Read the 95th 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.
Ebulletin-Aug15-Final (download the E-bulletin)
AFRICA & MIDDLE EAST
Chad: New law reintroduces death penalty for terrorism offences
Ethiopia: Six journalists and bloggers detained under anti-terrorism law released
Tunisia: Government restricts travel freedom of Tunisians under 35 years of age
Tunisia: President promulgates new anti-terrorism law
Tunisia: UN Working Group concludes mission on foreign fighters
Egypt: President approved new counter-terrorism law
Cameroon: Government prohibits full-face veils as anti-terrorism measure
Jordan: Journalists detained under anti-terrorism law for allegedly revealing details of terrorist operation
Iraq: UN Torture Committee concerned at serious human rights violations in countering terrorism
Iraq: 24 persons convicted of terrorism sentenced to the death penalty
AMERICAS
USA: Human rights organizations ask federal appeals court to stop NSA surveillance programme
USA: Inter-American Commission issues precautionary measures for Guantánamo detainee
USA: Federal court rejects habeas petition of Guantánamo detainees
USA: American Psychologist Association prohibits members’ collaboration in national security interrogations
Canada: Supreme Court holds stripping of flight license of Canadian of Pakistani origin not discriminatory
Canada: UN Human Rights Committee concerned at recent anti-terrorism law
ASIA & PACIFIC
People’s Republic of China: UN High Commissioner concerned at new national security law
People’s Republic of China: 20 foreign nationals arrested and deported for “watching material advocating terrorism”
India: Authorities carry out execution of convicted accomplice in terrorist attack
Pakistan: Supreme Court upholds use of military courts to try terrorism offences
Thailand: Authorities deport 109 Uighurs to China
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: High Court finds data retention law in breach of EU law
UK: Supreme Court upholds lawfulness of temporary airport detention under Terrorism Act
UK: UN Human Rights Committee raises concern with UK anti-terrorism legal framework
France: UN Committee criticizes counter-terrorism powers and surveillance laws
France: Constitutional Council overall upholds constitutionality of Intelligence Law
France: Deportation of Chechen to Russia held unlawful by the European Court of Human Rights
Germany: Reporters Without Borders sues intelligence service
Germany: Prosecutor investigating leaks website for treason fired
Spain: UN Human Rights Committee concerned at incommunicado detention of terrorist suspects
Spain: Investigative Judge drops investigation into Guantánamo human rights violations
Slovakia: Constitutional Court invalidates surveillance laws
Former Yugoslav Republic of Macedonia: UN Human Rights Committee concerned at mass surveillance
Uzbekistan: UN Human rights Committee addresses human rights violations in countering ‘terrorism’
Uzbekistan: Law adopted on citizen forfeiture for terrorist offences
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Human Rights Council adopts human rights and counterterrorism resolution
EU: Parliament establishes position in Passenger Name Record negotiations
EU: Commission Vice-President requested to investigate EU law compliance of six countries’ data retention laws
EU: Parliament adopts resolution on European Security Agenda
Council of Europe: Human Rights Commissioner presents report on oversight of national security services
E-BULLETIN no. 95
AFRICA & MIDDLE EAST
Chad: New law reintroduces death penalty for terrorism offences
On 30 July, the Parliament of Chad approved unanimously legislation reintroducing the death penalty for acts of terrorism, following recent attacks by Boko Haram in N‘djamena. The adopted legislation modifies the existing anti-terrorism law and provides for the death penalty rather than life imprisonment for most serious terrorism offences. In addition, sentences of “eight to twenty year prison” were turned into “life sentences”. The length of police custody under the anti-terrorism law has been extended to a maximum of thirty days, renewable twice. These new measures come just after Chad banned the wearing of full-face veil on 17 June, in reaction to two suicide bombers in its capital. On 29 August, ten people were executed after having been sentenced to the death penalty under the new anti-terrorism legislation. The Office of the UN High Commissioner for Human Rights expressed deep regret at the resumption of the death penalty in Chad.
OHCHR Statement Press Article 1 (E) Press Article 2 (F)
Ethiopia: Six journalists and bloggers detained under anti-terrorism law released
On 9 July, six persons that had been detained under trial under the Anti-Terrorism Proclamation 2009. The released persons are Mahlet Fantahun and Zelalem Kibret, two bloggers of the collective Zone 9, and journalists Reyot Alemu, Tesfalem Waldyes, Asmamaw Hailegiorgis and Edom Kasaye. On 10 July, the UN Special Rapporteur on freedom of opinion and expression, David Kaye, welcomed the release; expressed concern at “the use of national security concerns to curb freedom of expression and association”; and urged the Ethiopian authorities to revise their anti-terrorism legislation. Four other members of the bloggers’ collective Zone 9 remain in detention: Atnaf Berhane, Befekadu Hailu, Abel Wabella and Natnail Feleke.
UNSR Statement NGO Statement Press Article
Tunisia: Government restricts travel freedom of Tunisians under 35 years of age
On 10 July, Human Rights Watch reported that the Tunisian authorities had imposed travel restrictions on Tunisians under the age of 35, with a view to limiting their capacity to travel to certain countries. The declared aim of the restrictions was to prevent you persons from “joining extremist armed groups abroad.” Human Rights Watch reported that young travellers were asked by border police, on the instruction of the Ministry of Interior, to present the authorization by their father to travel abroad, and that such authorization had to be certified by the municipality. The restrictions were said to apply in particular to travel to Turkey, Morocco, Algeria or Libya and to have no ground in national law nor have been authorized by a judicial order. Human Rights Watch alleged that the restrictions are arbitrary, in breach of the freedom of movement under article 12 of the International Covenant on Civil and Political Rights and article 12 of the African Charter on Human and People’s Rights.
Tunisia: President promulgates new anti-terrorism law
On 7 August, President Beji Caid Essebsi promulgated the new Counter-Terrorism Law, after the approval by the National Assembly. The ICJ had previously called on the President not to ratify the legislation, because it contains definitions of many ‘terrorism’ offences that are overly broad and imprecise, with the potential to criminalize the peaceful exercise of fundamental freedoms, including the right to freedom of expression. The ICJ criticized article 68 of the Law, which provides immunity from criminal prosecution for security forces when using force in the course of their duties. Other provisions of the Law were said to adversely impact the right to a fair trial, the right to liberty, and the right to privacy. These include provisions allowing a person to be held in police custody for up to fifteen days without access to a lawyer or a judge.
Tunisia: UN Working Group concludes mission on foreign fighters
On 10 July, the UN Working Group on the use of mercenaries concluded its visit to Tunisia. The Working Group, that is conducting a global study on the issue of foreign fighters, said it had “received information that there are some 4,000 Tunisians in Syria, 1,000 – 1,500 in Libya, 200 in Iraq, 60 in Mali, and 50 in Yemen.” The Working Group also indicated “that, in responding to the threat, some state authorities have undertaken extensive surveillance, and other significant measures and procedures.” The UN experts urged “full application of national legislation and international human rights standards by the government.”
Preliminary Findings UN Statement 1 UN Statement 2
Egypt: President approved new counter-terrorism law
On 17 August, President Abdel Fatah el-Sisi approved the new Counter-Terrorism Law, tabled following the assassination of the Prosecutor-General Hisham Barakat on 29 June and attacks by armed groups in the Sinai two days later that left dozens of soldiers dead. The ICJ had alleged that the draft version of the law included ‘terrorism’ offences with broad definitions with the potential to criminalize the legitimate and peaceful exercise of rights, including the rights to freedom of expression, association and assembly. The law grants wide powers to investigative and law enforcement officials that the ICJ considers to present severe risks of arbitrary detention and extensive infringements of the right to privacy without adequate safeguards or judicial oversight. It also grants immunity from criminal prosecution for State officials, including potentially those who unlawfully use lethal force. Finally, it introduces new terrorism courts within the judicial system with expedited procedures, which fall short of international fair trial standards. Several human rights organization had called on the Egyptian President not to promulgate the law.
NGO Statement 1 NGO Statement 2 NGO Statement 3 Press Article
Cameroon: Government prohibits full-face veils as anti-terrorism measure
On 16 July, the Government prohibited, as a security measure, the wearing of full-face veils in the far North region, after a suicide bombing in the town of Fotokol, claimed by Boko Haram and carried out by two women wearing burkas, caused the death of at least fourteen people. The ban does not apply to the other regions of Cameroon. As further security measures, local authorities have banned Muslims from meeting in large group without permission. Officials reported that the measures would be maintained as long as necessary to prevent further attacks.
Press Article Jordan: Journalists detained under anti-terrorism law for allegedly revealing details of terrorist operation
On 9 July, Ghazi al-Marayat, a Jordanian journalist, was subject to a fifteen days pre-trial detention order by the State Security Court prosecutor on accusation of breaking a recent court ban on the coverage of a terrorist operation. The prosecutor charged him, under article 3b of the recent Anti-Terrorism Law, of “exposing the Kingdom and its citizens to danger and damaged the Kingdom’s standing with an unidentified foreign country.” He was released on bail after four days of pre-trial detention. In its press article, published on 6 July for the state-owned daily Al-Rai, Marayat cited a “well-informed source” saying that Jordanian security services had arrested an Iranian operative suspected of planning a terrorist attack. Human Rights Watch condemned this arrest as an attack to freedom of expression and freedom of the press.
NGO Statement 1 NGO Statement 2 Press Article
Iraq: UN Torture Committee concerned at serious human rights violations in countering terrorism
On 12 August, the UN Committee against Torture issued its concluding observations on Iraq’s compliance with its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Committee deplored the “severe human rights violations committed by the so-called Islamic State of Iraq and the Levant (ISIL) and associated armed groups, which may amount to war crimes, crimes against humanity and possibly genocide,” but found also deeply concerning reports of severe human rights violations by Iraqi security forces and militia groups, including acts of “torture and ill-treatment, enforced disappearances and extrajudicial executions of prisoners and civilians.” The Committee noted “information pointing at a consisting pattern whereby alleged terrorists … are arrested without any warrant, detained incommunicado or held in secret detention centres for extended periods of time, during which they are severely tortured in order to extract confessions.” The Committee also pointed to the “questionable judicial practices under the 2005 Anti-Terrorist Law and the Code of Criminal Procedure, such as arrests without warrants, protracted pre-trial detention, indefinite detention of suspects, and convictions based on the testimony of secret informants.”
Concluding ObservationsIraq: 24 persons convicted of terrorism sentenced to the death penalty
On 8 July, 24 persons, accused of being members of Islamic State of Iraq and the Levant (ISIL), were sentenced to death by a court in Baghdad, after having been found guilty of the killing of hundreds of Iraqi soldiers. Four other men were acquitted, for lack of evidence. The persons convicted had been found guilty of the charges of “membership in a terrorist group” and murder. They were accused of having taken part in the June 2014 massacre in Tikrit that reportedly led to the killing by the Islamic State of over 1700 Iraqi soldiers. All of the defendants pleaded not guilty, alleging that their “confessions” had been extracted under torture by Iraqi officers.
Press Article 1 Press Article 2
AMERICAS
USA: Human rights organizations ask federal appeals court to stop NSA surveillance programme
On 14 July, the American Civil Liberties Union and the New York Civil Liberties Union filed a lawsuit asking the US Court of Appeals for the Second Circuit for a preliminary injunction to “halt the National Security Agency’s bulk collection of Americans’ call records.” The organizations argued that the provisional re-authorization of the mass surveillance programme by the Foreign Intelligence Surveillance Court, in the transition period before the entry into force of the USA Freedom Act, was based on the same legal wording that this Court of Appeal had declared unconstitutional last May. They also contended that, the mass surveillance programme would constitute a breach of US citizens’ freedom of expression and of the prohibition of undue search and seizures, under the First and Fourth Amendments to the US Constitution.
USA: Inter-American Commission issues precautionary measures for Guantánamo detainee
On 7 July, the Inter-American Commission on Human Rights issued precautionary measures aimed at the protection of Guantánamo detainee Mustafa Adam Al-Hawsawi. The Commission considered that the information before it showed that he “faces a serious and urgent situation, as his life and personal integrity are presumably at risk due to the alleged conditions of detention.” The Court called on the US authorities to “adopt all the necessary measures to protect [his] life and personal integrity; … to guarantee that the detention conditions are adequate in accordance with applicable international standards; … to ensure access to medical care and treatment” and to report back on the application of these measures. Mustafa Adam Al-Hawsawi is a Saudi Arabian national detained in Guantánamo since 2006 “has allegedly been deprived of his liberty for 12 years” since his apprehension in Rawalpindi (Pakistan). Mustafa Adam Al-Hawsawi alleges that he has “suffered from threats and acts of violence against his life, health and personal integrity as a victim” of the CIA rendition, secret detention and interrogation programme.
Precautionary Measures USA: Federal court rejects habeas petition of Guantánamo detainees
On 30 July, the US District Court for the District of Columbia rejected a habeas corpus petition by Guantánamo detainee Mukhtar Yahia Naji Al Warafi, challenging the legality of his detention. The Court ruled that the fact that President Barack Obama issued statements declaring the end of the hostilities between the US and the Talibans in Afghanistan is insufficient evidence to withdraw the legal ground of his detention in Guantánamo. The Court held that “the President’s position, while relevant, is not the only evidence that matters to this issue.” It found that Congress had not authorized the US President to put an end to his war powers “by Presidential proclamation”. On 22 July, White House Press Secretary Josh Earnest reported in a press briefing that the US Government “is, in fact, in the final stages of drafting a plan to safely and responsibly close the prison at Guantanamo Bay and to present that plan to Congress.”
USA: American Psychologist Association prohibits members’ collaboration in national security interrogations
On 7 August, the American Psychological Association (APA), at its annual meeting in Toronto, adopted a new policy ordering psychologists not to “conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation.” The decision provides with an exception to this prohibition in case of “domestic law enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.” The decision, hailed by Physicians for Human Rights (PHR), comes after an independent report by former federal prosecutor David Hoffman and commissioned by the APA, revealed on 10 July that “the APA colluded with the U.S. Department of Defense, the CIA, and other government officials to support the use of torture.” PHR had called for a full investigation by the US Department of Justice into these allegations.
Report NGO Statement 1 NGO Statement 2
Canada: Supreme Court holds stripping of flight license of Canadian of Pakistani origin not discriminatory
On 23 July, the Supreme Court of Canada (SCC) dismissed the appeal of Javed Latif, a Canadian citizen of Pakistani origin, claiming that the refusal to grant a security clearance by the US authorities for a flight lessons license, that barred him from lessons also in Montréal was discriminatory. He claimed this refusal was in breach of sections 4, 10 and 12 of the Quebec Charter of human rights and freedoms, engaging his rights to dignity, honour and reputation, the prohibition of non-discrimination, and to have access, without discrimination, to “a juridical act concerning goods or services ordinarily offered to the public.” The Supreme Court ruled that insufficient evidence had been brought to “show that [his] ethnic or national origin had played any role in the U.S. authorities’ unfavourable reply to his security screening request. It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter.”
Judgment Canada: UN Human Rights Committee concerned at recent anti-terrorism law
On 20 July, the UN Human Rights Committee issued its concluding observations on Canada’s compliance with its obligations under the International Covenant on Civil and Political Rights. The Committee expressed concern at information received reporting that the newly approved anti-terrorism legislation, known as Bill C-51, would provide the Canadian Security Intelligence Service (CSIS) with “broad mandate and powers … to act domestically and abroad, thus potentially resulting in mass surveillance and targeting activities.” The Committee noted that the new law will create a “no-fly list programme without a clear procedure to inform the person concerned on its status, allowing a judicial review that may be conducted in secret, and to which the system of special advocates does apply.” The Committee expressed concern about the “lack of adequate and effective oversight mechanisms to review activities of security and intelligence agencies.” On 21 July, the Canadian Journalists for Freedom of Expression and the Canadian Civil Liberties Association announced that they would launch a judicial challenge as to the anti-terrorism law’s constitutionality.
Concluding Observations Press Article
ASIA – PACIFIC
People’s Republic of China: UN High Commissioner concerned at new national security law
On 7 July, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, expressed his concern at aspects of the National Security Law that was adopted by the National People’s Congress on 1 July. According to the High Commissioner’s statement, the new legislation “defines the meaning of national security extremely broadly: it is described as the condition in which the country’s government, sovereignty, unification, territorial integrity, well-being of its people, sustainable development of its economy and society and other major interests are relatively safe and not subject to internal and external threats.” The High Commissioner expressed concern at the legislation’s “extraordinarily broad scope coupled with the vagueness of its terminology and definitions” that “leaves the door wide open to further restrictions of the rights and freedoms of Chinese citizens, and to even tighter control of civil society by the Chinese authorities than there is already.”
People’s Republic of China: 20 foreign nationals arrested and deported for “watching material advocating terrorism”
Some twenty foreign nationals (nine from the UK, ten from South African and one from Indian national) were reportedly arrested and subsequently deported at an airport in Erdos, Inner Mongolia. A first information reported that they were accused of “organizing, leading and attending a terrorist organization.” It was later communicated that they were suspected of having watched material advocating “terrorism and religious extremism.” Reportedly, the nine UK citizens declared that the accusation is linked to them watching a documentary about Genghis Khan.
Press Article 1 Press Article 2
India: Authorities carry out execution of convicted accomplice in terrorist attack
On 30 July, Indian authorities carried out the execution by hanging of Yakub Memon, after a last minute request for a two weeks postponement was rejected. Yakub Memon had been convicted and sentenced to the death penalty for having provided logistical and financial support to the persons who did the March 1993 terrorist attacks against various targets in Mumbai, leaving 257 people dead and injured more than 700. Yakub Memon’s death penalty sentence was the only one, among eleven persons convicted, whose death sentence was upheld on appeal. In November 2012, India ended a moratorium on the death penalty moratorium and since then two people have been executed, Ajmal Kasab and Afzal Guru. They were both charged and convicted for their role in terrorist attacks. The executions were denounced by a number of organizations, including the ICJ.
NGO Statement 1 NGO Statement 2 Press Article
Pakistan: Supreme Court upholds use of military courts to try terrorism offences
On 7 August, the Pakistani Supreme Court held that the trial by military courts of individuals accused of committing terrorism related offences and belonging to “any terrorist group or organization using the name of religion or a sect”, including civilians, was within the constitutional framework of the country and met principles of criminal justice. The Court, with a nine judges majority, also ruled that individuals who claim to, or are known to belong to “any terrorist group or organization using the name of religion or a sect” constituted a valid classification allowing for differential treatment under the constitution. The ICJ stated that the decision upholding the trial of civilians in military courts for terrorism-related offences was incompatible with international standards, which require that those accused of any criminal offence are guaranteed a fair trial by an independent, impartial and competent tribunal.
NGO Statement Press Article 1 Press Article 2
Thailand: Authorities deport 109 Uighurs to China
On 9 July, Thai authorities deported 109 Chinese citizens of Uighur ethnicity to the People’s Republic of China. Another 65 Uighurs were said to remain in immigration detention in Thailand. The persons deported had been held in immigration detention since their arrival in March 2014. The Office of the United Nations High Commissioner for Refugees (UNHCR) the deportation as “a flagrant violation of international law.” Amnesty International and Human Rights Watch also condemned the deportation as a violation of the principle of non-refoulement under international human rights law and refugee law. Members of the Uighur ethnic group are often persecuted in China under accusation of extremism, separatism or terrorism. According to Human Rights Watch, the deportation took place after that the Thai Government “allowed approximately 170 ethnic Turkic women and children from these groups to go to Turkey,” which was condemned by the Chinese Government.
NGO Statement 1 NGO Statement 2 Press Article
EUROPE & COMMONWEALTH OF INDEPENDENT STATES
UK: High Court finds data retention law in breach of EU law
On 17 July, the High Court of Justice ruled that section 1 of the Data Retention and Investigatory Powers Act 2014, that allows for interception and storage of communications of persons suspected of ‘serious crimes’, was in breach of European Union law and had to be disapplied. The High Court, invoking a EU Court of Justice’s judgment that invalidated the EU Data Retention Directive, ruled that the 2014 Act “does not lay down clear and precise rules providing for access to and use of communications data retained pursuant to a retention notice to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating to such offences.” The Court further held that “access to data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.”
Judgment Order NGO Statement Press Article
UK: Supreme Court upholds lawfulness of temporary airport detention under Terrorism Act
On 22 July, the UK Supreme Court ruled that the airport detention and questioning of person, under schedule 7 of the Terrorism Act 2000, “for the purpose of determining” whether the detainee is concerned with the commission, preparation or instigation of terrorist acts was not in breach of the European Convention on Human Rights (ECHR). The Supreme Court found that such detention for up to six hours did not breach the right to liberty, under article 5 ECHR, of Sylvie Beghal, detained at East Midlands Airport while she returned from France, where she visited her husband who is in custody on terrorist offences. The Supreme Court also found that her separation from her two eldest children for that period of time breached her right to private and family life. In addition, the Court ruled that the provision which allowed for charging a person with “wilful failure to comply with the requirement to answer questions” did not breach her privilege against self-incrimination, under article 6 ECHR, reasoning that the “risk of prosecution is not a real and appreciable one.”
UK: UN Human Rights Committee raises concern with UK anti-terrorism legal framework
On 21 July, the Human Rights Committee issued its concluding observations on the compliance by the United Kingdom with its obligations under the International Covenant on Civil and Political Rights (ICCPR). The Committee expressed concern at the inadequacy of investigations into the UK alleged complicity in the US CIA rendition, secret detention and interrogation programme; at the maintenance of the “broadly formulated definition of terrorism in Section 1 of the Terrorism Act 2000 that can include politically-motivated action;” and at the new Counter-Terrorism and Security Act 2015 which it said “introduces wide ranging powers designed to promote public safety allegedly without putting in place sufficient safeguards.” The Committee highlighted in particular the maintenance of pre-charge detention for terrorist suspects up to fourteen days, extendable to 28 in “urgent” situations; the “introduction of Temporary Exclusion Orders and the use of citizenship deprivation orders in the terrorism context” that risk rendering persons stateless; and the reliance on diplomatic assurance in the deportation of “foreign nationals suspected of terrorism-related offenses”. The Committee also found that the system of special advocates, extended to civil damages claims, and of closed material procedures was not in accordance with ICCPR obligations under the rights to a fair trial and to an effective remedy, and expressed concern that the UK “current legal regime governing interception of communications and communication data allows for mass interception of communications and lacks sufficient safeguards against arbitrary interference with the right to privacy.”
Concluding ObservationsFrance: UN Committee criticizes counter-terrorism powers and surveillance laws
On 21 July, the UN Human Rights Committee issued its concluding observations on the compliance by France with its obligations under the International Covenant on Civil and Political Rights. The Committee, while welcoming the reform of the legal provisions on police custody, expressed concern that the maximum limit of custody has been extended up to 144 hours for terrorism suspects. The Committee drew attention to the new anti-terrorism law no. 2014-1353 introducing the speedy procedures to try suspects of the offence of apology of terrorism, restrictions to freedom of movement, and the new criminal offence of “individual terrorist enterprise”. The Human Rights Committee stressed that the new law on surveillance provided the intelligence services with excessively broad and highly intrusive surveillance powers based on vague and imprecisely defined grounds, without prior judicial authorization or an adequate and independent control mechanism.
Concluding Observations (F)France: Constitutional Council overall upholds constitutionality of Intelligence Law
On 23 July, the Constitutional Council held that the new Law on Intelligence, allowing for broad surveillance and storage of data, was mostly compatible with the French Constitution, as the guarantees provided for are sufficient to avoid the arbitrariness of the interference with, and did not constitute a disproportionate infringement of, the rights to privacy, freedom of expression. Nonetheless, the Constitutional Council held that three provisions of the Law were not in line with the French Constitution and declared them void: the procedure allowing for the real-time surveillance of a person without prior authorization by the Prime Minister; a provision limiting the financial independence of the national commission of control on surveillance methods, the oversight mechanism; and the provision delegating to Government regulations the grounds condition and procedures for surveillance and storage of information of communications originating or intercepted abroad, since it lack the requirement of quality of law to limit an individual’s rights.
France: Deportation of Chechen to Russia held unlawful by the European Court of Human Rights
On 9 July, the European Court of Human Rights ruled that France would be in breach of the principle of non-refoulement under article 3 of the European Convention on Human Rights (ECHR) were they to deport R.K., a Russian national from Chechnya, to the Russian Federation. The Court affirmed that R.K would be at risk of being subject to at least inhuman or degrading treatment in the Russian Federation. R.K. is the brother of three persons suspected by Russian authorities to have participated or collaborated in ‘terrorist’ attacks in Chechnya. He had been arrested in 2003 and stopped in 2006 and beaten up both times by the authorities, the last time, he claims, to extract a ‘confession’ of participating in terrorist activities. While the French authorities had refused him asylum, the Court held that the situation in Chechnya and Caucasus countries coupled with the fact that he has been officially called by the authorities for questioning demonstrated that he remained at risk of being subject to torture or inhuman or degrading treatment or punishment.
Judgment (F)Germany: Reporters Without Borders sues intelligence service
On 30 June, the NGO Reporters Without Borders Germany (RSF-Germany) filed a lawsuit against the German foreign intelligence service, the Bundesnachrichtendienst (BND), claiming that it had unlawfully placed the email communications of the organization under surveillance. The organization denounced the chilling effect of this surveillance, saying that journalists from Germany as well as authoritarian countries “can no longer rely on the assumption that these concerns will remain confidential.” Meanwhile, on 20 July, Wikileaks released classified documents of the US National Security Agency demonstrating that the US intelligence services had been spying since before 2005 on the German Minister of Foreign Affairs, Frank-Walter Steinmeier and other twenty targets linked to key offices for Germany foreign policy. Foreign Minister Steinmeier was reported to have been “thrilled that his tactic of asking Condoleezza Rice no hard questions about CIA renditions had worked” when confronting his US counterpart on the suspected use of bases in Germany for these practices.
RSF-DE Statement Wikileaks Statement Press Article
Germany: Prosecutor investigating leaks website for treason fired
On 4 August, the federal Justice Minister Heiko Maas dismissed federal chief prosecutor Harald Range for having initiated investigations for treason against the leaks website and organization Netwpolitik.org. This leaks platform was reportedly subject to investigation for having published classified documents “on plans by Germany’s intelligence services to expand internet surveillance,” specifically to increase funding for its online surveillance programme and setting up a special unit to monitor social networking websites. Harald Range declared that his removal constituted an unacceptable political interference with an investigation and that “represents an intolerable encroachment on the independence of the judiciary.”
Press Article 1 Press Article 2
Spain: UN Human Rights Committee concerned at incommunicado detention of terrorist suspects
On 20 July, the UN Human Rights Committee issued its concluding observations on the compliance by Spain with its obligations under the International Covenant on Civil and Political Rights (ICCPR). While it took note of the proposed draft law reforming the system of incommunicado detention for terrorist suspects, the Committee expressed concern at its present continuation and at the fact that the reform itself did not contemplate abolition of the practice incommunicado detention. The Committee stressed that this detention regime failed to guarantee the full enjoyment of fair trial rights under article 14 ICCPR, in particular the right to legal assistance.
Concluding Observations (S) Spain: Investigative Judge drops investigation into Guantánamo human rights violations
On 17 July, Investigative Judge José de la Mata issued a request to the National Court (Audiencia Nacional) to authorize the closing of the investigations into the responsibility of certain senior US officials into allegations of torture and ill-treatment occurred in the detention centre of Guantánamo Bay. The Investigative Judge held that Spanish courts lack jurisdiction, under the 2014 reformed universal jurisdiction regime, because the facts contested in the investigation would not constitute “acts against protected persons in armed conflict” nor “crimes of torture or against moral integrity”. Furthermore, the Judge held that, although one of the victims was a Spanish citizen at the moment of the contested facts, the requirement that the proceedings be against a Spanish citizen, or a foreign national habitually resident in Spain or a foreign national present in Spain was not satisfied. The European Center for Constitutional and Human Rights and the Center for Constitutional Rights announced appeal against the decision.
Audiencia Statement (S) NGO Statement (E)
Slovakia: Constitutional Court invalidates surveillance laws
On 26 June, a ruling of the Constitutional Court invalidating mass surveillance legislation entered into force. The legislation allowed for sweeping mass surveillance of communications by security services in breach of the right to privacy. The Constitutional Court had ruled that the Electronic Communications Act infringed the right to privacy because it allowed for data retention of all persons using means of communications, such as emails or phones, without suspicion of being linked to a criminal offence not limitations in terms of time, geographical location or targets. The Court further invalidated for undue interference with the right to privacy two provisions of the Penal Code and of the Police Force Act that authorized access and retention of data for, respectively, “serious crimes” and “ordinary crimes”. The Court ordered the National Council of the Slovak Republic to produce a new draft of the legislative provisions in six months in compliance with guarantees of the right to privacy.
Former Yugoslav Republic of Macedonia: UN Human Rights Committee concerned at mass surveillance
On 20 July, the UN Human Rights Committee issued its concluding observations on the compliance by the former Yugoslav Republic of Macedonia with its obligations under the International Covenant on Civil and Political Rights (ICCPR). The UN Committee expressed concern “about reports that thousands of State party nationals, including opposition politicians and journalists, have been allegedly subjected to wiretapping by the Security Services, potentially impacting their rights to freedom of expression and privacy.” Furthermore, it determined that the country was not in compliance with its obligations because “individuals who have been subjected to unlawful surveillance are not systematically informed thereof, and therefore are not in a position to access to adequate legal remedies.”
Concluding Observations Uzbekistan: UN Human rights Committee addresses human rights violations in countering ‘terrorism’
On 20 July, the UN Human Rights Committee issued its concluding observations on the compliance by the Uzbekistan with its obligations under the International Covenant on Civil and Political Rights (ICCPR). The Committee expressed concern at the “overly-broad definition of terrorism and terrorist activities that is reportedly widely used to charge and prosecute members or suspected members of banned Islamic movements,” and “legal safeguards for persons suspected of, or charged with, a terrorist or related crime and allegations of incommunicado detention, torture and long prison sentences in inhuman and degrading conditions.” The Committee found that ICCPR obligations were not respected given “the alleged practice of arbitrarily extending prison sentences that are set to be completed of human rights defenders, government critics, persons convicted of religious extremism or of membership in Islamic movements banned in the State party by prosecuting and convicting them for repeated violations of the prison rules.”
Concluding ObservationsUzbekistan: Law adopted on citizen forfeiture for terrorist offences
On 10 August, amendments to article 21 of the “Law on Citizenship”, which included in the legislation additional circumstances for forfeiting one’s citizenship, were signed into law. According to the updated law, the Uzbek citizenship may be forfeited “in case a person has caused substantial harm to the interests of society and the State, by engaging in activities for the benefit of a foreign country or by committing crimes against peace and security”. These types of crimes, according to the Criminal Code of the Republic of Uzbekistan, include the crime of ‘terrorism’ (article 155), ‘non-reporting of information and facts about terrorist acts which are being prepared or have been committed’ (article 155-1), and ‘training in order to carry out terrorist activity’ (article 155-2).
UNITED NATIONS & REGIONAL ORGANIZATIONS
UN: Human Rights Council adopts human rights and counterterrorism resolution
On 1 July, the UN Human Rights Council adopted its resolution on “[p]rotection of human rights and fundamental freedoms while countering terrorism.” The resolution affirms States must “ensure that any person who alleges that his or her human rights or fundamental freedoms have been violated has access to an effective remedy and that victims of human rights violations receive adequate, effective and prompt reparations, which should include, as appropriate, restitution, compensation, rehabilitation and guarantees of non-recurrence.” The Council called upon States to: “review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law, and urges them to take measures to ensure that interference with the right to privacy is regulated by law, which must be publicly accessible, clear, precise, comprehensive and non- discriminatory, and that such interference is not arbitrary or unlawful, bearing in mind what is reasonable to the pursuance of legitimate aims.”
EU: Parliament establishes position in Passenger Name Record negotiations
On 15 July, the European Parliament’s Civil Liberties, Justice and Home Affairs (LIBE) Committee approved its position in the negotiation with the Council of the EU of the Draft EU passenger name record (PNR), two years after that same committee rejected an earlier draft of the data sharing law for flight passenger information. British MEP Timothy Kirkhope, Draft Directive’s Rapporteur, said the aim was to reach an agreement by the end of the year. The agreed position allows for the collection of personal data of flight passengers entering or leaving the EU. Around sixty different categories of PNR data would be collected, including contact information, travel routes, computer IP-addresses, hotel bookings, credit card information and diet preferences. The stated aim of this new law is to help investigators tracking “terrorist” suspects across borders.
EU: Commission Vice-President requested to investigate EU law compliance of six countries’ data retention laws
On 2 July, the organization European Digital Rights (EDRi) sent a letter to First Vice-President of the European Commission Frans Timmermans, in charge of the fundamental rights portfolio, calling for investigations into the lack of compliance of the data retention laws in six Member States with the rights to privacy and to data protection under articles 7 and 8 of the Charter of Fundamental Rights of the EU as interpreted in the Digital Rights Ireland judgment of the Court of Justice of the EU. The organization had undertaken an assessment of the compliance of the legislation of Croatia, Denmark, Finland, Italy, Poland and the United Kingdom.
EU: Parliament adopts resolution on European Security Agenda
On 9 July, the European Parliament approved a resolution on the European Security Agenda presented by the European Commission. The Parliament welcomed the “Commission’s choice to base the Agenda on the principles of full compliance with the rule of law and fundamental rights which should be guaranteed through proper judicial oversight” and the “Commission’s commitment to strictly assess any security measure it proposes … also for its compliance with fundamental rights.” The Parliament noted that the EU “lacks an agreed definition of ‘national security’” and stressed the “need to improve the democratic and judicial oversight of Member State intelligence services.” The European Parliament reiterated “its resolve to ensure accountability for massive violations of fundamental rights, under the guide of the fight against terrorism, in particular in the context of the transportation and illegal detention of prisoners in European countries by the CIA, by means of open and transparent investigations” and called “for the protection to be given to those revealing such violations, such as journalists and whistleblowers.”
Resolution Council of Europe: Human Rights Commissioner presents report on oversight of national security services
On 5 June, the Commissioner for Human Rights of the Council of Europe, Nils Muižnieks, presented a report on “Democratic and effective oversight of national security services.” The report “sets forth a number of measures necessary for making national oversight systems more effective and the security services accountable and fully compliant with human rights standards.” The Commissioner affirmed, in his presentation that “the current systems of oversight of national security services in Europe remain largely ineffective. Revelations over the last years about security operations which have violated human rights should have prompted reforms in this field, but progress has been disappointingly slow. European countries must now ensure more democratic and effective oversight of what their security services do and avoid future operations leading to new human rights violations.”
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