Fair trial and due process in the counter-terrorism context in Europe
In July 2012, a United Nations regional expert symposium, “Fair trial and due process in the counter-terrorism context”, was organized in Brussels by the CTITF Working Group on Protecting Human Rights while Countering Terrorism. This symposium was the third in a series of regional symposiums, with previous meetings held in Bangkok in February 2011 and Istanbul in February 2012. The fourth symposium will be held in South Asia in 2013.
The symposium brought together around 40 participants, including senior UN officials, representatives from the ministries of justice and foreign affairs of the participating European States, prosecutors, practitioners, representatives of regional organizations, national, regional and international judicial and human rights experts, civil society experts, and CTITF entities to discuss the challenges faced by European countries in ensuring fair trials and due process while combating terrorism.
The first day of the symposium was devoted to the international standards on fair trial and due process in the context of countering terrorism. Participants agreed that protecting human rights and ensuring respect for the rule of law in terrorism trials contribute to the goal of effectively countering terrorism, and that, as stated by Mr. Ivan Šimonović, UN Assistant Secretary-General for Human Rights, during his keynote speech in opening the symposium, “upholding human rights, creates a climate of trust between States and those under their jurisdiction, which is the very foundation of effective responses to global challenges such as terrorism”.
During the discussions, many participants highlighted that violating human rights in the context of countering terrorism has proven to be counter-productive. As explained by Mr. Torbjørn Frøysnes, Special Representative of the Secretary General of the Council of Europe, “it helps make martyrs out of criminals and boost propaganda efforts of terrorist organizations”.
Participants also agreed that suspected terrorists are best dealt by resorting to the criminal justice system, as Ms. Mara Marinaki, Managing Director for Global and Multilateral Issues of the European External Action Service, stated, “by promoting the judicial approach we strip the surface glamour from terrorism and we show it for what it is: a crime”.
The issues discussed on the first day ranged from investigation; detention of terrorism suspects, including administrative and preventative detention; the risk of torture and other forms of ill-treatment; the right to a prompt trial; access to counsel and preparation of defence; extradition of terrorism suspects; aspects of fair hearing, including the right to appeal; equality of arms between the prosecution and defence, including the access to evidence and the use of secret/intelligence information as evidence; and the independence and impartiality of judiciary, including special courts, extraordinary chambers and military courts.
According to Mr. Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, post-9/11 laws represent “a very broad and dangerous expansion of government powers to investigate, arrest, detain and prosecute individuals at the expense of due process, judicial oversight and public transparency” and need to be looked at closely. The non-derogable nature, even in times of emergencies, of the absolute prohibition of torture and of other forms of cruel, inhumane and degrading treatment or punishment, of arbitrary detention, and on the core elements of the right to a fair trial were further emphasized by participants.
The second day of the symposium focused on the exchange of regional and national experiences related to current legislation, practices and challenges in the fair trial and due process context in Europe, and ensuring accountability for human rights violations in the counter-terrorism context.
The discussions identified several challenges, for example counter-terrorism clauses in national legislation are too broadly formulated and the need for a universally recognized, precise and narrow definition of an act of terrorism as a step towards protecting against abuse at the national level. Furthermore, some participants expressed concern about measures initially defined as exceptional becoming normalized and about the use of secret evidence during trials.
Many participants agreed that in spite of the global challenges to human rights and the rule of law over the past decade in the counter-terrorism context, Europe has largely been successful in maintaining a criminal justice approach to counter terrorism and upholding the rule of law. Many States in the region have successfully prosecuted terrorist acts as ordinary crimes. Nevertheless, major challenges to ensuring the right to a fair trial and due process persist, particularly the lack of accountability for human rights violations that have occurred in the counter-terrorism context, giving rise to concerns about non-effective redress for those whose rights have been violated.
The outcomes of the symposium will be produced as a report.