what was needed to protect the public was a matter
of political rather than judicial judgment (see paragraph 19 above).
184. When the Court comes to consider a derogation under Article 15, it allows the national authoritiesa wide margin of appreciation to decide on the nature and scope of the derogating measures necessary
to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were“strictly required”. In particular, where a derogating measure encroaches upon a fundamental
Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine responseto the emergency situation, that it was fully justified by the special circumstances of the emergency
-
8/9/2019 Terrorism and Human Rights Reader Part I (1)
28/108
28
and that adequate safeguards were provided against abuse (see, for example, Brannigan and McBride,
cited above, §§ 48-66; Aksoy, cited above, §§ 71-84; and the principles outlined in paragraph 173above). The doctrine of the margin of appreciation has always been meant as a tool to define relations
between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the
applicants were deprived of their fundamental right to liberty over a long period of time. In any event,having regard to the careful way in which the House of Lords approached the issues, it cannot be said
that inadequate weight was given to the views of the executive or of Parliament.
185. The Government also submitted that the House of Lords erred in examining the legislation in theabstract rather than considering the applicants' concrete cases. However, in the Court's view, theapproach under Article 15 is necessarily focussed on the general situation pertaining in the countryconcerned, in the sense that the court - whether national or international - is required to examine themeasures that have been adopted in derogation of the Convention rights in question and to weigh them
against the nature of the threat to the nation posed by the emergency. Where, as here, the measures arefound to be disproportionate to that threat and to be discriminatory in their effect, there is no need to
go further and examine their application in the concrete case of each applicant.
186. The Government's third ground of challenge to the House of Lords' decision was directed principally at the approach taken towards the comparison between non-national and national suspectedterrorists. The Court, however, considers that the House of Lords was correct in holding that the
impugned powers were not to be seen as immigration measures, where a distinction between nationalsand non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence,was posed by both nationals and non-nationals. The choice by the Government and Parliame