Strasbourg, 17 July 2006

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Consultative Council of European Judges (CCJE)

Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of MEDEL (European Magistrates for Democrary and Freedom)

Medel on the Questionnaire concerning The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism

A. Introduction. –

Medel has read with utmost interest the answers to the questionnaire given by 23 Member States and by Japan.

The number of responses demonstrates the importance given by our Countries to this topic; nevertheless, we cannot but notice certain important absences, such as Belgium, Germany, Russia.

We consider it highly positive that most Countries have enacted laws that, while implementing the European Convention on Human Rights, have attributed it a superior rank in relation to their ordinary legislation. In many States, Courts consider the European Court’s case-law, even if only de facto, an integral part of their legal system. We like to quote to that respect the answer given by Estonia, which stated that in that Country … in several judgments … the Constitutional Review Chamber of the Supreme Court … has also supported its argumentation by quoting the Charter of Fundamental Rights of the European Union1.

In our opinion, times are ripe for a common reflection among our Countries and within the very CoE on the state of the evolution of the Human Rights protection network deriving from the enactment of the Convention system: especially as to what extent the Convention and the related case law have penetrated our juridical systems and as to the constitutional rank which its rules assume in law-producing processes.

The sources of information related to the question of the respect of Human Rights when the terrorism phenomena arise and the subsequent question on the role played by the Judiciary on this field are numerous. The fundamental one, in Europe, is the Council of Europe itself and, above all, the Reports the Commissioner for Human Rights presents after visiting our Countries; as well as, in relationship to recent relevant events, some documents by the Parliamentary Assembly and the Secretary General of the CoE.

This plurality of sources allows not only comparison among responses where available, but also to reflect on the national situations that have not been directly represented to the CCEJ.

The last Part of the Questionnaire regards terrorism and immigration.
Two different phenomena, and in our opinion we must strive to keep them separate. Each one implies judicial responses, but without confusion as to causes and possible reactions. As for the immigrants, the Questionnaire only deals with their position (admission, exclusion, deportation; preventive actions), while the treatment of the trafficking on human beings is not dealt with, thus strengthening the impression that migrants are considered a subject rather than an object of crime as they often are.

B. Concerning the definition of terrorism. –

A general remark.
Many Member States of the CoE that are also members of the EU modified their legislation on terrorism after the attacks of September 11th 2001.

The new laws were inspired by the Council Framework Decision of 13 June 2002 on fighting terrorism, that contains the following definition of Terrorist offences:

the intentional acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:
— seriously intimidating a population, or
— unduly compelling a Government or international organisation to perform or abstain from performing any act, or
— seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences:
(a) attacks upon a person’s life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; ….

A very wide definition, especially if compared with the contents of the CE’s Convention on the Suppression of Terrorism (Strasbourg, 27.1.1977), whose article 1 refers to a narrower range of protected situations:

a. an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970;
b. an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971;
c. a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents;
d. an offence involving kidnapping, the taking of a hostage or serious unlawful detention;
e. an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons.

We have put some words in bold to better underline some essential differences between the two documents. While, according to the latter, the protected goods are life, physical integrity or liberty, the former considers equivalent the attacks to human life as well as those provoking economic loss, even if major, in application of a proprietary logic of global security previously unknown to our continental culture. At the same time, it must be observed that this parification has the implicit effect of moving the problematic focus of the definition of terrorism from then object of crime to its motive. And since this motive is by definition political (as are political the aims enumerated in the Framework decision), the risk is that the very definition of terrorism even in its practical applications becomes a matter of political point of view. A definition of terrorism, therefore, which from objective becomes subjective, being centred on the intention of the perpetrator(s), with the only limit concerning the magnitude of the act.

The threshold of criminal repression has then moved forward and we must ask ourselves whether the principle of proportionality is respected. We also must ask ourselves what the role of Judges is in this field, and how interpretative processes may lead to a rationalization of the system.

In several Countries, the laws implementing the Framework Decision or other legislative measures enacted at the same time and for the general scope of strengthening domestic security, we have witnessed an intervention in the field of civil liberties in general; apart from the cases strictly related to terrorism, what has been modified is the balance between Judiciary and Police tasks and powers.

C. The findings of the Commissioner for Human Rights. –

And now, taking into account the responses to the Questionnaire and the information given by the different sources already mentioned, it’s possible to give a general overview, starting by the Reports by the Commssioner2:

1. Cyprus.

The Commissioner for Human Rights recommended in 2004 the following:

- To provide the refugee authority with the necessary financial and human resources for speedy processing of asylum …;
- To decriminalise offences relating to foreigners’ illegal entry to and residence in the territory of the Republic;
- To adopt and implement a plan of action against trafficking in human beings.

2. France.

There was a visit in September 2005 and these are the recommendations by the Commissioner:

- Functioning of the legal system and police custody
Reform arrangements for the involvement of counsel during police custody; Make the assistance of a lawyer compulsory; Extend the role of lawyers and require their presence during questioning, or at the very least, when the detainee is signing his/her statement; Make provision, in all the various custody procedures, for the presence of a lawyer from the outset.
Amend Article 437-7-2 of the Criminal Code, introduced by the Perben II Law, in order to guarantee the effective exercise of the profession of lawyer and safeguard the rights of the defence.
Reintroduce the obligation for police officers to notify persons being questioned of their right to remain silent.

- Law enforcement agencies
Take a firm stand against all reported instances of police brutality or violence; take action against the violent behaviour of certain police officers; Improve the in-service training of police officers and gendarmes and their supervisors; Ensure that serving police officers can be identified, at least by their service numbers.

- The situation of foreigners
Clarify the legal status of waiting zones.
Ensure that foreigners are under no pressure from police officers to forego their right to a one-day grace period; amend the law, to ensure that minors may in no circumstances refuse the one-day grace period before they are returned.
Take firm action against immediate returns before foreigners are placed in waiting zones; Make absolutely sure that asylum applications submitted by foreigners in waiting zones are systematically registered and processed.
Harmonise the practices followed by the different préfectures with regard to asylum applications.
Remove the requirement for foreigners to submit their asylum application in French or provide non-French-speaking asylum seekers with the linguistic assistance they need to submit their applications in due form.
Consider reimbursing the travel expenses of asylum seekers living in the provinces who have to travel to Paris for OFPRA interviews, or open OFPRA branches in the provinces.
Encourage the OPFRA to take account of the case-law of the CRR in its decisions; Give the CRR budget autonomy.
Consider extending legal aid to all asylum seekers.
Consider ways of effectively ensuring that all asylum seekers are treated equally, irrespective of where they are accommodated, in order to put them all on an equal footing, especially with regard to access to legal advice.
Review the priority procedure, to ensure that files submitted under this procedure are examined fully and carefully.

Close immediately the administrative holding centre in the Paris Police Headquarters and the one in Arenc.

Bring holding practices into line with national legislation and France’s international commitments; Adopt a text prohibiting the placement of minors, alone or not, in both waiting zones and holding centres.
Take firm action against the practice of stopping children, either in their parents’ presence or alone, for questioning, as a means of exerting pressure on parents subject to deportation orders.

- Human trafficking
Provide effective protection for victims of trafficking networks who co-operate with the police; Ensure that the provisional residence permits of victims who collaborate are renewed; provide greater assistance for their reintegration.
Take more active steps to combat modern slavery and incorporate into French law the ECHR’s case-law in this field.

3. Greece.
After his visit in 2002, the Commissioner had recommended :

7) implementing the 2002-2006 government programme to improve the conditions of immigrants’ reception and integration and taking legislative measures in order to define as an aggravating circumstance the possible racist or xenophobe motivation of an offence;
8) discontinuing use of the detention facilities of the Attica General Police Directorate for long-term detention of aliens awaiting expulsion; in more general terms, giving a positive follow up to the proposals of the National Commission for Human Rights regarding the reception of asylum seekers and fulfil enforcing Recommendation (2001)1 of the Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe member state, and Recommendation (99)12 of the Committee of Ministers on the return of rejected asylum seekers.

4. Italy.
There was a visit in 2005 and these are the recommendations:

Concerning reform of criminal law
5. Adopt legislation making it possible to reopen criminal proceedings when new evidence comes to light or the European Court of Human Rights gives a relevant decision;
6. Insert the crime of torture, as defined in international law, in the Criminal Code;
Concerning asylum procedures and asylum-seekers
17. Keep asylum-seekers in detention only when this is strictly necessary, and having studied each case individually;
18. Improve conditions of detention in identification centres (CDIs) and temporary residence and assistance centres (CPTAs);
19. Provide the funds which the territorial commissions need to operate;
20. Establish a second instance for asylum applications going through the ordinary procedure that suspends the expulsion order;
21. Ensure that the social rights of asylum-seekers are respected throughout Italy, particularly in the matter of access to health services;
22. Launch a programme to provide all asylum-seekers with decent accommodation and with meals until the asylum procedure is completed;
Concerning the principle of non-refoulement
23. Ensure that the principle of non-return is firmly respected when migrants are intercepted at sea or are being removed;
24. Ensure that each case is examined individually, making it possible for aliens arriving in Italy to apply for asylum;
Concerning the removal of illegal aliens
25. Ensure that the expulsion of aliens considered to pose a threat to national security be controlled and authorised by a judicial authority;
26. Authorise the presence of a member of the Red Cross on non-commercial flights carrying deported aliens;
Concerning the special situation on Lampedusa
27. Review the management and distribution of arrivals on the island of Lampedusa, to ensure that the number of occupants does not exceed the centre’s maximum capacity;
28. Pending opening of the new centre, improve living conditions in the existing centre, particularly by renovating the sanitary facilities;
29. Thoroughly investigate allegations in the press in October 2005 concerning ill-treatment and harassment, and punish any guilty parties;
30. Accept the permanent access of a UNHCR representative to the centre, to guarantee transparency of procedures;
Concerning illegal aliens
31. Facilitate practical arrangements and procedures for the obtention of residence permits and access to housing;

Concerning human rights institutions
36. Promote the appointment of a national ombudsman and the establishment of a national human rights institution based on the Paris principles;
37. Institutionalise and strengthen the powers of regional ombudsmen.

5. Portugal
The visit by the Commissioner has taken place in 2003 and led to the following recommendations:

The situation of foreigners
7. Strengthen practical efforts to combat the exploitation of foreign workers, notably through an increase in the resources of the General Inspectorate of Labour (IGT);
8. Rapidly adopt the draft directive foreseeing the extension of the renewal dates of permission to stay and other permits so as to allow foreigners a reasonable time to find alternative employment;
11. Enact the directive on the conditions for the family reunion of foreigners in possession of permission to stay permits foreseen by article 38(1)c of Decree-Law 34/2003, with due regard to the right to family life;
12. Provide for the suspensive effect of appeals during the admissibility stage of asylum applications;
13. Ensure that the personal testimony of asylum seekers is heard by the National Commissioner for Refugees in complex or contested admissibility cases;
14. Consider providing for the presence of a lawyer in the holding area at Lisbon Airport at all times, possibly through the signing of a protocol with the Bar Association, or an appropriate NGO;
15. Ensure that irregular immigrants are granted equal access to the measures foreseen by the Action Plan for Assistance to Victims.

6. United Kingdom.
At the conclusion of his 2005 visit the Commissioner recommended:

The Prevention of Terrorism
1. Provide for the judicial authorisation of all control orders; ensure that the essential content of the right to a fair trial under Article 6 of the ECHR is guaranteed where necessary.
2. Ensure that evidence suspected of having been extracted through torture is in no case admissible and in particular is not relied on in control order proceedings.
3. Ensure the judicial supervision of expulsions carried out on the basis of diplomatic assurances.
4. Continue to carefully monitor the impact of the application of anti-terror powers on disproportionately affected communities.
5. Provide for the automatic judicial review of the continuing administrative detention of foreigners under Immigration Act powers beyond three months; ensure that adequate legal representation is provided in such cases.
6. Ensure the public availability of comprehensive statistics relating to the detention of minors under Immigration Act powers.
7. Increase the use of alternative forms of supervision of families with children pending deportation.
8. Ensure that the detention of minors for any period be authorised by a judicial authority, and subject to periodic judicial review.
9. Take all possible measures to ensure that foreigners detained under Immigration Act powers are not held in ordinary prisons.
10. Extend the five day time-limit for the filing of appeals against negative Asylum and Immigration Tribunal decisions before the High Court, so as to permit their effective presentation.
11. Improve the quality of first instance asylum decisions by immigration officers, through increased training for front-line immigration officers and improved internal review of the reasons for high success rates of appeals by applicants from certain countries.
12. Provide for the possibility of open regimes in asylum processing centres for applicants in fast-track proceedings.
13. Reinstate the suspensive effect of appeals against negative asylum decisions on the deportation of applicants in fast-track proceedings.
14. Ensure that assistance from the National Asylum Support Service is not withheld from applicants who would otherwise be rendered destitute.
15. Place the burden of proof on the prosecution to show that the accused has deliberately destroyed his or her identity documents for the purpose of entering the country or frustrating deportation.
Juvenile Justice
16. Bring the age of criminal responsibility in the different jurisdictions of the United Kingdom in line with European norms.
17. Provide greater investment in alternative sentences for juvenile and young offenders.
18. In Scotland, provide for the prosecution of juvenile offenders under the age of 16 in specialised Youth Courts, in the event of their country-wide introduction.
Anti-Social Behaviour Orders
19. Ensure that Anti-social behaviour order guidelines adequately delimit the nature of the behaviour targeted.
20. Exclude the possibility of authorising ASBOs on the basis of hearsay evidence alone.
21. Restrict the ability to apply to the courts for Anti-Social Behaviour Orders to the authorities currently invested with this right.
22. Raise to 16 the age at which children in breach of terms of Anti-Social Behaviour Orders may be sentenced to custody.
23. Reformulate Anti-Social Behaviour Order guidelines so that they neither encourage nor permit the excessive publicity of the making of orders against juveniles. In order to guarantee the right of children to privacy, the reproduction and public dissemination of posters reproducing the pictures of children submitted to ASBOs should be prohibited.

The Commission for Equality and Human Rights
33. Ensure that the Commission for Equality and Human Rights enjoys the necessary resources and independence to carry out its functions effectively.

7. Spain.
The recommendations by the Commissioner for Human Rights in 2005 were very articulated:

1. Investigate rapidly and thoroughly all allegations of torture or ill-treatment, and deaths of detainees in police stations, premises of the Guardia Civil and other police authorities, applying where necessary the appropriate disciplinary and criminal sanctions. Establish appropriate procedures guaranteeing that allegations of ill treatment in a given detention centre, police station or Guardia Civil unit, will not be investigated exclusively or responded to directly by the officers allegedly involved but by specialist investigation services unconnected with the reported facts and under the supervision of a higher authority
2. Extend the prescription period for the crime of torture; consider removing the prescription of such offences altogether.
3. Remove from police stations and barracks any remaining instruments of defence prohibited by the regulations, which may cause dangerous physical harm.
4. Identify and eliminate the causes of the higher incidence of cases of ill-treatment by the police units of the local authorities and Autonomous Communities compared to national security forces. It may be useful, in this context, to introduce the control procedures similar to those used by the Ertzaintza more widely.
5. Create the necessary mechanisms for compensating victims of torture and ill-treatment, where necessary through legislative reforms.
6. Review the current regime of incommunicado detention so as to allow the detainee to meet his or her counsel in private, at least once.
The prison system
7. Revise, in the context of the reform of the Code of Criminal Procecdure, the legal provisions on pre-trial detention, bringing them into line with the criteria set forth by the European Court of Human Rights.

The administration of justice
18. Introduce a second instance for criminal proceedings, offering the possibility of appeal against all convictions delivered at first instance as provided for in the International Covenant of Civil and Political Rights and consider the ratification of Protocol No. 7 to the European Convention on Human Rights.
19. Ensure that the future Code of Criminal Procedure simplifies proceedings, reduces delays, and regulates telephone tapping in compliance with the requirements of the European Convention on Human Rights. Introduce the possibility of reviewing convictions handed down as a result of judicial proceedings which the European Court of Human Rights has declared to be contrary to the Convention.

Immigration and asylum
21. Adopt and promote the necessary measures at national and European level to combat the trafficking in human beings for the purposes of illegal immigration.
22. Facilitate the registration of foreigners and adopt measures to preclude use of the information contained in the municipal registry to penalise illegal immigrants.
23. Complete the reforms of the Retention Centres for Foreigners in order to improve the living conditions.
24. Ensure that the foreigners held in the centres have access at all times to all the necessary information about their situation. All centres should provide new arrivals with a sheet setting out their rights and duties, explained both clearly and fully. This information should be provided in various languages, and at the very least in English, French and Arabic. The information in foreign languages must be correct and be devoid of errors which could give rise to misunderstandings.
25. Facilitate, at all times, access to a lawyer and to an interpreter free of charge for foreign persons held in retention centres.
26. Bar associations should allocate the necessary resources to provide specific training in alien, immigration and asylum legislation for those acting as court-appointed lawyers dealing with foreigners in an unlawful situation or seeking asylum.
27. Set out clear rules concerning access by non-governmental organisations to Retention Centres for Foreigners.
28. Adopt the necessary measures to ensure that deportations and returns take place in strict compliance with the law, particularly the right to legal aid and an interpreter, with an indication of the grounds for the decision and the appeals that can be made. All cases of unlawful deportations or returns must be thoroughly investigated and the appropriate administrative and criminal sanctions imposed.
29. Avoid the collective return of foreigners, by ensuring the individual examination of each case and guaranteeing the right to appeal expulsions and access to asylum proceedings.
30. Adopt the necessary measures to ensure the respect for the life and safety of immigrants during collective assaults on the metal fences of Ceuta and Melilla. Ensure the human treatment of these persons, where possible in concertation with the Moroccan authorities and with those of other countries concerned by these migration flows, guaranteeing the exercise of their right to asylum and conducting, if necessary, the return to the country of origin with full respect for their physical integrity and dignity as human beings.
32. Examine the possibility of providing foreigners who, for various reasons, cannot be deported with certain necessary documentation, for example the general health card, without requiring the person’s inclusion on the municipal registry. In addition, welfare expenditure on the provision of care for these individuals must be maintained and increased and ways to provide them with occupations in certain areas examined in order to improve their situation.
37. Fully respect the legal requirements concerning the asylum application procedure, so as to preclude cases of unlawful deportation or return.
39. Ensure that all asylum seekers have unrestricted access to the application procedure and that they effectively enjoy the right to the assistance of a lawyer and an interpreter.

Trafficking in human beings
41. Strengthen the legal provisions pertaining to the prosecution of human-trafficking networks.
42. Improve the mechanisms protecting female victims of trafficking in order to guarantee their fundamental rights and facilitate the prosecution of traffickers.

Support and assistance to the victims of terrorism
46. Strengthen the mechanisms for assisting victims of terrorism.
47. Improve the co-ordination between the different administrations managing assistance schemes for victims of terrorism and, to the extent possible, establish a single office to administer all the assistance victims are entitled to.
48. Create the necessary mechanisms to ensure that assistance is rapidly afforded to victims without prolonged formalities.
49. Provide victims of terrorism with adequate care and attention on the occasion of trials against the persons accused of terrorist crimes, informing the former adequately and making sure, to the extent possible, that they enjoy the calm and respect they deserve as victims during judicial proceedings.

D. Conclusions. –

Medel prefers to avoid any comment, feeling convinced that a perusal permits to match the indications given by the Commissioner and the contents of the answers given to the Questionnaire.

However, there are two very serious topics that must be examined.

The first one is the practice consisting in a sort of collective deportation - toward third Countries, different from Country of origin and outside of Europe - of aliens who request asylum on arrival. This practice has been the object of many remarks by the CE High Commissioner of Human Rights3; and we want to return to this topic just to remind that it raises questions not extraneous to the competences of Judges.

On one hand the legality – according to the internal legal system and to European Human Rights Law – of these collective deportations must be reviewed in depth, as often it is executed without any previous identification of the asylum seekers and therefore inevitably without any serious review on the actual situation of the asylum seeker; on the other hand, it must be recalled that according to the case-law of the European Court of Human Rights the sending State remains directly responsible for the violations of the rights of the deported person perpetrated in the territory of the receiving State, even though the latter is not a member of the ECHR4.

In general, then, attention must be paid to a widespread phenomenon consisting in the overall administrativization of the discipline concerning migrants. More and more decisions in this area by the executive are subtracted to review on part of the judiciary, or are subject to a limited a posteriori review after execution of decisions which cannot be suspended. While Medel doesn’t by any means doubt the necessity that a sector of public life of such importance, political, economic, and social, be characterized by a wide margin of appreciation on part of the executive and that this should be endorsed with powers that enable it to act quickly and effectively, on the other hand we must stress the necessity that an equilibrium be achieved between the State’s position and the inalienable rights of migrants, and that effective means be designed for the Judiciary to control the respect of this equilibrium.

The second problem is that of extraordinary renditions.

The Parliamentary Assembly, through its Committee on Legal Affairs and Human Rights, has started an inquiry aimed at verifying if individuals, notably persons suspected of involvement in acts of terrorism, may have been arrested and detained, or transported while deprived of their liberty, by or at the instigation of foreign agencies, with the active or passive co-operation of States Parties to the Convention or by States Parties themselves at their own initiative, without such deprivation of liberty having been acknowledged5.

While awaiting the final results of this investigation, Medel must point out that the apprehension, the successive detention and secret deportation of a person constitutes a crime, according to all our legislations, should this happen with or without the consent or the active participation of public officials or other representative of our States. In the former hypothesis we would be facing aggravating circumstances. The matter, then, falls to its full extent within the competences of the Judiciary.

1 The Charter of Fundamental Rights of the European Union has been quoted in the reasoning of many decisions by the two European Courts and by several National Constitutional or Supreme Courts, since the historically first Decisions by the Constitutional Tribunal from Spain 30 November 2000, n. 292\2000. As regards the European Court of Human Rights, must be recalled the Decisions: 11 July 2002 - Goodwin vs. United Kingdom, 8 July 2004 – Vo vs. France, 30 June 2005 – Anheuser-Bush Inc. vs. Portugal, Bosphorus Hava Yollari Turism Ticaret Anonim Sirketi vs. Ireland. The list of the Decisions by the Court of Justice of the European Communities is so far wider, that it’s possible mention only some examples: T-236\02, T-336\03, C-453\03, C-11\04, C-12\04, C-194\04, T-305\04, C-328\04 1, T-396\04. The references to the Charter represent only an argument to confirm and then to strength the Rights already protected by the ECHR. But in the case Goodwin vs. UK the Strasbourg Court has gone farther beyond, arriving quite to extend the wideness of the notion of family as described in the ECHR to a completely new dimension.

2 Apart the Reports on the visits, for its importance it’s to be considered the Final report of Mr Alvaro Gil-Robles, Council of Europe Commissioner for Human Rights, October 1999-March 2006: CommDH(2006)17 / 29 March 2006).
3 Besides, these practices seem to represent a violation of article 4 of the Fourth Protocol of the ECHR (see the Decision by the Court of Strasbourg 7011\75)

4 On this argument, see the references contained in the decision BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ vs. Ireland, 30 June 2005.

5 See: A1Jur (2006) 03 rev, 22 January 2006; and the Report by the Secretary General on the use of his powers under Article 52 of the European Convention on Human Rights: SG/Inf (2006) 5 28 February 2006.

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