Read the 75th issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels.
The E-Bulletin on Counter-Terrorism and Human Rights provides hyperlinks to full texts of reports, statements, laws, court judgments and legal analysis. It aims at fostering an informed debate on the implications of counter-terrorism measures for the promotion and protection of human rights.
AFRICA & MIDDLE EAST
Mauritania: Canadian national convicted on terrorism related charges returned home
Egypt: Coup d’Etat, unlawful killings and more than a thousand deaths amid “anti-terrorism” calls
Bahrain: Terrorism legislation stiffened ahead of opposition protest
Iraq: Another 17 people executed after “terrorism” convictions; 70 executed so far this year
AMERICAS
USA: Further revelations on US spying and surveillance programme
USA: President Obama announces reforms but maintains surveillance programmes
USA: NSA spying and surveillance programmes under challenge in US courts
USA: Federal courts have no competence to stop Guantánamo force-feedings
USA: District Court stops Guantánamo “groin” searches but Appeals Court lets them continue pending appeal
USA: Legal challenge to “indefinite detention” law fails for lack of standing
USA: Bradley Manning sentenced to 35 years on multiple charges
USA/Italy: CIA rendition agent, convicted in Italy, reveals new elements of Abu Omar kidnapping
Chile: UN Special Rapporteur finds anti-terrorism law “disproportionately and unfairly” applied to Mapuche people
Panama: Authorities let CIA rendition officer, convicted in Italy, go to the US and avoid extradition to Italy
Paraguay:Senate approves emergency army deployment power against “terrorist” groups
ASIA & PACIFIC
India: ICJ and HRW urge government to stop execution of “terrorism” convict
Pakistan: Death penalty moratorium not renewed; imminence of “terrorism” convicts’ executions
Pakistan: 514 persons subject to enforced disappearance are in “terrorism” detention, admits Government
Indonesia: UN Committee concerned at excessive length of police custody
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK/Jordan: NSA leaks journalist’s partner detained for nine hours under Terrorism Act
UK: Parliamentary Committee begins inquiry into UK surveillance laws
UK: Government tables implementing rules of closed material proceedings in civil cases
UK: ETA suspect does not risk flagrant denial of fair trial in Spain, rules High Court
UK: Investigations into Northern Ireland extrajudicial killings excessively long, rules European Court
Germany: Germany knew of US mass surveillance and spying programme, reveals Der Spiegel
France: Human rights NGOs demand criminal investigations for NSA surveillance programme
France: French Government has mass surveillance programme too, reveals Le Monde
Ireland: High Court refuses provisional arrest warrant for Edward Snowden
The Netherlands: “Terrorism” suspect would risk ill-treatment if extradited to the US, rules Court of Appeal
Turkey: Investigations into ill-treatment in “terrorism” arrests insufficient, rules European Court
Turkey: Investigations into PKK supporter killing ineffective, holds European Court
Turkey: Anti-terrorism law application breached journalists’ freedom of expression, rules European Court
Turkey: Unregulated use of tear-gas grenades against demonstration was inhuman and degrading, rules European Court
Russian Federation: European Court finds violations of right to respect for the home in security forces’ counter-terrorism operation
Russian Federation: European Court judges find the State responsibility in several Chechen enforced disappearances cases
Tajikistan: UN Committee concerned at renditions to Tajikistan
Commonwealth of Independent States: Report unveils systemic system of renditions among CIS countries
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Drones use must comply with international law, says UN Secretary General
EU: Court of Justice annuls freezing order, confirms standards to hear confidential information
EU: Parliament orders inquiry into US spying and surveillance programmes
EU: UK NGOs concerned at consideration of confidential information proceedings rules at EU court
UN OCHA and Norwegian Refugee Council: Report unveils negative impact of counter-terrorism laws on humanitarian donations
E-BULLETIN no. 75
AFRICA & MIDDLE EAST
Mauritania: Canadian national convicted on terrorism related charges returned home
On 26 July, Canadian national Aaron Yoon returned to Canada after his release from prison in Mauritania on 23 July, having served his sentence. Aaron Yoon had been sentenced by a Mauritanian criminal court to two years of imprisonment for alleged ties with Al-Qaeda in the Islamic Maghreb (AQIM). An appeal court had reduced his sentence to 18 months last 14 July and ordered his release for time served, as he had been in detention since December 2011. Amnesty International Canada had carried out a mission to assess his conditions in detention and reported allegations of torture and that his “confession”, on which his conviction was reportedly based, had been obtained through torture.
NGO Statement 1 NGO Statement 2 Press Article
Egypt: Coup d’Etat, unlawful killings and more than a thousand deaths amid “anti-terrorism” calls
On 3 July, the Egyptian army ousted President Mohamed Morsi and suspended the Constitution. The President, a leader of the Muslim Brotherhood, was replaced by the Constitutional Court Chief Justice Adly Mansour, who was sworn in on 4 July. The coup d’Etat has been followed by several public manifestations both by supporters of deposed President Morsi and by supporters of the military, characterized by the widespread use of excessive, including lethal, force by the army to repress them and by acts of violence by some of the protesters. On 23 August, Amnesty International had estimated that at least 1,083 people had been killed in the incidents. On 26 July, a demonstration in Tahrir square was held after a call of the army chief Abdel Fattah El-Sisi, who had deposed Morsi, to give the military a “mandate” to crackdown on “violence and terrorism”. On 14 August, Interim President Mansour declared a one-month state of emergency. The United Nations and several international organizations have called on the authorities to stop the bloodshed and the excessive use of lethal force on the protesters.
HCHR Statement UN SRs Statement NGO Statement 1 NGO Statement 2 NGO Statement 3 NGO Statement 4 Press Article 1 Press Article 2 Press Article 3
Bahrain: Terrorism legislation stiffened ahead of opposition protest
On 31 August, the government issued two royal decrees amending the Law on Protection of Society against Acts of Terror and the Charity Fundraising Regulation in view of a protest organized by the opposition on 14 August. The decrees increase punishment for terrorism offences, which are vaguely defined in the anti-terrorism legislation and may include legitimate opposition activities; extend the stripping of Bahraini citizenship to “perpetrators of dangerous terrorist crimes”; and remove the maximum penalty of five years for “inciting” terrorism. On 6 August, two further emergency decrees were issued amending the 1973 Law on Public Gatherings and Demonstrations, and effectively banning demonstrations in the capital Manama, and the 1976 Juvenile Law. According to Amnesty International, this last amendment “now stipulates that, if anyone under 16 years of age takes part in a demonstration, public gathering or sit-in, his or her parents would be warned in writing by the Ministry of Interior. If six months after the warning the juvenile was found in a new demonstration, his or her father could face jail, a fine or both”. Amnesty International, Human Rights Watch and the Bahrain Center for Human Rights called for the withdrawal of these decrees which they say contravene human rights law.
NGO Statement 1 NGO Statement 2 NGO Statement 3 NGO Statement 4 Press Article
Iraq: Another 17 people executed after “terrorism” convictions; 70 executed so far this year
On 19 August, the Ministry of Justice announced in a press release the execution of 17 people – 14 Iraqi men, two Iraqi women and an Egyptian man. Sixteen of the persons executed had been convicted of having committed an act of terrorism under Article 4 of Iraq’s Anti-Terrorism Law (Law no. 15 of 2005) and sentenced to the death penalty. One of the 14 Iraqi men had been convicted of an unspecified criminal offence. According to press reports, there have already been 70 executions in Iraq since the beginning of 2013.
MoJ Statement (A) Anti-Terrorism Law (E) Press Article (E)
AMERICAS
USA: Further revelations on US spying and surveillance programme
During the month of August, several media reports contained further disclosures as to the reach of the surveillance programmes of the US National Security Agency (NSA). On 15 August, the Washington Post disclosed a 2012 NSA Internal Audit and other documents, provided by whistleblower and former NSA agent Edward Snowden, which revealed that the NSA “has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008”. One of the revelations was that in one instance the US surveillance of phone conversations had been directed towards Washington instead of its the supposed target of Egypt. On 20 August, the Wall Street Journal revealed a NSA filtering system of communications either originating or ending abroad, carried out with telephone companies, which “has the capacity to reach roughly 75% of all U.S. Internet traffic”. On 20 August, a 2011 classified opinion of the Foreign Intelligence Surveillance Court was disclosed, within a Freedom of Information Act case, which revealed that the “National Security Agency illegally collected tens of thousands of emails between Americans in violation of the fourth amendment to the US constitution”. Finally, on 25 August, the German newspaper Der Spiegel revealed that documents provided by Edward Snowden indicated that the NSA had been spying on UN headquarters in New York and on the EU missions in New York and Washington D.C.
HCHR Statement WP Article WSJ Article Spiegel Article FISA Ruling NGO Statement Press Article
USA: President Obama announces reforms but maintains surveillance programmes
On 9 August, President Barack Obama announced a four-point plan in response to concerns about National Security Surveillance programs. The US President announced that he would “work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records” in order to “take steps to put in place greater oversight, greater transparency and constraints”. He indicated that, with regard to the Foreign Intelligence Surveillance Court, the Government “can take steps to make sure civil liberties concerns have an independent voice, in appropriate cases, by ensuring that the government’s position is challenged by an adversary.” Further, he said that he had “directed the intelligence community to make public as much information about these programs as possible” and disclosed two policy documents related to surveillance. Finally, President Obama announced the creation of a “high level group of outside experts to review our entire intelligence and communications technologies” which should prepare a report in the next 60 days. The speech came after the defeat in the House of Representatives by a 217-205 vote, on 24 July, of an amendment to the Defence spending bill aimed at stopping the NSA surveillance programmes.
Speech Released Document 1 Released Document 2 Press Article 1
Press Article 2
USA: NSA spying and surveillance programmes under challenge in US courts
During the month of July, several lawsuits were filed challenging the National Security Agency’s (NSA) surveillance programmes. On 8 July, the Electronic Privacy Information Center, as a client of the phone company Verizon, introduced an emergency petition before the US Supreme Court arguing that the Foreign Intelligence Surveillance Court (FISC) exceeded its authority when it “ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation”, as disclosed by whistleblower Edward Snowden. This action followed the challenge to the programme before the US District Court of the Southern District of New York brought by the American Civil Liberties Union and the Center for Constitutional Rights on 11 June. On 16 June, the Electronic Frontier Foundation filed a lawsuit before the US District Court for the Northern District of California seeking an injunction against the NSA, the Department of Justice, and the Federal Bureau of Investigation (FBI) for having allegedly violated the rights of a coalition of 19 organizations, through their programme of illegal surveillance and collection of communications.
EPIC Complaint ACLU-CCR Complaint EFF Complaint NGO Statement
USA: Federal courts have no competence to stop Guantánamo force-feedings
On 8 and 16 July, Judges Gladys Kessler and Rosemary M. Collyer of the US District Court for the District of Columbia respectively dismissed two petitions by Guantánamo detainees Jihad Dhiab, Shaker Aamer, Nabil Hadjarab and Ahmed Belbacha asking that the Court order an end to the practice of force-feeding Guantánamo detainees, who have been engaged in a prolonged hunger strike. The two judges both ruled that the District Court lacked jurisdiction as that was foreclosed by the Military Commission Act, which excluded it for any question of treatment, detention and conditions of confinement. However, Judge Kessler characterized the force feedings as a “painful, humiliating and degrading process” and suggested that President Obama should intervene to end the practice.
Ruling (Kessler) Ruling (Collyer) Press Article
USA: District Court stops Guantánamo “groin” searches but Appeals Court lets them continue pending appeal
On 11 July, Chief Judge Royce C. Lamberth of the US District Court for the District of Columbia ordered the cessation of the practice of searching Guantánamo detainees in their “groin area” before and after meetings with their lawyers, introduced on 3 May 2013. The Court held that these practices “actively discourage petitioners from taking phone calls or meeting with counsel” and are excessive. It held that the Court had jurisdiction as these practices, effectively impeding access to a lawyer, affected the detainees’ right to habeas corpus and the Court “is duty bound to protect the writ of habeas corpus as a fundamental prerequisite of liberty by ensuring that all those who seek it have meaningful and effective access to the courts. For Guantanamo detainees, it is undisputed that access to the courts means nothing without access to counsel”. However, on 17 July, the Court of Appeals for the Circuit of the District of Columbia granted a Government’s motion to temporarily delay the effect of the judgment pending appeal.
Ruling Press Article 1 Press Article 2 Press Article 3
USA: Legal challenge to “indefinite detention” law fails for lack of standing
On 17 July, the US Court of Appeals for the Second Circuit vacated a permanent injunction of the lower District Court against section 1021(b)(2) of the National Defense Authorization Act 2012 which effectively grants the US President the power “to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces”. The Court of Appeals ruled that two of the plaintiffs lacked standing because they were US citizens and the statute clearly does not apply to US citizens. It held equally that the other foreign plaintiffs lacked standing as they “have not shown a sufficient threat that the government will detain them under Section 1021”.
USA: Bradley Manning sentenced to 35 years on multiple charges
On 21 August, a US court martial, presided over by military judge, Col. Denise Lind, sentenced Wikileaks whistleblower, Pfc. Bradely Manning, to 35 years of imprisonment, following his conviction on 30 July of 20 out of 22 counts of leaking thousands of government classified documents to the organization Wikileaks, including revelations of apparent war crimes in Iraq. The judge had acquitted him of the offence of “aiding the enemy”, which carries the death penalty or life imprisonment, but convicted him for other charges under the Espionage Act. Human Rights Watch noted that, under this law, “the government did not have to prove that the information actually harmed national security, nor could Manning defend himself by showing the information was of strong public importance. In this way, the antiquated law fails to protect both the public’s right to information and the speaker’s right to disclose matters of pressing public interest”. Amnesty International has called US President Obama to commute the sentence of Bradley Manning to time already served and to allow his immediate release. In a statement, read after the sentencing by his lawyer, Bradley Manning said: “If you deny my request for a pardon, I will serve my time knowing that sometimes you have to pay a heavy price to live in a free society. I will gladly pay that price if it means we could have country that is truly conceived in liberty and dedicated to the proposition that all women and men asre created equal”.
Manning Statement NGO Statement 1 NGO Statement 2 NGO Statement 3 NGO Statement 4 Press Article
USA/Italy: CIA rendition agent, convicted in Italy, reveals new elements of Abu Omar kidnapping
On 27 July, the news agency McClatchy released information from a series of interviews with Sabrina de Sousa, a former CIA agent who had been convicted by Italian courts for her involvement in the kidnapping and rendition of Osama Mustapha Hassan Nasr, also known as Abu Omar. In her interviews, she asserts that she had not been involved in the rendition, but had only helped with translations between the CIA and Italian agents. She also reveals that the rendition of Abu Omar was planned by Rome CIA station’s chief, Jeff Castelli, who was also convicted by the Italian courts. Furthermore, she affirms that a rendition like that of Abu Omar had to be approved at the highest levels, up to the US President, and that the Italian secret military service (SISMI) chief at the time, Nicolò Pollari, initially refused to allow the operation, but later ceded to the pressures although he refused to have anything in writing.
Video Interview Press Article (E) Press Article (Italian)
Chile: UN Special Rapporteur finds anti-terrorism law “disproportionately and unfairly” applied to Mapuche people
On 30 July, the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, Ben Emmerson, concluded a mission to Chile, which began on 17 July. The Special Rapporteur issued preliminary findings and urged Chile to stop using the Anti-Terrorism Law no. 18.314 in relation to the land protests of the Mapuche people. While recalling that there should not be impunity for crimes committed during violent protests and that victims of such crimes must be protected, the Special Rapporteur declared that “the anti-terrorism legislation has been disproportionately and unfairly applied against Mapuche defendants, and has been implemented without a coherent policy for distinguishing those cases that meet the threshold test for an act of terrorism and those that do not.” Ben Emmerson stressed that the anti-terrorism law had been so far applied in a discriminatory manner, in a “confused and arbitrary fashion” and has “undermined the right to a fair trial”. The Minister of Interior, Andrés Chadwick, rejected the UN Special Rapporteur’s findings stating that he was “missing information”.
SR Statement UN Statement Press Article 1 Press Article 2
Panama: Authorities let CIA rendition officer, convicted in Italy, go to the US and avoid extradition to Italy
On 19 July, the Panamanian authorities released from detention Robert Seldon Lady, a CIA agent who had been convicted and sentenced to up to nine years of imprisonment in Italy for having been complicit in the kidnapping and rendition of Osama Mustapha Hassan Nasr, also known as Abu Omar. The authorities allowed him to board a plane for the United States. On 17 July, Robert Seldon Lady had been detained in Panama for having entered the country irregularly. The Italian Minister of Justice, Annamaria Cancellieri had signed a request to detain Seldon Lady pending extradition.
NGO Statement (E) Press Article (E) Press Article (Italian)
Paraguay: Senate approves emergency army deployment power against “terrorist” groups
On 22 August, the Senate approved amendments to Law no. 1337/99 on National Defence and Internal Security. The amendments give the President the power to call a state of emergency and deploy army and police under his direction in parts of the territory declared under emergency in cases of “situations of extreme gravity in which the system of internal security provided for by this law is manifestly insufficient” and in cases of terrorism, including “terrorism, membership of a terrorist organization and financing of terrorism”. The law was reportedly approved to ensure a more active and sustained army presence in the regions affected by the Paraguayans People’s Army (EPP), an armed group considered a terrorist organization in Paraguay.
Senate Statement (S) Press Article (S)
ASIA – PACIFIC
India: ICJ and HRW urge government to stop execution of “terrorism” convict
On 21-22 August, the International Commission of Jurists and Human Rights Watch, in separate statements, called on the Indian Government not to carry out the execution of Devinderpal Singh Bhullar, who had been convicted in 2001 under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and sentenced to death for his alleged involvement in the 1993 All Indian Youth Congress bomb attacks in New Delhi that killed nine people. His convictions and sentencing had been confirmed by the Supreme Court last 14 August and became final. The ICJ and Human Rights Watch called on the Government to halt the execution amid allegations that his conviction was obtained through violations of his right to a fair trial and based on a “confession” later retracted when Devinderpal Singh Bhullar claimed it had been obtained under torture. The ICJ and Human Rights Watch called on the Indian Government to rejoin the 150 countries that have abolished in law or in practice the death penalty by reinstating a moratorium on executions.
NGO Statement 1 NGO Statement 2
Pakistan: Death penalty moratorium not renewed; imminence of “terrorism” convicts’ executions
On 30 August, a presidential order imposing a moratorium on the death penalty, issued in 2008, was allowed to expire by the Prime Minister Nawaz Sharif, effectively reintroducing the use of the death penalty after a five-year near moratorium. Since that time, only one execution has been carried out, that of Muhammad Hussain in November 2012 following a court martial. International organizations, including the ICJ, Human Rights Watch and Amnesty International, denounced this decision and called for a reinstatement of the moratorium. The ICJ and Human Rights Watch, in a letter to the highest authorities of Pakistan, made reference to the fact that “an anti-terrorism court in Sindh province has issued ‘black warrants’ for the execution of two members of the banned sectarian and militant group Lashkar-e-Jhangvi, Attaullah alias Qasim and Muhammad Azam alias Sharif, who were convicted by an anti-terrorism court in July 2004 for the killing of a Shia doctor. They are scheduled to be executed between 20 and 22 August 2013”. On 18 August, Prime Minister Sharif announced a three-month stay of the execution pending discussion with President Asif Ali Zardari, who opposes the death penalty but will step down on 8 September, at the end of his term. The Anti Death Penalty Asia Network called for a full re-establishment of the death penalty moratorium. At present, more than 7,000 people are on death row in Pakistan.
ICJ-HRW Letter NGO Statement 1 NGO Statement 2
Pakistan: 514 persons subject to enforced disappearance are in “terrorism” detention, admits Government
On 9 July, the Supreme Court was informed by the Deputy Attorney General Dil Mohammad Alizai that 514 people, considered until then to be “missing persons”, were in reality under detention in five detention centres set up in Khyber Pakhtunkhwa under the Action in Aid of Civil Power Regulations 2011, which allow the government to confine persons accused of terrorism. Press reports quote a list of seven detention facilities provided by the Deputy Attorney General in “sub-jails Palthom and Jail Fizaghat in Swat, sub-jail Malakand, district jail Timergara (non-functional), Frontier Corps forts in Chitral, Drosh, Mirkhai and Timergara (non-functional), district jail Lakki Marwat and district jail Kohat”. The ICJ and Human Rights Watch reported that “Pakistan’s participation in the United States-led “war on terror” since 2001 has resulted in hundreds and perhaps thousands of individuals being “disappeared.””
ICJ-HRW Statement ICJ Opinion Piece Press Article
Indonesia: UN Committee concerned at excessive length of police custody
On 21 August, the UN Human Rights Committee issued its concluding observations on the compliance by Indonesia with its obligations under the International Covenant on Civil and Political Rights. Among its findings, the Committee expressed concern at the excessive length of police custody before being brought before a judge, which is of twenty days for ordinary offences and can be extended up to sixty days “and even longer” for persons suspected of terrorism. The Committee also noted that a draft reform of the Criminal Procedure Code only contemplates the reduction of this period from twenty days to five. The UN experts have therefore encourage Indonesia to “ensure that the Criminal Procedure Code be revised in order to provide that anyone arrested or detained on a criminal charge is brought before a judge within 48 hours.”
Concluding Observations
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: NSA leaks journalist’s partner detained for nine hours under Terrorism Act
On 18 August, David Miranda, a Brazilian citizen and partner of The Guardian journalist Glenn Greenwald, author of many articles revealing the mass surveillance programmes of the NSA based on documents leaked by whistleblower Edward Snowden, was arrested at Heathrow Airport. He was detained and interrogated for nine hours under Schedule 7 of the Terrorism Act 2000, before being left to board a plane for Brazil. David Miranda declared that the questioning did not relate to terrorism but only to the leaks of US and UK intelligence information. His laptop and electronic equipment had been confiscated. International and national organizations denounced the incident as a blatant misuse of anti-terrorism legislation. The Secretary General of the Council of Europe demanded an explanation from the UK for what it said could be a violation of the right to freedom of expression under Article 10 ECHR, and the UK Independent Reviewer of Terrorism Legislation, David Anderson QC, defined such use of the terrorism legislation as “unusual”. The High Court of Justice, on 23 August temporarily refused an injunction requested by David Miranda to stop a search in its seized material, allowed the UK authorities to continue examining the content of the of his confiscated electronic devices, allowing the authorities until 30 August to search the sole purpose of an ongoing national security investigation. On 30 August, David Miranda agreed to let the injunction stand. On 19 August, The Guardian editor-in-chief, Alan Rusbridger, revealed that the UK secret services had required the newspaper to allow the destruction of the hard drives containing Edward Snowden’s documents, on threat of legal action to block the publication of the newspaper. Copies of the documents, however, exist in other countries, Alan Rusbridger said.
HC Ruling Lawyers Statement NGO Statement 1 NGO Statement 2 NGO Statement 3 Press Article 1 Press Article 2 Press Article 3 Press Article 4
UK: Parliamentary Committee begins inquiry into UK surveillance laws
On 18 July, the Parliamentary Intelligence and Security Committee, which oversees the activities of the UK secret services, announced that it would begin a wide-ranging inquiry into UK legislation allowing for surveillance of communications and compliance with the Human Rights Act 1998. The announcement came in a statement in which the Committee noted that the Government Communications Headquarters (GCHQ) had acted in accordance with the Intelligence Services Act 1994 and Regulation of Investigatory Powers Act 2000 when using information obtained through the NSA PRISM programme. On 23 August, the newspaper The Independent revealed, based on documents provided by whistleblower Edward Snowden, that the UK runs “a secret internet-monitoring station in the Middle East to intercept and process vast quantities of emails, telephone calls and web traffic on behalf of Western intelligence agencies.”
Committee Statement Press Article 1 Press Article 2
UK: Government tables implementing rules of closed material proceedings in civil cases
On 27 June, the UK Government tabled before Parliament the Civil Procedure (Amendment no. 5) Rules 2013 in a bid to adapt the rules of civil procedure to the recently approved Justice and Security Act which introduces closed material procedures in civil damages cases. On 5 July, the UK NGO JUSTICE produced a briefing for Members of Parliament highlighting that “it is likely that these measures will compound the inadequacy of the Special Advocate system and the inherent unfairness of these extraordinary procedures for the party excluded from their case.” JUSTICE also considered that these rules appear to confirm that the true function of the introduction of closed material procedures by the Justice and Security Act “will be, in practice, to deter litigation against the Government in national security cases or to create a significant litigation advantage for Ministers in cases that proceed.”
UK: ETA suspect does not risk flagrant denial of fair trial in Spain, rules High Court
On 26 July, the Queen’s Bench of the High Court of Justice dismissed a challenge brought by Inaki Lerin Shanchez, a Basque national, against his extradition to Spain under the European Arrest Warrant, where he is wanted to answer charges of membership of an armed organization, namely Euskadi Ta Askatasuna (ETA), and possession of explosives. Inaki Lerin Sanchez claimed that his extradition to Spain would have been in breach of Article 6 of the European Convention on Human Rights, as he would be at risk of flagrant denial of a fair trial there. The High Court discounted this possibility, holding that there is no evidence that Spanish courts would not be diligent in ensuring that statements produced at trial, made by people detained incommunicado, were not the products of torture or ill-treatment in breach of Article 6 ECHR.
Ruling
UK: Investigations into Northern Ireland extrajudicial killings excessively long, rules European Court
On 16 July, the European Court of Human Rights ruled that the investigations into the deaths of Martin McCaughey, Desmond Grew and John Hemsworth had been subject to excessive investigative delays and that the UK had thereby breached the procedural aspect of their right to life. Martin McCaughey and Desmond Grew were shot on 9 October 1990 by soldiers from a specialist unit of the British Army and John Hemsworth died from a cerebral infarction in January 1998, after having sustained head injuries in assault by police officers of the Royal Ulster Constabulary in Belfast in July 1997. The Court could not, however, rule on the complaints of substantive violation of the victims’ right to life, as the investigations are still ongoing. The Court ruled, under Article 46 ECHR, that the UK authorities must take “all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.”
Judgment (McCaughey et al) Judgment (Hemsworth)
Germany: Germany knew of US mass surveillance and spying programme, reveals Der Spiegel
On 22 July, the newspaper Der Spiegel revealed that the cooperation between US and German secret services had increased in recent years and that the Government could not have been unaware of the NSA mass surveillance programmes, as previously declared by German Chancellor Angela Merkel. Based on documents provided by whistleblower Edward Snowden, Der Spiegel revealed that the US provided at least one of the German’s secret services (the Federal Office for the Protection of the Constitution (BfV)) “with one of their most productive spying tools, a system called “XKeyscore.” It’s the same surveillance program that the NSA uses to capture a large share of the up to 500 million data sets from Germany, to which it has access each month” and trained German services on the use of surveillance tools. The German Interior Minister, Hans-Peter Friedrich, who asserted at the Bundestag the existence of a “super basic right of security”, rejected these allegations.
Press Article 1 (E) Press Article 2 (E) Press Article 3 (German)
France: Human rights NGOs demand criminal investigations for NSA surveillance programme
On 15 July, the International Federation for Human Rights (FIDH) and the League for Human Rights (LDH) filed a complaint against unknown persons before the Public Prosecutor of the Tribunal de Grande Instance of Paris, asking for an investigation into the NSA mass surveillance programme PRISM, revealed by the leaks of whistleblower Edward Snowden. The complaint is based on articles 323-1, 226-18, 226-1 and 226-2 of the French Criminal Code, which reportedly criminalize “fraudulent access to an automated data processing system, collection of personal data by fraudulent means, willful violation of the intimacy of the private life and the use and conservation of recordings and documents obtained through such means.”
Complaint
France: French Government has mass surveillance programme too, reveals Le Monde
On 4 July, the newspaper Le Monde revealed, amid the leaks of the United States NSA mass surveillance scandal, that France also runs a mass Internet surveillance programme. The newspaper reported that “the General Directorate of External Security (the DGSE, or special services) systematically collects the electromagnetic signals emitted by computers and telephones in France, and the flow of signals between France and countries abroad: the entirety of our communications are being spied on. All of our email messages, SMS messages, itemised phone bills and connections to FaceBook and Twitter are then stored for years”. The database is reportedly used by six other French intelligence services, including the Central Directorate of Internal Intelligence, the customs service and the Tracfin anti-money-laundering service. Le Monde stressed that the programme’s work “takes place discreetly, on the margins of legality and beyond any serious control. Politicians are perfectly aware of it, but secrecy is the rule.”
Press Article 1 (E) Press Article 2 (F) Press Article 3 (E)
Ireland: High Court refuses provisional arrest warrant for Edward Snowden
On 6 July, the High Court refused an application for a provisional arrest warrant under the Extradition Act 1965 formulated by the Attorney General on behalf of the United States against Edward Snowden, the former NSA employee and whistleblower who revealed the NSA mass surveillance programmes. The High Court ruled that the request for an arrest warrant did not state precisely whether the contested offences occurred within or outside of the United States. This information was necessary for the issuance of the warrant, as the High Court had to verify whether any corresponding Irish offence could be applied to extraterritorial activities. The judgment reports that Edward Snowden has been charged before the US District Court for the Eastern District of Virginia with violations of 18 USC s. 793(d) (Unauthorized Disclosure of National Defence Information); 18 USC s. 798(a)(3) (Unauthorized Disclosure of Classified Communication Intelligence) and 18 USC s. 641 (Theft of Government Property).
Ruling
The Netherlands: “Terrorism” suspect would risk ill-treatment if extradited to the US, rules Court of Appeal
On 23 July, The Hague Court of Appeal refused the request of extradition to the United States of Sabir K., holding that there are substantial grounds to believe that he may be at risk of treatment contrary to Article 3 of the European Convention on Human Rights if transferred there. The Court had previously taken the same position based on the allegations that Sabir K., arrested in Pakistan, had been subject to torture by the ISI (Pakistan’s secret services) with complicity of the United States. The Court had mandated the Government to investigate whether these allegations were true, in order to confirm whether there would be a risk of ill-treatment following extradition to the United States. The Netherlands Government declined to conduct such investigation and the Court therefore affirmed that Sabir K could not be subject to extradition to the United States.
Judgment (Dutch) Court Statement (Dutch) Press Article (E)
Turkey: Investigations into ill-treatment in “terrorism” arrests insufficient, rules European Court
On 9 July, the European Court of Human Rights ruled that Turkish authorities had violated its obligation under Article 3 of the European Convention on Human Rights to conduct investigations into allegations of inhuman or degrading treatment brought by two Turkish women, Gülçin (Yeşilmen) Bozdemir and Maşallah Yeşilmen. The two applicants contended that the Turkish anti-terrorism police arrested them in their respective homes on the night of 27 November 1997 while looking for Ş.Y., allegedly a member of the PKK (the Kurdistan Workers’ Party), and their brother and husband respectively. They maintained that they were stripped naked and beaten, as a result of which Gülçin Bozdemir, who was pregnant at the time, lost her baby, and that Maşallah Yeşilmen was threatened with rape. The Court held that, due to the lack of investigation and the failure of the applicants to submit sufficient evidence, it could not rule that Turkish authorities had subjected them to inhuman or degrading treatment or arbitrary detention.
Judgment
Turkey: Investigations into PKK supporter killing ineffective, holds European Court
On 16 July, the European Court of Human Rights ruled that the investigations into the alleged killing of Fevzi Abik by police officers were insufficient and that Turkey had breached its procedural obligations in respect of the right to life under Article 2 of the European Convention on Human Rights. Fevzi Abik was shot during a police operation after having been threatened for distributing leaflets supporting the PKK (the Kurdistan Workers’ Party), considered by Turkey to be a terrorist organization. He died from his wounds four days later on 16 August 2006 at Adana hospital at the age of 16. The Court however could not find a violation of the substantial tenet of the right to life due to the insufficiency of the investigations.
Judgment (F)
Turkey: Anti-terrorism law application breached journalists’ freedom of expression, rules European Court
On 16 July, the European Court of Human Rights ruled that Turkey had violated the right to freedom of expression under Article 10 of the European Convention on Human Rights of Ahmet Sami Belek and İsmail Muzaffer Özkurt, owner and director of the newspaper Günlük Evrensel (Universel). The applicants had twice been convicted and sentenced to pay fines by Turkish courts under Law no. 3713 on fighting terrorism for having published, in May 2004, statements made by the chairman of a branch of the PKK and, in March 2004, statements made by prisoners explaining why they had embarked on a hunger strike. The Court held that the writings made no call for violence, armed resistance, insurgency or hate speech and that therefore these convictions were not “necessary in a democratic society” in breach of Article 10 ECHR.
Judgment (F)
Turkey: Unregulated use of tear-gas grenades against demonstration was inhuman and degrading, rules European Court
On 16 July, the European Court of Human Rights ruled that the Turkish authorities had violated the prohibition of inhuman and degrading treatment under Article 3 of the European Convention on Human Rights in respect of Abdullah Yasa, who had been injured by a tear-gas grenade fired by the police during the dispersal of a pro-PKK demonstration. The Court found that the Turkish rules at the time did not regulate the use of tear-gas grenades which could have lethal effects if shot directly at a person, as appears to have been the case of then 13-year-old Abdullah Yasa, a passer-by at the location of the demonstration. The Court therefore held that the use of force against the applicant was inappropriate. Abdullah Yada had filed a complaint with the police after the incident, but investigations were not undertaken. He was, however, later charged for “membership of a terrorist organization, propaganda in support of that organization, and resisting the police”, but acquitted because videos of the demonstration failed to show that he took part in them.
Judgment (F)
Russian Federation: European Court finds violations of right to respect for the home in security forces’ counter-terrorism operation
On 18 July, the European Court of Human Rights ruled that Russian authorities had breached the right to respect for the home under Article 8 of the European Convention on Human Rights of Lidiya Musayevna Taziyeva, Askhab Musayevich Taziyev, Pyatimat Musayevna Malsagova, Zareta Musayevna Taziyeva, Aslan Musayevich Taziyev, Makka Umarovna Taziyeva, Milana Aslanovna Taziyeva, Ayshat Aslanovna Taziyeva and Rabiya Aslanovna Taziyeva, members of a family living in the village of Nasyr-Kort, Ingushetia. The Court held that the search conducted in their home on 27 December 2005 by the Federal Security Service (FSB) was not in accordance with the law. The Suppression of Terrorism Act, on which it was grounded, “while vesting wide powers in State agents in counter-terrorist operations, did not define with sufficient clarity the scope of those powers and the manner of their exercise, so as to afford an individual adequate protection against arbitrariness”. The Court dismissed the complaints of violations of the prohibition of inhuman and degrading treatment and of the right to property.
Judgment
Russian Federation: European Court judges find the State responsibility in several Chechen enforced disappearances cases
On 4 July and 1 August, the European Court of Human Rights ruled on several cases of enforced disappearance in the Chechen Republic. In two cases, the Court held that Russian authorities were responsible for the enforced disappearance, during counter-terrorism operations, of Gelani Kaykharov, Suleyman Surguyev, Adam Suleymanov, Mirza Elmurzayev, Markha Gakayeva, Raisa Gakayeva, Zavalu Tazurkayev and Shaaman Vagapov and Beslan Baysultanov. The Court determined that these people must be presumed dead, and that the Russian Federation had therefore violated their right to life and to liberty, under Articles 2 and 5 of the European Convention on Human Rights. The Court had also ruled that Russian authorities had conducted inadequate investigations into their disappearance in breach of Article 2 ECHR and had subjected their family members to degrading treatment due to their agony at the enforced disappearance of their relatives, in breach of Article 3 ECHR. In the third case of the alleged enforced disappearance of Ramzan Saidov, the Court did not find official responsibility, due to conflict between witness statements and lack of investigation. The Court did however find a breach by the Russian Federation of its procedural obligations to investigate the case under Article 2 ECHR.
Judgment 1 Judgment 2 Judgment 3
Tajikistan: UN Committee concerned at renditions to Tajikistan
On 22 August, the UN Human Rights Committee published its concluding observations on the compliance by Tajikistan with its obligations under the International Covenant on Civil and Political Rights. The Committee expressed concern at “reports concerning the abduction and illegal return of Tajik citizens from neighbouring countries to the State party, apparently followed by incommunicado detention and other ill-treatment” and urged the authorities to “investigate all allegations of abductions and illegal returns of Tajik citizens, and avoid any involvement in such renditions”. The Committee also expressed concern at “allegations of torture and ill-treatment of persons suspected of belonging to banned Islamic movements”, inadequate investigations into torture or ill-treatment allegations, absence of an independent mechanism to examine torture complaints, routine use of coerced “confessions” as evidence in court and rarity of prosecutions and compensation for acts of torture.
Concluding Observations
Commonwealth of Independent States: Report unveils systemic system of renditions among CIS countries
On 3 July, Amnesty International published the report Return to torture: Extradition, forcible returns and removals to Central Asia, documenting the widespread practice of abduction, enforced disappearance, unlawful transfer and torture of individuals wanted in Central Asian countries on alleged charges of “terrorism” or “extremism” and transferred from the Russian Federation or Ukraine without respect for legal guarantees and of the obligation of non-refoulement, under Article 3 of the European Convention on Human Rights. Amnesty International defined these situations as amounting to a “region wide renditions programme” and recalled that these violations of human rights “have been exposed by countless European Court of Human Rights rulings and the findings of UN mechanisms.”
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Drones use must comply with international law, says UN Secretary General
On 13 August, the UN Secretary General Ban Ki Moon, in a speech at the inauguration of the Centre for International Peace and Stability in Islamabad, expressed the position of the United Nations that “the use of armed drones, like any other weapon, should be subject to long-standing rules of international law, including international humanitarian law” and that every “effort should be made to avoid mistakes and civilian casualties.” The Secretary General declared that the United Nations does make use of “these new tools – such as unmanned unarmed aerial vehicles – are for information purposes only. They are essentially flying cameras.”
EU: Court of Justice annuls freezing order, confirms standards to hear confidential information
On 18 July, the Court of Justice of the European Union affirmed the annulment of the insertion of Yassin Abdullah Kadi in the EU Terrorism List, in compliance with its obligations under UN Security Council resolution 1267/1999. The Court held that, although the “majority of the reasons relied on against Mr Kadi are sufficiently detailed and specific to allow effective exercise of the rights of the defence and judicial review of the lawfulness of the contested measure”, “since no information or evidence has been produced to substantiate the allegations, roundly refuted by Mr Kadi, of his being involved in activities linked to international terrorism, those allegations are not such as to justify the adoption, at European Union level, of restrictive measures against him.” In its judgment, the Court upheld the possibility that the EU courts may have to consider confidential information in terrorism listing cases. However, it affirmed the competence of EU courts to decide on the opportunity to consider confidential information in the proceedings and on the means of communication of at least part of such information, through summaries, to the aggrieved party.
EU: Parliament orders inquiry into US spying and surveillance programmes
On 4 July, the European Parliament passed a resolution strongly condemning the US spying and surveillance programmes and any equivalent programme in EU Member States. The Parliament instructed its Committee on Civil Liberties, Justice and Home Affairs (LIBE) to “conduct an in-depth inquiry into the matter in collaboration with national parliaments and the EU-US expert group set up by the Commission and to report back by the end of the year.” The inquiry will include fact-finding, mapping of responsibilities, damage and risk analysis, administrative and judicial redress and compensation schemes, policy recommendations and law-making, and recommendations on remedying of security breaches. The European Parliament found that the US programmes risked violation of the Vienna Convention on Diplomatic Relations (for spying on EU institutions) and “serious violation of the fundamental right of EU citizens and residents to privacy and data protection, as well as of the right to private and family life, the confidentiality of communications, the presumption of innocence, freedom of expression, freedom of information, and the freedom to conduct business”. The President of the European Parliament, Martin Schulz, wrote to the current President of the Council of the European Union asking that the Parliament be updated on the ongoing discussions of the EU-US Working Group on data protection and privacy and informed her of the establishment of the LIBE inquiry.
EP Resolution EP President Letter Press Article
EU: UK NGOs concerned at consideration of confidential information proceedings rules at EU court
In a reply to a letter of a group of UK NGOs and Bar Associations, the President of the Court of Justice of the European Union confirmed, on 18 June, that the Court of Justice is discussing the possibility of amending the rules of procedure of the General Court of the EU with a possible view to introduce procedures to allow for the use of confidential information, which the authors of the letter feared might resemble the UK closed material proceedings where one party may be refused access to some evidence for national security reasons. President Skouris stated that the Court would decide independently on the rules “in accordance with the primary law provisions on the protection of Fundamental Rights in the European Union”, but declined to hold consultations on the draft rules.
NGOs Letter 1 CJEU President Letter NGOs Letter 2
UN OCHA and Norwegian Refugee Council: Report unveils negative impact of counter-terrorism laws on humanitarian donations
On 22 July, the Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action revealed that “counter-terrorism measures have had and continue to have a negative impact on humanitarian action”. According to the study, “negative impacts reported, range from halts and decreases in funding to blocking of projects, suspension of programmes, planning and programme design not according to needs, as well as the slowing of project implementation”. The independent study, which proposes a number of recommendations, was authored by Kate Mackintosh and Patrick Duplat and commissioned by the UN Office for the Coordination of Humanitarian Affairs (OCHA) and the Norwegian Refugee Council (NRC) on behalf of the Inter-Agency Standing Committee (IASC).
Study Press Article 1 Press Article 2
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