Directrices del Consejo de Europa sobre Derechos Humanos y la lucha contra el Terrorismo. Comité de Ministros 11 de Julio de 2002

Human rights

and the fight against terrorism

The Council of Europe Guidelines

Human rights and the fight against terrorism

Directorate General of Human Rights

Council of Europe

March 2005

Published originally by Council of Europe Publishing, ISBN 92-871-5694-8 (English), 92-871-

5692-1 (French). This non-commercial edition is intended for free distribution and may not be sold.

Directorate General of Human Rights

Council of Europe

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Printed at the Council of Europe

Contents

Preface by Terry Davis, Secretary General of the Council of Europe . . . . . . page 5

Guidelines

on human rights and the fight against terrorism . . . . . . . . . . . . page 7

Texts of reference

used for the preparation of the Guidelines on human rights and the fight against terrorism . . . . . . . . . . . . . page 13

Guidelines

on the protection of victims of terrorist acts . . . . . . . . . . . . . . page 41

Texts of reference

used for the preparation of the Guidelines on the protection of victims of terrorist acts

. . . . . . . . . . . . . . . . . page 47

Preface

The fight against terrorism has become a top priority for everyone following the terrorist attacks in recent years. These attacks have been perceived as a direct assault on the fundamental values of human rights, democracy and the rule of law which are our shared heritage.

Faced by terrorist acts and threats, the temptation for governments and parlia- ments is to react at once with force, setting aside the legal safeguards which exist in a democratic state. But let us be clear: in crises, such as those brought about by terro- rism, respect for human rights is even more important. Any other choice would favour the aims of terrorists and would undermine the foundations of our society.

On the other hand, the need to respect human rights is not an obstacle to the ef- fective fight against terrorism. This is why the Committee of Ministers of the Council of Europe adopted Guidelines on human rights and the fight against terrorism on

11 July 2002. These Guidelines are aimed at reconciling both requirements: defend- ing society and preserving fundamental rights and freedoms.

The Committee of Ministers also adopted Guidelines on the protection of vic- tims of terrorist acts on 2 March 2005.

These Guidelines are designed to serve as a practical guide for anti-terrorist poli- cies, legislation and operations which are both effective and respect human rights.

Guidelines

adopted by the Committee of Ministers on 11 July 2002

at the 804th meeting of the Ministers’ Deputies

The Committee of Ministers,

Preamble

[a] Considering that terrorism seriously jeopardises human rights, threatens democ- racy, and aims notably to destabilise legitimately constituted governments and to undermine pluralistic civil society;

[b] Unequivocally condemning all acts, methods and practices of terrorism as crimi- nal and unjustifiable, wherever and by whomever committed;

[c] Recalling that a terrorist act can never be excused or justified by citing motives such as human rights and that the abuse of rights is never protected;

[d] Recalling that it is not only possible, but also absolutely necessary, to fight terror- ism while respecting human rights, the rule of law and, where applicable, interna- tional humanitarian law;

[e] Recalling the need for States to do everything possible, and notably to co-operate, so that the suspected perpetrators, organisers and sponsors of terrorist acts are brought to justice to answer for all the consequences, in particular criminal and civil, of their acts;

[f] Reaffirming the imperative duty of States to protect their populations against pos- sible terrorist acts;

[g] Recalling the necessity for states, notably for reasons of equity and social solidar- ity, to ensure that victims of terrorist acts can obtain compensation;

[h] Keeping in mind that the fight against terrorism implies long-term measures with a view to preventing the causes of terrorism, by promoting, in particular, cohesion in our societies and a multicultural and inter-religious dialogue;

[i] Reaffirming States’ obligation to respect, in their fight against terrorism, the inter- national instruments for the protection of human rights and, for the member states in particular, the Convention for the Protection of Human Rights and Fundamen- tal Freedoms and the case-law of the European Court of Human Rights;

adopts the following Guidelines and invites member States to ensure that they are widely disseminated among all authorities responsible for the fight against terrorism.

I. States’ obligation to protect everyone against terrorism

States are under the obligation to take the measures needed to protect the funda- mental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in ac- cordance with the present Guidelines.

II. Prohibition of arbitrariness

All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any dis- criminatory or racist treatment, and must be subject to appropriate supervision.

III. Lawfulness

of anti-terrorist measures

1. All measures taken by States to combat terrorism must be lawful.

2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued.

IV. Absolute prohibition of torture

The use of torture or of inhuman or degrading treatment or punishment is abso- lutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.

V. Collection and processing

of personal data by any competent authority in the field of State security

Within the context of the fight against terrorism, the collection and the processing of personal data by any competent authority in the field of State security may interfere with the respect for private life only if such collection and processing, in particular:

(i) are governed by appropriate provisions of domestic law;

(ii) are proportionate to the aim for which the collection and the processing were foreseen;

(iii) may be subject to supervision by an external independent authority.

VI. Measures which interfere with privacy

1. Measures used in the fight against terrorism that interfere with privacy (in particu- lar body searches, house searches, bugging, telephone tapping, surveillance of cor- respondence and use of undercover agents) must be provided for by law. It must be possible to challenge the lawfulness of these measures before a court.

2. Measures taken to fight terrorism must be planned and controlled by the authori- ties so as to minimise, to the greatest extent possible, recourse to lethal force and, within this framework, the use of arms by the security forces must be strictly pro- portionate to the aim of protecting persons against unlawful violence or to the necessity of carrying out a lawful arrest.

VII. Arrest and police custody

1. A person suspected of terrorist activities may only be arrested if there are reason- able suspicions. He/she must be informed of the reasons for the arrest.

2. A person arrested or detained for terrorist activities shall be brought promptly before a judge. Police custody shall be of a reasonable period of time, the length of which must be provided for by law.

3. A person arrested or detained for terrorist activities must be able to challenge the lawfulness of his/her arrest and of his/her police custody before a court.

VIII. Regular supervision of pre-trial detention

A person suspected of terrorist activities and detained pending trial is entitled to regular supervision of the lawfulness of his or her detention by a court.

IX. Legal proceedings

1. A person accused of terrorist activities has the right to a fair hearing, within a rea- sonable time, by an independent, impartial tribunal established by law.

2. A person accused of terrorist activities benefits from the presumption of innocence.

3. The imperatives of the fight against terrorism may nevertheless justify certain restrictions to the right of defence, in particular with regard to:

(i) the arrangements for access to and contacts with counsel; (ii) the arrangements for access to the case-file;

(iii) the use of anonymous testimony.

4. Such restrictions to the right of defence must be strictly proportionate to their pur- pose, and compensatory measures to protect the interests of the accused must be taken so as to maintain the fairness of the proceedings and to ensure that proce- dural rights are not drained of their substance.

X. Penalties incurred

1. The penalties incurred by a person accused of terrorist activities must be provided for by law for any action or omission which constituted a criminal offence at the time when it was committed; no heavier penalty may be imposed than the one that was applicable at the time when the criminal offence was committed.

2. Under no circumstances may a person convicted of terrorist activities be sen- tenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.

XI. Detention

1. A person deprived of his/her liberty for terrorist activities must in all circum- stances be treated with due respect for human dignity.

2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to:

(i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client;

(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;

(iii) the separation of such persons within a prison or among different prisons,

on condition that the measure taken is proportionate to the aim to be achieved.

XII. Asylum, return (“refoulement”)

and expulsion

1. All requests for asylum must be dealt with on an individual basis. An effective remedy must lie against the decision taken. However, when the State has serious grounds to believe that the person who seeks to be granted asylum has participated in terrorist activities, refugee status must be refused to that person.

2. It is the duty of a State that has received a request for asylum to ensure that the possi- ble return (“refoulement“) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhu- man or degrading treatment or punishment. The same applies to expulsion.

3. Collective expulsion of aliens is prohibited.

4. In all cases, the enforcement of the expulsion or return (“refoulement“) order must be carried out with respect for the physical integrity and for the dignity of the person concerned, avoiding any inhuman or degrading treatment.

XIII. Extradition

1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism.

2. The extradition of a person to a country where he/she risks being sentenced to the death penalty may not be granted. A requested State may however grant an extradi- tion if it has obtained adequate guarantees that:

(i) the person whose extradition has been requested will not be sentenced to death; or

(ii) in the event of such a sentence being imposed, it will not be carried out.

3. Extradition may not be granted when there is serious reason to believe that:

(i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment;

(ii) the extradition request has been made for the purpose of prosecuting or punishing a person on account of his/her race, religion, nationality or political opinions, or that that person’s position risks being prejudiced for any of these reasons.

4. When the person whose extradition has been requested makes out an arguable case that he/she has suffered or risks suffering a flagrant denial of justice in the re- questing State, the requested State must consider the well-foundedness of that ar- gument before deciding whether to grant extradition.

XIV. Right to property

The use of the property of persons or organisations suspected of terrorist activities may be suspended or limited, notably by such measures as freezing orders or seizures, by the relevant authorities. The owners of the property have the possibility to challenge the lawfulness of such a decision before a court.

XV. Possible derogations

1. When the fight against terrorism takes place in a situation of war or public emer- gency which threatens the life of the nation, a State may adopt measures tempo- rarily derogating from certain obligations ensuing from the international instruments of protection of human rights, to the extent strictly required by the exi- gencies of the situation, as well as within the limits and under the conditions fixed by international law. The State must notify the competent authorities of the adop- tion of such measures in accordance with the relevant international instruments.

2. States may never, however, and whatever the acts of the person suspected of terror- ist activities, or convicted of such activities, derogate from the right to life as guar- anteed by these international instruments, from the prohibition against torture or inhuman or degrading treatment or punishment, from the principle of legality of sentences and of measures, nor from the ban on the retrospective effect of criminal law.

3. The circumstances which led to the adoption of such derogations need to be reas- sessed on a regular basis with the purpose of lifting these derogations as soon as these circumstances no longer exist.

XVI. Respect for peremptory norms of international law

and for international humanitarian law

In their fight against terrorism, States may never act in breach of peremptory norms of international law nor in breach of international humanitarian law, where applicable.

XVII. Compensation for victims of terrorist acts

When compensation is not fully available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terrorist acts, the State must contribute to the compensation of the victims of attacks that took place on its territory, as far as their person or their health is concerned.

used for the preparation of the Guidelines

on human rights and the fight against terrorism

Preliminary note

This document was prepared by the Secretariat, in co-operation with the Chair- man of the Group of Specialists on Human Rights and the Fight against Terrorism (DH-S-TER). It is not meant to be taken as an explanatory report or memorandum of the Guidelines.

Aim of the Guidelines

The Guidelines concentrate mainly on the limits to be considered and that States should not go beyond, under any circumstances, in their legitimate fight against terrorism.1 2 The main objective of these Guidelines is not to deal with other important questions such as the causes and consequences of terrorism or measures which might prevent it, which are nevertheless men- tioned in the Preamble to provide a background.3

Legal basis

The specific situation of States parties to the European Convention on Human Rights (“the Convention”) should be recalled: its Article 46 sets out the compulsory jurisdiction of the European Court of Human Rights (“the Court”) and the supervision of the execution of its judg- ments by the Committee of Ministers). The Convention and the case-law of the Court are thus a primary source for defining guidelines for the fight against terrorism. Other sources such as the

1. The Group of Specialists on Democratic Strategies for dealing with Movements threatening Human Rights

(DH-S-DEM) has not failed to confirm the well-foundedness of this approach :

“On the one hand, it is necessary for a democratic society to take certain measures of a preventative or repressive nature to protect itself against threats to the very values and principles on which that society is based. On the other hand, public authorities (the legislature, the courts, the administrative authorities) are under a legal obligation, also when taking measures in this area, to respect the human rights and fundamental freedoms set out in the European Convention on Human Rights and other instruments to which the member States are bound”.

See document DH-S-DEM (99) 4 Addendum, para. 16.

2. The European Court of Human Rights has also supported this approach:

“The Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret sur- veillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espio- nage and terrorism, adopt whatever measures they deem appropriate”, Klass and Others v. Germany, 6 September

1978, Series A no. 28, para. 49.

3. See below, p. 16.

UN Covenant on Civil and Political Rights and the observations of the United Nations Human

Rights Committee should however also be mentioned.

General considerations

The Court underlined on several occasions the balance between, on one hand, the defence of the institutions and of democracy, for the common interest, and, on the other hand, the protection of individual rights:

“The Court agrees with the Commission that some compromise between the require- ments for defending democratic society and individual rights is inherent in the system of the Convention”.4

The Court also takes into account the specificities linked to an effective fight against terrorism:

“The Court is prepared to take into account the background to the cases submitted to it, particularly problems linked to the prevention of terrorism” .5

Definition. Neither the Convention nor the case-law of the Court gives a definition of ter- rorism. The Court always preferred to adopt a case by case approach. For its part, the Parliamen- tary Assembly

“considers an act of terrorism to be ‘any offence committed by individuals or groups resorting to violence or threatening to use violence against a country, its institutions, its population in general or specific individuals which, being motivated by separatist aspirations, extremist ideological conceptions, fanaticism or irrational and subjective factors, is intended to create a climate of terror among official authorities, certain indi- viduals or groups in society, or the general public’.”6

Article 1 of the European Council Common Position of 27 December 2001 on the applica- tion of specific measures to combat terrorism gives a very precise definition of “terrorist act” that states:

“3. For the purposes of this Common Position, ‘terrorist act’ shall mean one of the fol- lowing intentional acts, which, given its nature or its context, may seriously damage a country or an international organisation, as defined as an offence under national law, where committed with the aims of:

4. Klass and Others v. Germany, 6 September 1978, Series A no. 28, para. 59. See also Brogan and Others v. the

United Kingdom, 29 November 1999, Series A no. 145-B, para. 48.

5. Incal v. Turkey, 9 June 1998, para. 58. See also the cases Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, paras. 11 and following, Aksoy v. Turkey, 18 December 1996, paras. 70 and 84; Zana v. Turkey, 25 November 1997, paras. 59-60; and, United Communist Party of Turkey and Others v. Turkey,

30 November 1998, para. 59.

6. Recommendation 1426 (1999), European democracies facing up to terrorism (23 September 1999), para. 5.

i. seriously intimidating a population, or

ii. unduly compelling a government or an international organisation to perform or abstain from performing any act, or

iii. seriously destabilising or destroying the fundamental political, constitutional, eco- nomic or social structures of a country or an international or ganisation:

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;

e. seizure of aircraft, ships or other means of public or goods transport;

f. manufacture, possession, acquisition, transport, supply or use of weapons, explo- sives or of nuclear, biological or chemical weapons, as well as research into, and devel- opment of, biological and chemical weapons;

g. release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life;

h. interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;

i. threatening to commit any of the acts listed under (a) to (h);

j. directing a terrorist group;

k. participating in the activities of a terrorist group, including by supplying informa- tion or material resources, or by funding its activities in any way, which knowledge of the fact that such participation will contribute to the criminal activities of the group.

For the purposes of this paragraph, ‘terrorist group’ shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. “Structured group” means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.”

The work in process within the United Nations on the draft general convention on interna- tional terrorism also seeks to define terrorism or a terrorist act.

Preamble

The Committee of Ministers,

[a] Considering that terrorism seriously jeopardises human rights, threatens democracy, and aims notably to destabilise legitimately constituted govern- ments and to undermine pluralistic civil society;

The General Assembly of the United Nations recognises that terrorist acts are

“activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity and security of States, destabilizing legitimately constituted Governments, undermining pluralistic civil society and having adverse consequences for the economic and social development of States”.7

[b] Unequivocally condemning all acts, methods and practices of terrorism as crimi- nal and unjustifiable, wherever and by whomever committed;

[c] Recalling that a terrorist act can never be excused or justified by citing motives such as human rights and that the abuse of rights is never protected;

[d] Recalling that it is not only possible, but also absolutely necessary, to fight terror- ism while respecting human rights, the rule of law and, where applicable, interna- tional humanitarian law;

The obligation to bring to justice suspected perpetrators, organisers and sponsors of terrorist acts is clearly indicated in different texts such as Resolution 1368 (2001) adopted by the Security Council at its 4370th meeting, on 12 September 2001 (extracts):

“The Security Council, […] Reaffirming the principles and purposes of the Charter of the United Nations, […] 3. Calls on all States to work together urgently to bring to jus- tice the perpetrators, organizers and sponsors of these terrorist attacks […]”.

Resolution 56/1, Condemnation of terrorist attacks in the United States of

America, adopted by the General Assembly on 12 September 2001 (extracts):

“The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, […] 3. Urgently calls for international cooperation to bring to justice the perpetrators, organizers and sponsors of the outrages of 11 September”.

[f] Reaffirming the imperative duty of States to protect their populations against possible terrorist acts;

The Committee of Ministers has stressed

7. Resolution 54/164, Human Rights and terrorism, adopted by the General Assembly, 17 December 1999.

“the duty of any democratic State to ensure effective protection against terrorism, respecting the rule of law and human rights […]”.8

[g] Recalling the necessity for States, notably for reasons of equity and social solidar- ity, to ensure that victims of terrorist acts can obtain compensation;

[h] Keeping in mind that the fight against terrorism implies long-term measures with a view to preventing the causes of terrorism, by promoting, in particular, co- hesion in our societies and a multicultural and inter-religious dialogue;

It is essential to fight against the causes of terrorism in order to prevent new terrorist acts. In this regard, one may recall Resolution 1258 (2001) of the Parliamentary Assembly, Democra- cies facing terrorism (26 September 2001), in which the Assembly calls upon States to

“renew and generously resource their commitment to pursue economic, social and political policies designed to secure democracy, justice, human rights and well-being for all people throughout the world” (17 (viii)).

In order to fight against the causes of terrorism, it is also essential to promote multi- cultural and inter-religious dialogue. The Parliamentary Assembly has devoted a number of im- portant documents to this issue, among which its Recommendations 1162 (1991) Contribution of the Islamic civilisation to European culture,9 1202 (1993) Religious tolerance in a democratic society,10 1396 (1999) Religion and democracy,11 1426 (1999) European democracies facing ter-

8. Interim resolution DH (99) 434, Human Rights action of the security forces in Turkey: Measures of a general character.

9. Adopted on 19 September 1991 (11th sitting). The Assembly, inter alia, proposed preventive measures in the field of education (such as the creation of a Euro-Arab University following Recommendation 1032 (1986)), the media (production and broadcasting of programmes on Islamic culture), culture (such as cul- tural exchanges, exhibitions, conferences etc.) and multilateral co-operation (seminars on Islamic funda- mentalism, the democratisation of the Islamic world, the compatibility of different forms of Islam with modern European society, etc.) as well as administrative questions and everyday life (such as the twinning of towns or the encouragement of dialogue between Islamic communities and the competent authorities on issues like holy days, dress, food etc.). See in particular paras. 10-12.

10. Adopted on 2 February 1993 (23rd sitting). The Assembly, inter alia, proposed preventive measures in the field of legal guarantees and their observance (especially following the rights indicated in Recommenda- tion 1086 (1988), paragraph 10), education and exchanges (such as the establishment of a “religious his- tory school-book conference”, exchange programmes for students and other young people), information and “sensibilisation” (like the access to fundamental religious texts and related literature in public libraries) and research (for instance, stimulation of academic work in European universities on questions concerning religious tolerance). See in particular paras. 12, 15-16.

11. Adopted on 27 January 1999 (5th sitting). The Assembly, inter alia, recommended preventive measures to promote better relations with and between religions (through a more systematic dialogue with religious and humanist leaders, theologians, philosophers and historians) or the cultural and social expression of religions (including religious buildings or traditions). See in particular paras. 9-14.

rorism,12 as well as its Resolution 1258 (2001), Democracies facing terrorism.13 The Secretary General of the Council of Europe has also highlighted the importance of multicultural and inter- religious dialogue in the long-term fight against terrorism.14

adopts the following Guidelines and invites member States to ensure that they are widely disseminated among all authorities responsible for the fight against terrorism.

I. States’ obligation to protect everyone against terrorism

The Court indicated that:

“the first sentence of Article 2 para. 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the L.C.B. v. the United Kingdom judg- ment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, para. 36). This obligation […] may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an indi- vidual whose life is at risk from the criminal acts of another individual (Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, para. 115; Kiliç v. Turkey, Appl. No. 22492/93, (Sect. 1) ECHR 2000-III, paras. 62 and 76).”15

II. Prohibition of arbitrariness

All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as

12. Adopted on 23 September 1999 (30th sitting). The Assembly underlined inter alia that “The prevention of terrorism also depends on education in democratic values and tolerance, with the eradication of the teaching of negative or hateful attitudes towards others and the development of a culture of peace in all individu- als and social groups” (para. 9).

13. Adopted on 26 September 2001 (28th sitting).

“[…] the Assembly believes that long-term prevention of terrorism must include a proper understanding of its social, economic, political and religious roots and of the individual’s capacity for hatred. If these issues are prop- erly addressed, it will be possible to seriously undermine the grass roots support for terrorists and their recruitment networks” (para. 9).

14. See “The aftermath of September 11: Multicultural and Inter-religious Dialogue – Document of the Secre- tary General”, Information Documents SG/Inf (2001) 40 Rev.2, 6 December 2001.

15. Pretty v. the United Kingdom, 29 April 2002, para. 38.

any discriminatory or racist treatment, and must be subject to appropriate supervision.

The words “discriminatory treatment” are taken from the Political Declaration adopted by Ministers of Council of Europe member States on 13 October 2000 at the concluding session of the European Conference against Racism.

III. Lawfulness

of anti-terrorist measures

1. All measures taken by States to combat terrorism must be lawful.

2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued.

IV. Absolute prohibition of torture

The use of torture or of inhuman or degrading treatment or punishment, is abso- lutely prohibited, in all circumstances, and in particular during the arrest, question- ing and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.

The Court has recalled the absolute prohibition to use torture or inhuman or degrading treatment or punishment (Article 3 of the Convention) on many occasions, for example:

“As the Court has stated on many occasions, Article 3 enshrines one of the most funda- mental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in abso- lute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Ar- ticle 15 para. 2 even in the event of a public emergency threatening the life of the nation […]. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p.

1855, para. 79). The nature of the offence allegedly committed by the applicant was therefore irrelevant for the purposes of Article 3. “16

“The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being

16. Labita v. Italy, 6 April 2000, para. 119. See also Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, para. 163; Soering v. the United Kingdom, 7 July 1989, Series A no. 161, para. 88; Chahal v. the United Kingdom, 15 November 1996, para. 79; Aksoy v. Turkey, 18 December 1996, para. 62; Aydin v. Turkey, 25 September 1997, para. 81; Assenov and Others v. Bulgaria, 28 October 1998, para. 93; Selmouni v. France, 28 July 1999, para. 95.

placed on the protection to be afforded in respect of the physical integrity of individu- als.”17

According to the case-law of the Court, it is clear that the nature of the crime is not relevant:

“The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these cir- cumstances, the Convention prohibits in absolute terms torture or inhuman or degrad- ing treatment or punishment, irrespective of the victim ‘s conduct.”.18

V. Collection and processing of personal data by any competent authority

in the field of State security

Within the context of the fight against terrorism, the collection and the process- ing of personal data by any competent authority in the field of State security may inter- fere with the respect for private life only if such collection and processing, in particular:

(i) are governed by appropriate provisions of domestic law;

(ii) are proportionate to the aim for which the collection and the processing were foreseen;

(iii) may be subject to supervision by an external independent authority.

As concerns the collection and processing of personal data, the Court stated for the first time that:

“No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, domestic law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept.

[…]

The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained.

17. Tomasi v. France, 27 August 1992, para. 115. See also Ribitsch v. Austria, 4 December 1995, para. 38.

18. Chahal v. the United Kingdom, 15 November 1996, para. 79; see also V. v. the United Kingdom, 16 Decem- ber 1999, para. 69.

[…] It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national secu- rity, the ground allowing such interferences is not laid down with sufficient preci- sion”.19

VI. Measures which interfere with privacy

1. Measures used in the fight against terrorism that interfere with privacy (in par- ticular body searches, house searches, bugging, telephone tapping, surveillance of correspondence and use of undercover agents) must be provided for by law. It must be possible to challenge the lawfulness of these measures before a court.

The Court accepts that the fight against terrorism may allow the use of specific methods:

“Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subver- sive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a demo- cratic society in the interests of national security and/or for the prevention of disorder or crime.”20

With regard to tapping, it must to be done in conformity with the provisions of Article 8 of the Convention, notably be done in accordance with the “law”. The Court, thus, recalled that:

“tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a ‘law’ that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see the above-mentioned Kruslin and Huvig judgments, p. 23, para. 33, and p. 55, para. 32, respectively)”. 21

The Court also accepted that the use of confidential information is essential in combating terrorist violence and the threat that it poses on citizens and to democratic society as a whole:

“The Court would firstly reiterate its recognition that the use of confidential informa- tion is essential in combating terrorist violence and the threat that organised terrorism poses to the lives of citizens and to democratic society as a whole (see also the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 48). This does not mean, however, that the investigating authorities have carte

19. Rotaru v. Romania, 4 May 2000, paras. 57-58.

20. Klass and Others v. Germany, 6 September 1978, Series A no. 28, para. 48.

21. Kopp v. Switzerland, 25 March 1998, para. 72. See also Huvig v. France, 24 April 1990, paras. 34-35.

blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts or by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (ibid., p. 23, para. 49).”22

Article 2 of the Convention does not exclude the possibility that the deliberate use of a lethal solution can be justified when it is “absolutely necessary” to prevent some sorts of crimes. This must be done, however, in very strict conditions so as to respect human life as much as pos- sible, even with regard to persons suspected of preparing a terrorist attack.

“Against this background, in determining whether the force used was compatible with Article 2, the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.”23

VII. Arrest and police custody

1. A person suspected of terrorist activities may only be arrested if there are reason- able suspicions. He/she must be informed of the reasons for the arrest.

The Court acknowledges that “reasonable” suspicion needs to form the basis of the arrest of a suspect. It adds that this feature depends upon all the circumstances, with terrorist crime falling into a specific category:

“32. The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 para. 1 (c). […] [H]aving a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reason- able’ will however depend upon all the circumstances. In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suf- fering, the police are obliged to act with utmost urgency in following up all informa- tion, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but

22. Murray v. the United Kingdom, 28 October 1994, para. 58.

23. McCann and Others v. the United Kingdom, 27 September 1995, para. 194. In this case, the Court, not con- vinced that the killing of three terrorists was a use of force not exceeding the aim of protecting persons against unlawful violence, considered that there had been a violation of Article 2.

which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.

[…] [T]he exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 para. 1 (c) is impaired […].

[…]

34. Certainly Article 5 para. 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism […]. It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confiden- tial sources of supporting information or even facts which would be susceptible of indi- cating such sources or their identity.

Nevertheless the Court must be enabled to ascertain whether the essence of the safe- guard afforded by Article 5 para. 1 (c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.”24

3. A person arrested or detained for terrorist activities must be able to challenge the lawfulness of his/her arrest and of his/her police custody before a court.

The protection afforded by Article 5 of the Convention is also relevant here. There are limits linked to the arrest and detention of persons suspected of terrorist activities. The Court accepts that protecting the community against terrorism is a legitimate goal but that this cannot justify all measures. For instance, the fight against terrorism can justify the extension of police custody, but it cannot authorise that there is no judicial control at all over this custody, or, that ju- dicial control is not prompt enough:

“The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5 para. 3, keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judi- cial officer.

The difficulties, alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Ar-

24. Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, paras. 32 and 34.

ticle 5 para. 3, for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 para. 3, dispensing altogether with “prompt” judicial control.” 25

“The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 para. 3.”26

“The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145-B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict con- straints as to time permitted by Article 5 para. 3. It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of ‘prompt- ness’.”27

“The Court has already accepted on several occasions that the investigation of terro- rist offences undoubtedly presents the authorities with special problems (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 33, para. 61, the Murray v. the United Kingdom judgment of 28 October

1994, Series A no. 300-A, p. 27, para. 58, and the above-mentioned Aksoy judgment, p. 2282, para. 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effec- tive control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see, mutatis mutandis, the above-mentioned Murray judgment, p. 27, para. 58).

What is at stake here is the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of interfer- ences by the executive is an essential feature of the guarantee embodied in Article 5 para. 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, ‘one of the fundamental principles of a democratic society …, which is expressly referred to in the Preamble to the Convention’ (see the above-mentioned Brogan and Others judgment, p. 32, para. 58, and the above-mentioned Aksoy judgment, p. 2282, para. 76).”28

25. Brogan and Others v. the United Kingdom, 29 November 1998, Series A no. 145-B, para. 61.

26. Brogan and Others v. the United Kingdom, 29 November 1998, Series A no. 145-B, para. 62. See also

Brannigan and Mc Bride v. the United Kingdom, 26 May 1993, para. 58.

27. Aksoy v. Turkey, 12 December 1996, para. 66.

28. Sakik and Others v. Turkey, 26 November 1997, para. 44.

VIII. Regular supervision of pre-trial detention

A person suspected of terrorist activities and detained pending trial is entitled to regular supervision of the lawfulness of his or her detention by a court.

IX. Legal proceedings

1. A person accused of terrorist activities has the right to a fair hearing, within a rea- sonable time, by an independent, impartial tribunal established by law.

The right to a fair trial is acknowledged, for everyone, by Article 6 of the Convention. The case-law of the Court states that the right to a fair trial is inherent to any democratic society.

Article 6 does not forbid the creation of special tribunals to judge terrorist acts if these special tribunals meet the criterions set out in this article (independent and impartial tribunals es- tablished by law):

“The Court reiterates that in order to establish whether a tribunal can be considered ‘in- dependent’ for the purposes of Article 6 para. 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safe- guards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 281, para. 73).

As to the condition of ‘impartialit’y within the meaning of that provision, there are two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. […] (see, mutatis mutandis, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030-31, para. 58).”29

“Its (the Court’s) task is not to determine in abstracto whether it was necessary to set up such courts (special courts) in a Contracting State or to review the relevant practice, but to ascertain whether the manner in which one of them functioned infringed the applicant’s right to a fair trial. […] In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of

24 May 1989, Series A no. 154, p. 21, para. 48, the Thorgeir Thorgeirson judgment cited above, p. 23, para. 51, and the Pullar v. the United Kingdom judgment of 10 June

1996, Reports 1996-III, p. 794, para. 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint

29. Incal v. Turkey, 9 June 1998, para. 65.

of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see, mutatis mutandis, the Hauschildt judgment cited above, p. 21, para. 48, and the Gautrin and Others judgment cited above, pp. 1030–31, para. 58).

[…] [T]he Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces. It follows that the applicant could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.”30

2. A person accused of terrorist activities benefits from the presumption of innocence.

Presumption of innocence is specifically mentioned in Article 6, paragraph 2, of the European Convention on Human Rights that states: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. This article therefore applies also to persons suspected of terrorist activities.

Moreover,

“the Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities”. 31

Accordingly, the Court found that the public declaration made by a Minister of the Inte- rior and by two high-ranking police officers referring to somebody as the accomplice in a murder before his judgment

“was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the com- petent judicial authority. There has therefore been a breach of Article 6 para. 2”. 32

3. The imperatives of the fight against terrorism may nevertheless justify certain restrictions to the right of defence, in particular with regard to:

(i) the arrangements for access to and contacts with counsel; (ii) the arrangements for access to the case-file;

(iii) the use of anonymous testimony.

4. Such restrictions to the right of defence must be strictly proportionate to their purpose, and compensatory measures to protect the interests of the accused must

30. Incal v. Turkey, 9 June 1998, paras. 70-72.

31. Allenet de Ribemont v. France, 10 February 1995, para. 36.

32. Id., para. 41.

be taken so as to maintain the fairness of the proceedings and to ensure that proce- dural rights are not drained of their substance.

The Court recognises that an effective fight against terrorism requires that some of the guarantees of a fair trial may be interpreted with some flexibility. Confronted with the need to examine the conformity with the Convention of certain types of investigations and trials, the Court has, for example, recognised that the use of anonymous witnesses is not always incompa- tible with the Convention.33 In certain cases, like those which are linked to terrorism, witnesses must be protected against any possible risk of retaliation against them which may put their lives, their freedom or their safety in danger.

“the Court has recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the ano- nymity of an agent deployed in undercover activities, for his own or his family’s pro- tection and so as not to impair his usefulness for future operations “34

The Court recognised that the interception of a letter between a prisoner – terrorist – and his lawyer is possible in certain circumstances:

“Il n’en demeure pas moins que la confidentialité de la correspondance entre un détenu et son défenseur constitue un droit fondamental pour un individu et touche directement les droits de la défense. C’est pourquoi, comme la Cour l’a énoncé plus haut, une dérogation à ce principe ne peut être autorisée que dans des cas exception- nels et doit s’entourer de garanties adéquates et suffisantes contre les abus (voir aussi, mutatis mutandis, l’arrêt Klass précité, ibidem).”35

The case-law of the Court insists upon the compensatory mechanisms to avoid that mea- sures taken in the fight against terrorism do not take away the substance of the right to a fair trial.36 Therefore, if the possibility of non-disclosure of certain evidence to the defence exists, this needs to be counterbalanced by the procedures followed by the judicial authorities:

“60. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecu- tion and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see the Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, paras. 66, 67). In addition Article 6 para. 1 requires, as indeed does English law (see paragraph 34

33. See Doorson v. the Netherlands, 26 March 1996, paras. 69-70. The Doorson case concerned the fight against drug trafficking. The concluding comments of the Court can nevertheless be extended to the fight against terrorism. See also Van Mechelen and Others v. the Netherlands, 23 April 1997, para. 52.

34. Van Mechelen and Others v. the Netherlands, 23 April 1997, para. 57.

35. Erdem v. Germany, 5 July 2001, para. 65, text available only in French.

36. See notably, Chahal v. the United Kingdom, 15 November 1996, paras. 131 and 144, and Van Mechelen and

Others v. the Netherlands, 23 April 1997, para. 54.

above), that the prosecution authorities should disclose to the defence all material evi- dence in their possession for or against the accused (see the above-mentioned Edwards judgment, para. 36).

61. However, as the applicants recognised (see paragraph 54 above), the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect wit- nesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused (see, for example, the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, para. 70). In some cases it may be necessary to withhold certain evi- dence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 para. 1 (see the Van Mechelen and Others v. the Netherlands judgment of 23 April

1997, Reports 1997-III, para. 58). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see the above-mentioned Doorson judgment, para. 72 and the above-men- tioned Van Mechelen and Others judgment, para. 54).

62. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them (see the above-mentioned Edwards judgment, para. 34). Instead, the European Court’s task is to ascertain whether the decision-making proce- dure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.”37

X. Penalties incurred

1. The penalties incurred by a person accused of terrorist activities must be pro- vided for by law for any action or omission which constituted a criminal offence at the time when it was committed; no heavier penalty may be imposed than the one that was applicable at the time when the criminal offence was committed.

This guideline takes up the elements contained in Article 7 of the European Convention on Human Rights. The Court recalled that:

“The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or

37. Rowe and Davies v. the United Kingdom, 16 February 2000, paras. 60-62.

other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecu- tion, conviction and punishment (see the S.W. and C.R. v. the United Kingdom judg- ments of 22 November 1995, Series A nos. 335-B and 335-C, pp. 41-42, para. 35, and pp. 68-69, para. 33 respectively).” 38

“The Court recalls that, according to its case-law, Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence and the sanctions provided for it must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.

When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statu- tory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see the Cantoni v. France judgment of 15 November

1996, Reports of Judgments and Decisions 1996-V, p. 1627, para. 29, and the S.W. and

C.R. v. the United Kingdom judgments of 22 November 1995, Series A nos. 335-B and

335-C, pp. 41-42, para. 35, and pp. 68-69, para. 33, respectively).” 39

2. Under no circumstances may a person convicted of terrorist activities be sen- tenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.

The present tendency in Europe is towards the general abolition of the death penalty, in all circumstances (Protocol No. 13 to the Convention). The member States of the Council of Europe still having the death penalty within their legal arsenal have all agreed to a moratorium on the implementation of the penalty.

XI. Detention

1. A person deprived of his/her liberty for terrorist activities must in all circum- stances be treated with due respect for human dignity.

According to the case-law of the Court, it is clear that the nature of the crime is not relevant:

“The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these cir-

38. Ecer and Zeyrek v. Turkey, 27 February 2001, para. 29.

39. Baskaya and Okçuoglu v. Turkey, 8 July 1999, para. 36.

cumstances, the Convention prohibits in absolute terms torture or inhuman or degrad- ing treatment or punishment, irrespective of the victim ‘s conduct.”.40

It is recalled that the practice of total sensory deprivation was condemned by the Court as being in violation with Article 3 of the Convention.41

(i) the regulations concerning communications and surveillance of correspon- dence, including that between counsel and his/her client;

With regard to communication between a lawyer and his/her client, the case-law of the Court may be referred to, in particular a recent decision on inadmissibility in which the Court recalls the possibility for the State, in exceptional circumstances, to intercept correspondence between a lawyer and his/her client sentenced for terrorist acts. It is therefore possible to take measures which depart from ordinary law:

“65. Il n’en demeure pas moins que la confidentialité de la correspondance entre un détenu et son défenseur constitue un droit fondamental pour un individu et touche directement les droits de la défense. C’est pourquoi, comme la Cour l’a énoncé plus haut, une dérogation à ce principe ne peut être autorisée que dans des cas exception- nels et doit s’entourer de garanties adéquates et suffisantes contre les abus (voir aussi, mutatis mutandis, l’arrêt Klass précité, ibidem).

66. Or le procès contre des cadres du PKK se situe dans le contexte exceptionnel de la lutte contre le terrorisme sous toutes ses formes. Par ailleurs, il paraissait légitime pour les autorités allemandes de veiller à ce que le procès se déroule dans les meilleu- res conditions de sécurité, compte tenu de l’importante communauté turque, dont beaucoup de membres sont d’origine kurde, résidant en Allemagne.

67. La Cour relève ensuite que la disposition en question est rédigée de manière très précise, puisqu’elle spécifie la catégorie de personnes dont la correspondance doit être soumise à contrôle, à savoir les détenus soupçonnés d’appartenir à une organisa- tion terroriste au sens de l’article 129a du code pénal. De plus, cette mesure, à carac- tère exceptionnel puisqu’elle déroge à la règle générale de la confidentialité de la correspondance entre un détenu et son défenseur, est assortie d’un certain nombre de garanties : contrairement à d’autres affaires devant la Cour, où l’ouverture du courrier était effectuée par les autorités pénitentiaires (voir notamment les arrêts Campbell, et Fell et Campbell précités), en l’espèce, le pouvoir de contrôle est exercé par un magis- trat indépendant, qui ne doit avoir aucun lien avec l’instruction, et qui doit garder le

40. Chahal v. the United Kingdom, 15 November 1996, para. 79; see also V. v. the United Kingdom, 16 Decem- ber 1999, para. 69.

41. See Ireland v. the United Kingdom, 18 January 1978, notably paras. 165-168.

secret sur les informations dont il prend ainsi connaissance. Enfin, il ne s’agit que d’un contrôle restreint, puisque le détenu peut librement s’entretenir oralement avec son défenseur ; certes, ce dernier ne peut lui remettre des pièce écrites ou d’autres objets, mais il peut porter à la connaissance du détenu les informations contenues dans les documents écrits.

68. Par ailleurs, la Cour rappelle qu’une certaine forme de conciliation entre les impé- ratifs de la défense de la société démocratique et ceux de la sauvegarde des droits indi- viduels est inhérente au système de la Convention (voir, mutatis mutandis, l’arrêt Klass précité, p. 28, para. 59).

69. Eu égard à la menace présentée par le terrorisme sous toutes ses formes (voir la décision de la Commission dans l’affaire Bader, Meins, Meinhof et Grundmann c/ Allemagne du 30 mai 1975, Requête nº 6166/75), des garanties dont est entouré le contrôle de la correspondance en l’espèce et de la marge d’appréciation dont dispose l’Etat, la Cour conclut que l’ingérence litigieuse n’était pas disproportionnée par rapport aux buts légitimes poursuivis.”42

(ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters;

(iii) the separation of such persons within a prison or among different prisons,

With regard to the place of detention, the former European Commission of Human

Rights indicated that:

“It must be recalled that the Convention does not grant prisoners the right to choose the place of detention and that the separation from their family are inevitable conse- quences of their detention”.43

on condition that the measure taken is proportionate to the aim to be achieved.

“[…] the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is ‘necessary in a democratic society’ regard may be had to the State’s margin of appreciation (see, amongst other authorities, The Sunday Times v. the United Kingdom (No. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, para. 50).”44

42. Erdem v. Germany, 5 July 2001, paras. 65-69. The text of this judgment is available in French only. See also

Lüdi v. Switzerland, 15 June 1992.

43. Venetucci v. Italy (Appl. No. 33830/96), Decision as to admissibility, 2 March 1998.

44. Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, para. 44.

XII. Asylum, return (“refoulement”)

and expulsion

1. All requests for asylum must be dealt with on an individual basis. An effective remedy must lie against the decision taken. However, when the State has serious grounds to believe that the person who seeks to be granted asylum has partici- pated in terrorist activities, refugee status must be refused to that person.

Article 14 of the Universal Declaration of Human Rights states:

“1. Everyone has the right to seek and enjoy in other countries asylum from persecution”.

Moreover, a concrete problem that States may have to confront is that of the competition between an asylum request and a demand for extradition. Article 7 of the draft General Conven- tion on international terrorism must be noted in this respect:

“States Parties shall take appropriate measures, in conformity with the relevant provi- sions of national and international law, including international human rights law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offense referred to in Article 2”.

It is also recalled that Article 1 F of the Convention on the Status of Refugees of 28 July

1951 provides:

“F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has commit- ted a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations”.

2. It is the duty of a State that has received a request for asylum to ensure that the possible return (“refoulement“) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhu- man or degrading treatment or punishment. The same applies to expulsion.

3. Collective expulsion of aliens is prohibited.

This guideline takes up word by word the content of Article 4 of Protocol No. 4 to the Euro- pean Convention on Human Rights.

The Court thus recalled that:

“collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be under- stood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the

particular case of each individual alien of the group (see Andric v. Sweden, cited above)”45.

See the comments made in paragraph 15 above and the case-law references there mentioned.

XIII. Extradition

1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism.

2. The extradition of a person to a country where he/she risks being sentenced to the death penalty may not be granted. A requested State may however grant an extra- dition if it has obtained adequate guarantees that:

(i) the person whose extradition has been requested will not be sentenced to death;

(ii) in the event of such a sentence being imposed, it will not be carried out.

In relation to the death penalty, it can legitimately be deduced from the case-law of the Court that the extradition of someone to a State where he/she risks the death penalty is forbid- den.46 Accordingly, even if the judgment does not say expressis verbis that such an extradition is prohibited, this prohibition is drawn from the fact that the waiting for the execution of the sen- tence by the condemned person (“death row”) constitutes an inhuman treatment, according to Article 3 of the Convention. It must also be recalled that the present tendency in Europe is towards the general abolition of the death penalty, in all circumstances (see guideline X, Penal- ties incurred).

3. Extradition may not be granted when there is serious reason to believe that:

(i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment;

(ii) the extradition request has been made for the purpose of prosecuting or punish- ing a person on account of his/her race, religion, nationality or political opinions, or that that person’s position risks being prejudiced for any of these reasons.

As concerns the absolute prohibition to extradite or return an individual to a State in which he risks torture or inhuman and degrading treatment or punishment see above, para. 44.

45. Conka v. Belgium, 5 February 2002, para. 59.

46. See Soering v. the United Kingdom, 7 July 1989, Series A no. 161.

4. When the person whose extradition has been requested makes out an arguable case that he/she has suffered or risks suffering a flagrant denial of justice in the requesting State, the requested State must consider the well-foundedness of that argument before deciding whether to grant extradition.

The Court underlined that it

does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffer- ing a flagrant denial of a fair trial in the requesting country.”47

Article 5 of the European Convention for the suppression of terrorism48 states:

“Nothing in this Convention shall be interpreted as imposing an obligation to extra- dite if the requested State has substantial grounds for believing that the request for extradition for an offence mentioned in Article 1 or 2 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or politi- cal opinion, or that that person’s position may be prejudiced for any of these reasons.”

The explanatory report indicates:

“50. If, in a given case, the requested State has substantial grounds for believing that the real purpose of an extradition request, made for one of the offences mentioned in Article 1 or 2, is to enable the requesting State to prosecute or punish the person con- cerned for the political opinions he holds, the requested State may refuse extradition.

The same applies where the requested State has substantial grounds for believing that the person’s position may be prejudiced for political or any of the other reasons men- tioned in Article 5. This would be the case, for instance, if the person to be extradited would, in the requesting State, be deprived of the rights of defence as they are guaran- teed by the European Convention on Human Rights.“49

Moreover, it seems that extradition should be refused when the individual concerned runs the risk of being sentenced to life imprisonment without any possibility of early release,

47. Soering v. the United Kingdom, 7 July 1989, Series A no. 161, para. 113. Position confirmed by the Court in its judgment in the case Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240, para. 110: “As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, a trend which is in principle in the inter- ests of the persons concerned. The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice (see, mutatis mutandis, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 45, para. 113).”

and in its final decision on admissibility in the case Einhorn v. France, 16 October 2001, para. 32.

48. ETS No. 90, 27 January 1977.

49. Emphasis added.

which may raise an issue under Article 3 of the European Convention on Human Rights. The

Court underlined that

“it is […] not to be excluded that the extradition of an individual to a State in which he runs the risk of being sentenced to life imprisonment without any possibility of early release may raise an issue under Article 3 of the Convention (see Nivette, cited above, and also the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, and Sawoniuk v. the United Kingdom (dec.), Appl. No. 63716/00, 29 May 2001)”.50

XIV. Right to property

The use of the property of persons or organisations suspected of terrorist activi- ties may be suspended or limited, notably by such measures as freezing orders or sei- zures, by the relevant authorities. The owners of the property have the possibility to challenge the lawfulness of such a decision before a court.

See notably Article 8 of the United Nations Convention for the Suppression of the Financ- ing of Terrorism (New York, 9 December 1999):

“1. Each State Party shall take appropriate measures, in accordance with its domestic legal principles, for the identification, detection and freezing or seizure of any funds used or allocated for the purpose of committing the offences set forth in Article 2 as well as the proceeds derived from such offences, for purposes of possible forfeiture.

2. Each State Party shall take appropriate measures, in accordance with its domestic legal principles, for the forfeiture of funds used or allocated for the purpose of commit- ting the offences set forth in Article 2 and the proceeds derived from such offences.

3. Each State Party concerned may give consideration to concluding agreements on the sharing with other States Parties, on a regular or case-by-case basis, of the funds derived from the forfeitures referred to in this article.

4. Each State Party shall consider establishing mechanisms whereby the funds derived from the forfeitures referred to in this article are utilized to compensate the victims of offences referred to in Article 2, paragraph 1, subparagraph (a) or (b), or their families.

5. The provisions of this article shall be implemented without prejudice to the rights of third parties acting in good faith.”

The confiscation of property following a condemnation for criminal activity has been ad- mitted by the Court.51

50. Einhorn v. France, 16 October 2001, para. 27.

51. See Phillips v. the United Kingdom, 5 July 2001, in particular paras. 35 and 53.

XV. Possible derogations

1. When the fight against terrorism takes place in a situation of war or public emer- gency which threatens the life of the nation, a State may adopt measures tempo- rarily derogating from certain obligations ensuing from the international instruments of protection of human rights, to the extent strictly required by the exigencies of the situation, as well as within the limits and under the conditions fixed by international law. The State must notify the competent authorities of the adoption of such measures in accordance with the relevant international instruments.

2. States may never, however, and whatever the acts of the person suspected of ter- rorist activities, or convicted of such activities, derogate from the right to life as guaranteed by these international instruments, from the prohibition against tor- ture or inhuman or degrading treatment or punishment, from the principle of legality of sentences and of measures, nor from the ban on the retrospective effect of criminal law.

The Court has indicated some of the parameters that permit to say which are the situa- tions of “public emergency threatening the life of the nation”.52

The Court acknowledges a large power of appreciation to the State to determine whether the measures derogating from the obligations of the Convention are the most appropri- ate or expedient:

“It is not the Court’s role to substitute its view as to what measures were most appropri- ate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49)”.53

Article 15 of the Convention gives an authorisation to contracting States to derogate from the obligations set forth by the Convention “in time of war or other public emergency threatening the life of the nation”.

Derogations are however limited by the text of Article 15 itself (“No derogation from Ar- ticle 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (para- graph 1) and 7” and “to the extent strictly required by the exigencies of the situation”).

52. See Lawless v. Ireland, Series A no. 3, 1 July 1961.

53. Brannigan and McBride v. the United Kingdom, 26 May 1993, para. 59.

The Court was led to judge cases in which Article 15 was referred to by the defendant State. The Court affirmed therefore its jurisdiction to control the existence of a public emergency threatening the life of the nation:

“whereas it is for the Court to determine whether the conditions laid down in Article

15 for the exercise of the exceptional right of derogation have been fulfilled in the present case”.55

Examining a derogation on the basis of Article 15, the Court agreed that this derogation was justified by the reinforcement and the impact of terrorism and that, when deciding to put someone in custody, against the opinion of the judicial authority, the Government did not exceed its margin of appreciation. It is not up to the Court to say what measures would best fit the emergency situations since it is the direct responsibility of the governments to weigh up the situation and to decide between towards efficient measures to fight against terrorism or the res- pect of individual rights:

“The Court recalls that it falls to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emer- gency’ and, if so, how far it is necessary to go in attempting to overcome the emer- gency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the internatio- nal judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).

Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising

54. Labita v. Italy, 6 April 2000, para. 119. See also Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, para. 163; Soering v. the United Kingdom, 7 July 1989, Series A no. 161, para. 88; Chahal v. the United Kingdom, 15 November 1996, para. 79; Aksoy v. Turkey, 18 December 1996, para. 62; Aydin v. Turkey, 25 September 1997, para. 81; Assenov and Others v. Bulgaria, 28 October 1998, para. 93; Selmouni v. France, 28 July 1999, para. 95.

55. Lawless v. Ireland, 1 July 1961, A no. 3, para. 22.

its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.”56

Concerning the length of the custody after arrest, and even if the Court recognizes the existence of a situation that authorises the use of Article 15, seven days seems to be a length that satisfies the State obligations given the circumstances,57 but thirty days seems to be too long.58

General comment No. 29 of the UN Human Rights Committee59 on Article 4 of the Inter- national Covenant on Civil and Political Rights (16 December 1966) need also to be taken into consideration. This general observation tends to limit the authorised derogation to this Cove- nant, even in cases of exceptional circumstances.

XVI. Respect for peremptory norms of international law and for international humanitarian law

In their fight against terrorism, States may never act in breach of peremptory norms of international law nor in breach international humanitarian law, where applicable.

XVII. Compensation for victims of terrorist acts

When compensation is not fully available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terrorist acts, the State must contribute to the compensation of the victims of at- tacks that took place on its territory, as far as their person or their health is concerned.

First, see Article 2 of the European Convention on Compensation of Victims of Violent

Crimes (Strasbourg, 24 November 1983, ETS No. 116):

“1. When compensation is not fully available from other sources the State shall con- tribute to compensate:

a. those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence;

b. the dependants of persons who have died as a result of such crime.

56. Brannigan and Mc Bride v. the United Kingdom, 26 May 1993, para. 43.

57. See Brannigan and McBride v. the United Kingdom, 26 May 1993, paras. 58-60.

58. See Aksoy v. Turkey, 18 December 1996, paras. 71-84.

59. Adopted on 24 July 2001 at its 1950th meeting. See document CCPR/C/21/Rev.1/Add. 11.

2. Compensation shall be awarded in the above cases even if the offender cannot be prosecuted or punished.”

See also Article 8, para. 4, of the International Convention for the Suppression of the Fi- nancing of Terrorism (New York, 8 December 1999):

“Each State Party shall consider establishing mechanisms whereby the funds derived from the forfeitures referred to in this article are utilized to compensate the victims of offences referred to in Article 2, paragraph 1, sub-paragraph (a) or (b), or their fami- lies.”

Guidelines

adopted by the Committee of Ministers on 2 March 2005

at the 917th meeting of the Ministers’ Deputies

The Committee of Ministers,

Preamble

[a] Considering that terrorism seriously jeopardises human rights, threatens democ- racy, aims notably to destabilise legitimately constituted governments and to undermine pluralistic civil society and challenges the ideals of everyone to live free from fear;

[b] Unequivocally condemning all acts of terrorism as criminal and unjustifiable, wherever and by whomever committed;

[c] Recognising the suffering endured by the victims of terrorist acts and their close family and considering that these persons must be shown national and internatio- nal solidarity and support;

[d] Recognising in that respect the important role of associations for the protection of victims of terrorist acts;

[e] Reaffirming the Guidelines on Human Rights and the Fight against Terrorism, adopted on 11 July 2002 at the 804th meeting of the Ministers’ Deputies, as a per- manent and universal reference;

[f] Underlining in particular the States’ obligation to take the measures needed to pro- tect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life;

[g] Recalling also that all measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbi- trariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision;

[h] Considering that the present Guidelines aim at addressing the needs and concerns of the victims of terrorist acts in identifying the means to be implemented to help them and to protect their fundamental rights while excluding any form of arbitrari- ness, as well as any discriminatory or racist treatment;

[i] Considering that the present Guidelines should not, under any circumstances, be construed as restricting in any way the Guidelines of 11 July 2002,

adopts the following Guidelines and invites member States to implement them and ensure that they are widely disseminated among all authorities responsible for the fight against terrorism and for the protection of the victims of terrorist acts, as well as among representatives of civil society.

I. Principles

1. States should ensure that any person who has suffered direct physical or psycho- logical harm as a result of a terrorist act as well as, in appropriate circumstances, their close family can benefit from the services and measures prescribed by these Guidelines. These persons are considered victims for the purposes of these Guidelines.

2. The granting of these services and measures should not depend on the identifica- tion, arrest, prosecution or conviction of the perpetrator of the terrorist act.

3. States must respect the dignity, private and family life of victims of terrorist acts in their treatment.

II. Emergency assistance

In order to cover the immediate needs of the victims, States should ensure that ap- propriate (medical, psychological, social and material) emergency assistance is avail- able free of charge to victims of terrorist acts; they should also facilitate access to spiritual assistance for victims at their request.

III. Continuing assistance

1. States should provide for appropriate continuing medical, psychological, social and material assistance for victims of terrorist acts.

2. If the victim does not normally reside on the territory of the State where the terro- rist act occurred, that State should co-operate with the State of residence in ensur- ing that the victim receives such assistance.

IV. Investigation and prosecution

1. Where there have been victims of terrorist acts, States must launch an effective official investigation into those acts.

2. In this framework, special attention must be paid to victims without it being neces- sary for them to have made a formal complaint.

3. In cases where, as a result of an investigation, it is decided not to take action to pros- ecute a suspected perpetrator of a terrorist act, States should allow victims to ask for this decision to be re-examined by a competent authority.

V. Effective access to the law and to justice

States should provide effective access to the law and to justice for victims of terro- rist acts by providing:

(i) the right of access to competent courts in order to bring a civil action in sup- port of their rights, and

(ii) legal aid in appropriate cases.

VI. Administration of justice

1. States should, in accordance with their national legislation, strive to bring individ- uals suspected of terrorist acts to justice and obtain a decision from a competent tri- bunal within a reasonable time.

2. States should ensure that the position of victims of terrorist acts is adequately recognised in criminal proceedings.

VII. Compensation

1. Victims of terrorist acts should receive fair, appropriate and timely compensation for the damages which they suffered. When compensation is not available from other sources, in particular through the confiscation of the property of the perpetra- tors, organisers and sponsors of terrorist acts, the State on the territory of which the terrorist act happened must contribute to the compensation of victims for direct physical or psychological harm, irrespective of their nationality.

2. Compensation should be easily accessible to victims, irrespective of nationality.

To this end, the State on the territory of which the terrorist act happened should introduce a mechanism allowing for a fair and appropriate compensation, after a simple procedure and within a reasonable time.

3. States whose nationals were victims of a terrorist act on the territory of another State should also encourage administrative co-operation with the competent authorities of that State to facilitate access to compensation for their nationals.

4. Apart from the payment of pecuniary compensation, States are encouraged to con- sider, depending on the circumstances, taking other measures to mitigate the nega- tive effects of the terrorist act suffered by the victims.

VIII. Protection of the private and family life of victims of terrorist acts

1. States should take appropriate steps to avoid as far as possible undermining res- pect for the private and family life of victims of terrorist acts, in particular when carrying out investigations or providing assistance after the terrorist act as well as within the framework of proceedings initiated by victims.

2. States should, where appropriate, in full compliance with the principle of freedom of expression, encourage the media and journalists to adopt self-regulatory mea- sures in order to ensure the protection of the private and family life of victims of ter- rorist acts in the framework of their information activities.

3. States must ensure that victims of terrorist acts have an effective remedy where they raise an arguable claim that their right to respect for their private and family life has been violated.

IX. Protection of the dignity and security of victims of terrorist acts

1. At all stages of the proceedings, victims of terrorist acts should be treated in a manner which gives due consideration to their personal situation, their rights and their dignity.

2. States must ensure the protection and security of victims of terrorist acts and should take measures, where appropriate, to protect their identity, in particular where they intervene as witnesses.

X. Information for victims of terrorist acts

States should give information, in an appropriate way, to victims of terrorist acts about the act of which they suffered, except where victims indicate that they do not wish to receive such information. For this purpose, States should:

(i) set up appropriate information contact points for the victims, concerning in partic- ular their rights, the existence of victim support bodies, and the possibility of obtaining assistance, practical and legal advice as well as redress or compensation;

(ii) ensure the provision to the victims of appropriate information in particular about the investigations, the final decision concerning prosecution, the date and place of the hearings and the conditions under which they may acquaint themselves with the decisions handed down.

XI. Specific training for persons responsible for assisting victims of terrorist acts

States should encourage specific training for persons responsible for assisting vic- tims of terrorist acts, as well as granting the necessary resources to that effect.

XII. Increased protection

Nothing in these Guidelines restrains States from adopting more favourable ser- vices and measures than described in these Guidelines.

used for the preparation of the guidelines on the protection of victims of terrorist acts

Preliminary note

Preamble

The Committee of Ministers,

[a] Considering that terrorism seriously jeopardises human rights, threatens democracy, aims notably to destabilise legitimately constituted governments and to undermine pluralistic civil society and challenges the ideals of everyone to live free from fear;

The first part of this paragraph repeats paragraph [a] of the Preamble of the Guidelines adopted in July 2002. The phrase “free from fear” finds its origin in the second paragraph of the Preamble of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in its resolution 217 A (III) of 10 December 1948.

[b] Unequivocally condemning all acts of terrorism as criminal and unjustifiable, wherever and by whomever committed;

The wording repeats that of paragraph [b] of the Preamble of the July 2002

Guidelines.

[c] Recognising the suffering endured by the victims of terrorist acts and their close family and considering that these persons must be shown national and internatio- nal solidarity and support;

[d] Recognising in that respect the important role of associations for the protection of victims of terrorist acts;

[e] Reaffirming the Guidelines on Human Rights and the Fight against Terrorism, adopted on 11 July 2002 at the 804th meeting of the Ministers’ Deputies, as a per- manent and universal reference;

[f] Underlining in particular the States’ obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against ter- rorist acts, especially the right to life;

[g] Recalling also that all measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be sub- ject to appropriate supervision;

This paragraph repeats Guideline II of July 2002.

In this context, the European Commission against Racism and Intolerance (ECRI) General

Policy Recommendation No. 8 on Combating Racism while Fighting Terrorism of 17 March

2004 should be recalled.

[h] Considering that the present Guidelines aim at addressing the needs and con- cerns of the victims of terrorist acts in identifying the means to be implemented to help them and to protect their fundamental rights while excluding any form of arbitrariness, as well as any discriminatory or racist treatment;

Recommendation 1426 (1999) of the Parliamentary Assembly of the Council of Europe on European democracies facing up to terrorism of 23 September 1999 asks that the Committee of Ministers consider “the incorporation of the principle of fuller protection for victims of terro- rist acts at both national and international level”;

More recently, Recommendation 1677 (2004) and Resolution 1677 (2004) of the Parlia- mentary Assembly on the Challenge of terrorism in Council of Europe member States of 6

October 2004 should be recalled. The first one asks the Committee of Ministers to “finalise as soon as possible the elaboration of guidelines on the rights of victims and the corresponding duties of member States to provide all necessary assistance and to create a forum for the ex- change of good practice and training experiences between member States”. The second one “calls on national parliaments to (i.) adopt an integrated and co-ordinated approach to counter- ing terrorism at all its stages, including drawing up a legislative framework aimed at: […] (d.) pro- tecting, rehabilitating and compensating victims of terrorist acts”.

Moreover, Resolution No. 1 on Combating international terrorism, adopted by the Minis- ters at the 24th Conference of European Ministers of Justice (Moscow, 4-5 October 2001) invites the Committee of Ministers to “(c) [review] existing or, where necessary, [adopt] new rules concerning: […] iv. the improvement of the protection, support and compensation of victims of terrorist acts and their families”. Resolution No. 1 on Combating terrorism adopted by the Ministers at the 25th Conference of European Ministers of Justice (Sofia, 9-10 October

2003) reiterates this invitation.

Finally, paragraph 1 of the European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 8 on Combating Racism while Fighting Terrorism of

17 March 2004 recommends to governments of member States “to take all adequate measures,

especially through international co-operation, […] to support the victims of terrorism […]”.

[i] Considering that the present Guidelines should not, under any circumstances, be construed as restricting in any way the Guidelines of 11 July 2002;

The terms “invites member States to implement them and ensure that they are widely dis- seminated among all authorities responsible for the fight against terrorism” are taken from the last sentence of the Preamble to the Guidelines of July 2002.

I. Principles

Definition. Neither the European Convention on Human Rights nor the case-law of the Court gives a definition of what a victim of a terrorist act is, nor even of the word “victim”. The Court always preferred to adopt a case-by-case approach.

In the framework of the United Nations, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly (A/RES/40/34) gives the following definition:

“A. Victims of Crime

1. ‘Victims’ means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term ‘victim’also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.”

For its part, Article 1 of the Council of the European Union Framework Decision of

15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) states that for the purposes of the Framework Decision:

“(a) ‘victim’ shall mean a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omis- sions that are in violation of the criminal law of a Member State;”

Moreover, the Court recognises that the family of a victim can, in certain cases, be consid- ered as a victim:

Cyprus v. Turkey, 10 May 2001, para. 156:

“The Court recalls that the question whether a family member of a ‘disappeared person’ is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the person concerned a dimension and char- acter distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court further recalls that the essence of such a violation does not so much lie in the fact of the ‘disap- pearance’ of the family member but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Çakici v. Turkey [GC], no. 23657/94, para. 98, ECHR 1999-IV).”

2. The granting of these services and measures should not depend on the identifica- tion, arrest, prosecution or conviction of the perpetrator of the terrorist act.

Paragraph 2 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34) states that: “A person may be considered a victim, under this Declaration, re- gardless of whether the perpetrator is identified, apprehended, prosecuted or convicted […]”.

3. States must respect the dignity, private and family life of victims of terrorist acts in their treatment.

Paragraph 4 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34) specifies that: “Victims should be treated with compassion and respect for their dignity. […]”.

Article 2, paragraph 1, of the Council of the European Union Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) states

that: “Each Member State […] shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.”.

II. Emergency assistance

Paragraph 4 of Recommendation No. R (87) 21 of the Committee of Ministers to member States on assistance to victims and the prevention of victimisation recommends that the governments of member States “ensure that victims and their families, especially those who are most vulnerable, receive in particular […] emergency help to meet immediate needs […]”.

The word “assistance” was preferred to the word “help” in particular because it is used in several articles of the European Social Charter (Revised) (CETS No. 163, of 3 May 1996): see for example Article 13 “Right to social and medical assistance”.

Even if the text of the European Convention of Human Rights does not expressly mention the right to health care nor the right to medical assistance, the Court has clearly indicated that, in certain cases, the State can have an obligation to provide appropriate medical assistance so as not to risk violation of Article 2 of the Convention (Right to life) or Article 3 (Prohibition of torture).

In its decision Cyprus v. Turkey of 10 May 2001, para. 219, the Court indicates that:

“The Court observes that an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally. It notes in this connection that Article 2 para. 1 of the Conven- tion enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdic- tion (see the L.C.B. v. the United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1403, para. 36).”

In its decision Ilhan v. Turkey of 27 June 2000, para 76:

“The Court observes that these three cases1 concerned the positive obligation on the State to protect the life of the individual from third parties or from the risk of illness under the first sentence of Article 2 para. 1.”

1. Note from the Secretariat: These are Osman v. the United Kingdom (decision of 28 October 1998), Yas¸ a v. Turkey (decision of 2 September 1998) and L.C.B. v. the United Kingdom (decision of 9 June 1998).

The Court reiterated its position in its decision Berktay v. Turkey of 1 March 2001, para. 154.

In its decision on admissibility in Nitecki v. Poland of 21 March 2002 (Appl. No. 65653/01), the Court recalled that:

“The Court recalls that the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under Article 2 (see Powell v. the United Kingdom [decision], no. 45305/99, 4.5.2000).

The Court has held in cases involving allegations of medical malpractice that the State’s positive obligations under Article 2 to protect life include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obli- gation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners con- cerned (see, among other authorities, Erikson v. Italy, [decision], no. 37900/97,

26.10.1999; Calvelli and Ciglio v. Italy [GC], no. 32967/96, para. 49, ECHR 2002).

Furthermore, with respect to the scope of the State’s positive obligations in the provi- sion of health care, the Court has stated that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally (see Cyprus v. Turkey [GC], no. 25781/94, para. 219, ECHR

2001-IV).”

The European Commission of Human Rights recognised that, in certain specific circum- stances, States had a positive obligation drawn from Article 3 of the Convention, to provide im- mediate medical care. In this regard, see, as concerns a detained person, in the case Hurtado v. Switzerland, the report of the Commission in which it considered, unanimously, that the appli- cant had suffered violation of Article 3 by not having received immediate medical care. This case was concluded by a friendly settlement (judgment dated 28 January 1994 striking out the case). Also see the case McGlinchey v. the United Kingdom of 29 April 2003, paragraph 46:

“Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, paras. 64 et seq., and Kud a v. Poland [GC], no. 30210/96, para. 94, ECHR

2000-XI).”

1 to promote or provide services which, by using methods of social work, would con- tribute to the welfare and development of both individuals and groups in the commu- nity, and to their adjustment to the social environment;

2 to encourage the participation of individuals and voluntary or other organisations in the establishment and maintenance of such services.”

Finally, Paragraph 14 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34), states that:

“Victims should receive the necessary material, medical, psychological and social as- sistance through governmental, voluntary, community-based and indigenous means.”

IV. Investigation and prosecution

1. Where there have been victims of terrorist acts, States must launch an effective official investigation into those acts.

The Court recognises that there should be an official investigation when individuals have been killed as a result of the use of force and that this obligation is not confined to cases where it has been established that the killing was caused by an agent of the State:

Ulku Ekinci v. Turkey, 16 July 2002, para. 144:

“The Court recalls that, according to its case-law, the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 to

‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective offi- cial investigation when individuals have been killed as a result of the use of force. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. Nor is it decisive whether members of the deceased’s family or others have lodged a formal complaint about the killing with the competent investigation authority. The mere fact that the authorities were informed of the killing of the applicant’s husband gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (cf. Tanrikulu v. Turkey [GC], no. 23763/94, paras. 101 and 103, ECHR

1999-IV). The nature and degree of scrutiny which satisfies the minimum threshold of an investigation’s effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical real- ities of investigation work (cf. Velikova v. Bulgaria, no. 41488/98, para. 80, ECHR

2000-VI).”

Tepe v. Turkey, 9 May 2003, para. 195:

“Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and including effective access for the com- plainant to the investigation procedure (see Kaya, cited above, pp. 330-31, para. 107).”

Moreover, the Court recognises that the investigation must be led with promptness and reasonable expedition:

Finucane v. the United Kingdom, 1 July 2003, para. 71:

“70. A requirement of promptness and reasonable expedition is implicit in this context (see Ya a v. Turkey, judgment of 2 September 1998, Reports 1998-IV, pp. 2439-2440, paras. 102-104; Cakici v. Turkey [GC], no. 23657/94, ECHR 1999-IV, paras. 80, 87 and 106; Tanrikulu v. Turkey, cited above, para. 109; Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III, paras. 106-107). While there may be obsta- cles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may gener- ally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan v. the United Kingdom, cited above, paras. 108,

136, 140).”

2. In this framework, special attention must be paid to victims without it being nec- essary for them to have made a formal complaint.

The Court recognises that the close family of a deceased victim must be involved in the investigation to the extent necessary to safeguard his or her legitimate interests, failing which this investigation could not be considered “effective”:

Slimani v. France, 27 July 2004, paras. 32 and 47:

[The text of this judgment is available in French only]

“32. (…) Dans le même type d’affaires, la Cour a souligné qu’il doit y avoir un élément suffisant de contrôle public de l’enquête ou de ses résultats pour garantir que les responsables aient à rendre des comptes, tant en pratique qu’en théorie. Elle a précisé que, si le degré de contrôle public requis peut varier d’une affaire à l’autre, les proches de la victime doivent, dans tous les cas, être associés à la procédure dans la mesure nécessaire à la sauvegarde de leurs intérêts légitimes (voir, notamment, l’arrêt Hugh Jordan c/ Royaume-Uni du 4 mai 2001, no 24746/94, par. 109 et les arrêts, préci- tés, McKerr, par. 115 et Edwards, par. 73) ; elle estime qu’il doit en aller ainsi dès lors- qu’une personne décède entre les mains d’autorités.”

“47. Il n’en reste pas moins que, comme la Cour l’a précédemment souligné, dans tous les cas où un détenu décède dans des conditions suspectes, l’article 2 met à la charge des autorités l’obligation de conduire d’office, dès que l’affaire est portée à leur attention, une « enquête officielle et effective » de nature à permettre d’établir les causes de la mort et d’identifier les éventuels responsables de celle-ci et d’aboutir à leur punition : les autorités ne sauraient laisser aux proches du défunt l’initiative de déposer une plainte formelle ou d’assumer la responsabilité d’une procédure d’en- quête. Or à cela il faut ajouter qu’une telle enquête ne saurait être qualifiée d’« effec- tive » que si, notamment, les proches de la victime sont impliqués dans la procédure de manière propre à permettre la sauvegarde de leurs intérêts légitimes (paragraphes 29-

32 ci-dessus).

Selon la Cour, exiger que les proches du défunt déposent une plainte avec constitution de partie civile pour pouvoir être impliqués dans la procédure d’enquête contredirait ces principes. Elle estime que, dès lors qu’elles ont connaissance d’un décès intervenu dans des conditions suspectes, les autorités doivent, d’office, mener une enquête, à la- quelle les proches du défunt doivent, d’office également, être associés.”

McKerr v. the United Kingdom, 4 May 2001, paras. 148 and 159-160:

“148. […] The Court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the proce- dures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events. The Court is not persuaded that the applicant’s interests as next-of-kin were fairly or adequately protected in this respect.”

“159. […] the Court considers that the requirements of Article 2 may nonetheless be satisfied if, while seeking to take into account other legitimate interests such as natio- nal security or the protection of material relevant to other investigations, the various procedures provide for the necessary safeguards in an accessible and effective manner. In the present case, the available procedures have not struck the right balance.

160. The Court would observe that the shortcomings in transparency and effective- ness identified above run counter to the purpose identified by the domestic courts of allaying suspicions and rumour. Proper procedures for ensuring the accountability of agents of the State are indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of lethal force. A lack of such pro- cedures will only add fuel to fears of sinister motivations, as is illustrated, inter alia, by the submissions made by the applicant concerning the alleged shoot-to-kill policy.”

Finally, with regard to the European Union, Article 10, paragraph 1, of the Council Frame- work Decision of 13 June 2002 on combating terrorism specifies that:

“Member States shall ensure that investigation into, or prosecution of, offences covered by this Framework Decision are not dependent on a report or accusation made by a person subjected to the offence, at least if the acts were committed on the territory of the Member State.”

3. In cases where, as a result of an investigation, it is decided not to take action to prosecute a suspected perpetrator of a terrorist act, States should allow victims to ask for this decision to be re-examined by a competent authority.

Moreover, the Court recognises the need for public scrutiny of investigation or their results:

Finucane v. the United Kingdom, 1 July 2003, para. 71:

“71. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v. Turkey, cited above, p. 1733, para. 82; Ogur v. Turkey, cited above, para. 92; Gül v. Turkey, cited above, para. 93; and recent Northern Irish cases, for example, McKerr v. the United Kingdom, cited above, para. 148).”

With regard to a case where the State’s authorities decide not to bring to justice the pre- sumed author of a terrorist act, for example through lack of evidence, Paragraph 7 of Recom- mendation No. R (85) 11 of the Committee of Ministers to member States on the position of the victim in the framework of criminal law and procedure specifies that “the victim should have the right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceedings”.

V. Effective access to the law and to justice

States should provide effective access to the law and to justice for victims of terro- rist acts by providing:

(i) the right of access to competent courts in order to bring a civil action in sup- port of their rights, and

(ii) legal aid in appropriate cases.

The expression “effective access to the law and to justice” has been taken from Recom- mendation No. R (93) 1 of the Committee of Ministers to member States on effective access to the law and to justice for the very poor.

Principles laid down in Recommendation No. R (81) 7 of the Committee of Ministers on measures facilitating access to justice are applicable, mutatis mutandis, to victims of terrorist acts and should be implemented by all member States.

Finally, Paragraph 6 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (A/RES/40/34) adopted on 29 November 1985 by the General Assembly of the United Nations, states that:

“6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceed- ings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.”

VI. Administration of justice

1. States should, in accordance with their national legislation, strive to bring indi- viduals suspected of terrorist acts to justice and obtain a decision from a compe- tent tribunal within a reasonable time.

The Court also recognises that suspects must be judged within a reasonable time. See in particular:

Mutimara v. France, 8 June 2004, paras. 69-74:

In this case, the Court found a breach of the Convention in respect of the length of pro- ceedings concerning the examination of a complaint against a person who allegedly was in- volved in the genocide that took place in Rwanda.

[The text of this judgment is available in French only]

“69. La Cour rappelle que le caractère raisonnable de la durée d’une procédure s’ap- précie eu égard aux critères consacrés par sa jurisprudence, en particulier la com- plexité de l’affaire, le comportement du requérant et celui des autorités compétentes (voir, parmi beaucoup d’autres, Doustaly c/ France, arrêt du 22 avril 1998, Recueil des arrêts et décisions 1998 II, p. 857, par. 39 ; Slimane-Kaïd c/ France (no 3), no 45130/98, par. 38, 6 avril 2004) et suivant les circonstances de la cause, lesquelles

commandent en l’occurrence une évaluation globale (Versini c/ France, arrêt du

10 juillet 2001, no 40096/98, par. 26 ; Slimane-Kaïd, précité).

70. En l’espèce, la Cour constate que la procédure, qui a débuté le 1er août 1995 (plainte avec constitution de partie civile de la requérante) est actuellement toujours pendante devant le juge d’instruction, soit une durée de huit ans et plus de huit mois à ce jour.

71. La Cour estime que l’affaire présentait une certaine complexité, ce dont atteste notamment la délivrance de nombreuses commissions rogatoires internationales. Cependant, cela ne saurait suffire, en soi, à justifier la durée de la procédure.

(…)

74. Compte tenu des circonstances de l’espèce et en dépit de leur particularité, la Cour estime que l’on ne saurait considérer comme « raisonnable » une durée globale de presque neuf ans pour une information pénale au demeurant toujours en cours.”

2. States should ensure that the position of victims of terrorist acts is adequately recognised in criminal proceedings.

The Court recognises that victims should be taken into consideration in criminal proceed- ings, in addition to their right to bring civil proceedings in order to secure at least symbolic repara- tion or to protect a civil right:

Perez v. France, 12 February 2004 (Grand Chamber), paras. 70-72:

“70. The Court […] notes that the Convention does not confer any right, as demanded by the applicant, to ‘private revenge’ or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted inde- pendently: it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a ‘good reputation’ (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p.13, para. 27; Helmers, cited above, p. 14, para. 27; and Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July

1995, Series A no. 316-B, p. 78, para. 58). […]

72. [In addition, the Court notes] the need to safeguard victims’ rights and their proper place in criminal proceedings. Simply because the requirements inherent in the concept of a ‘fair trial’ are not necessarily the same in disputes about civil rights and obligations as they are in cases involving criminal trials, as evidenced by the fact that for civil disputes there are no detailed provisions similar to those in Article 6 paras. 2 and 3 (see Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, para. 32) does not mean that the Court can ignore the plight of victims and downgrade their rights. […] Lastly, the Court draws attention for informa- tion to the text of Recommendations R (83) 7, R (85) 11 and R (87) 21 of the Commit-

tee of Ministers (see paragraphs 26-28 above), which clearly specify the rights which victims may assert in the context of criminal law and procedure.”

As indicated above by the Court, Recommendations Nos. R (83) 7, R (85) 11 and R (87) 21 of the Committee of Ministers recognise a number of rights that victims may claim under criminal law and in criminal proceedings. In particular, paragraph 29 of Recommendation No. R (83) 7 of the Committee of Ministers to member States on participation of the public in crime policy provides that the governments of member States should assist victims by “establish- ing an efficient system of legal aid for victims so that they may have access to justice in all circum- stances”. Furthermore, paragraph 4 of Recommendation No. R (87) 21 of the Committee of Ministers to member States on assistance to victims and the prevention of victimisation states that the governments of member States “ensure that victims and their families, especially those who are most vulnerable, receive in particular […] assistance during the criminal process, with due respect to the defence”.

Article 6 (Specific assistance to the victim) of the Council of the European Union Frame- work Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) specifies: “Each Member State shall ensure that victims have access to advice as referred to in Article 4 (1) (f) (iii), provided free of charge where warranted, concerning their role in the proceedings and, where appropriate, legal aid as referred to in Article 4 (1) (f) (ii), when it is possible for them to have the status of parties to criminal proceedings”.

Paragraph 6 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34) mentions that:

“The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.”

VII. Compensation

1. Victims of terrorist acts should receive fair, appropriate and timely compensa- tion for the damages which they suffered. When compensation is not available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terrorist acts, the State on the territory of which the terrorist act happened must contribute to the compensation of vic- tims for direct physical or psychological harm, irrespective of their nationality.

Guideline No. XVII of July 2002 (Compensation for victims of terrorist acts) recalls that:

“When compensation is not fully available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terro- rist acts, the State must contribute to the compensation of the victims of attacks that took place on its territory, as far as their person or their health is concerned.”

Resolution 2002/35 of the United Nations Commission on Human Rights entitled

Human rights and terrorism,

“welcomes the report of the Secretary-General (A/56/190), and invites him to continue to seek the views of Member States on the implications of terrorism in all its forms and manifestations for the full enjoyment of all human rights and fundamental freedoms and on how the needs and concerns of victims of terrorism might be addressed, including through the possible establishment of a voluntary fund for the victims of terrorism, as well as on ways and means to rehabilitate the victims of terro- rism and to reintegrate them into society, with a view to incorporating his findings in his reports to the Commission and the General Assembly”.

Moreover, in its resolution 1566(2004) adopted at its 5053rd meeting on 8 October

2004, the United Nations Security Council:

“10. Requests further the working group, established under paragraph 9 to consider the possibility of establishing an international fund to compensate victims of terrorist acts and their families, which might be financed through voluntary contributions, which could consist in part of assets seized from terrorist organizations, their members and sponsors, and submit its recommendations to the Council”.

Finally, with regard to compensation, it is useful to recall Article 75 of the Statute of the In- ternational Criminal Court:

Article 75: Reparations to victims

“1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional cir- cumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

2. The Court may make an order directly against a convicted person specifying appro- priate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.

3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.

5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.

6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.”

2. Compensation should be easily accessible to victims, irrespective of nationality.

4. Apart from the payment of pecuniary compensation, States are encouraged to consider, depending on the circumstances, taking other measures to mitigate the negative effects of the terrorist act suffered by the victims.

Paragraph 11 of the European Union Council Directive 2004/80/CE of 29 April 2004 re- lating to compensation to crime victims states that:

“A system of cooperation between authorities of the Member States should be intro- duced to facilitate access to compensation in cases where the crime was committed in

a Member State other than that of the victim’s residence”.

VIII. Protection of the private and family life of victims

of terrorist acts

1. States should take appropriate steps to avoid as far as possible undermining res- pect for the private and family life of victims of terrorist acts, in particular when

carrying out investigations or providing assistance after the terrorist act as well as within the framework of proceedings initiated by victims.

Paragraph 8 of Recommendation No. R (85) 11 of the Committee of Ministers to member States on the position of the victim in the framework of criminal law and procedure specifies that “at all stages of the procedure, the victim should be questioned in a manner which gives due consideration to his personal situation, his rights and his dignity”.

Paragraph 9 of Recommendation No. R (87) 21 of the Committee of Ministers to member States on assistance to victims and the prevention of victimisation calls on the govern- ments of member States to “take steps to prevent victim assistance services from disclosing per- sonal information regarding victims, without their consent, to third parties”.

In the context of the United Nations, paragraph 6 (d) of the Declaration of Basic Princi- ples of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly (A/RES/40/34) states that:

“The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: […]

2. States should, where appropriate, in full compliance with the principle of free- dom of expression, encourage the media and journalists to adopt self-regulatory measures in order to ensure the protection of the private and family life of victims of terrorist acts in the framework of their information activities.

3. States must ensure that victims of terrorist acts have an effective remedy where they raise an arguable claim that their right to respect for their private and family life has been violated.

Recommendation No. (97) 19 of the Committee of Ministers to member States on the portrayal of violence in the electronic media and Recommendation No. (99) 5 on the protection of privacy on the Internet should be mentioned in this context.

IX. Protection of the dignity

and security of victims of terrorist acts

1. At all stages of the proceedings, victims of terrorist acts should be treated in a manner which gives due consideration to their personal situation, their rights and their dignity.

The first paragraph is partly inspired by paragraph 8 of Recommendation No. R (85) 11 of the Committee of Ministers to member States on the position of the victim in the framework of criminal law and procedure which specifies that “at all stages of the procedure, the victim should

be questioned in a manner which gives due consideration to his personal situation, his rights and his dignity”.

2. States must ensure the protection and security of victims of terrorist acts and should take measures, where appropriate, to protect their identity, in particular where they intervene as witnesses.

Paragraph 6 (d) of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34) states that:

“The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: […]

X. Information for victims of terrorist acts

The Court recognises that, in certain circumstances, a family member of a “disappeared person” may suffer inhuman treatment, within the meaning of Article 3 of the Convention, if the State authorities remain silent despite attempts to obtain information about the disappeared person.

Cyprus v. Turkey, 10 May 2001, paras. 156-157:

“156. […] The Court recalls that the question whether a family member of a ‘disap- peared person’ is a victim of treatment contrary to Article 3 will depend on the exis- tence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevita- bly caused to relatives of a victim of a serious human-rights violation. Relevant ele- ments will include […] the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. […]

157. […] For the Court, the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attains a level of sever-

ity which can only be categorised as inhuman treatment within the meaning of

Article 3.”

(i) set up appropriate information contact points for the victims, concerning in par- ticular their rights, the existence of victim support bodies, and the possibility of obtaining assistance, practical and legal advice as well as redress or compensation;

Paragraph 2 of Recommendation No. R (85) 11 of the Committee of Ministers to member States on the position of the victim in the framework of criminal law and procedure states that “the police should inform the victim about the possibilities of obtaining assistance, practical and legal advice, compensation from the offender and State compensation”.

Paragraph 4 of Recommendation No. R (87) 21 of the Committee of Ministers to member States on assistance to victims and the prevention of victimisation provides that the gov- ernments of member States “ensure that victims and their families, especially those who are most vulnerable, receive in particular […] information on the victim’s rights”.

Paragraph 3 of Committee of Ministers Recommendation No. R (85) 11 to member States on the position of the victim in the framework of criminal law and procedure states that “the victim should be able to obtain information on the outcome of the police investigation”.

Paragraph 6 of this same Recommendation adds that “the victim should be informed of the final decision concerning prosecution, unless he indicates that he does not want this information”.

Finally, paragraph 9 of Recommendation No. R (85) 11 to member States on the position of the victim in the framework of criminal law and procedure states that “the victim should be in- formed of: the date and place of a hearing concerning an offence which caused him suffering; his opportunities of obtaining restitution and compensation within the criminal justice process, legal assistance and advice; how he can find out the outcome of the case”.

Article 4 of the Council of the European Union Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) on the “Right to receive infor- mation” specifies in particular that “Member States shall take the necessary measures to ensure that, at least in cases where there might be danger to the victims, when the person prosecuted or sentenced for an offence is released, a decision may be taken to notify the victim if necessary”.

XI. Specific training for persons responsible for assisting victims of terrorist acts

States should encourage specific training for persons responsible for assisting vic- tims of terrorist acts, as well as granting the necessary resources to that effect.

Paragraph 11 of the preamble of the Council of the European Union Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) provides that “suitable and adequate training should be given to persons coming into contact with victims, as this is essential both for victims and for achieving the purposes of proceedings”. Article 14 of this same framework decision specifies:

Article 14. Training for personnel involved in proceedings or otherwise in contact with victims

“1. Through its public services or by funding victim support organisations, each Member State shall encourage initiatives enabling personnel involved in proceedings or otherwise in contact with victims to receive suitable training with particular refer- ence to the needs of the most vulnerable groups.

2. Paragraph 1 shall apply in particular to police of ficers and legal practitioners.”

Paragraph 16 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985 by the General Assembly of the United Nations (A/RES/40/34) states that: “Police, justice, health, social service and other personnel con- cerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.”.

XII. Increased protection

Nothing in these Guidelines restrains States from adopting more favourable ser- vices and measures than described in these Guidelines.

Terrorism, or the threat of it, is a burden shared by most countries in the world. The Council of Europe believes that an effective fight against terrorism fully respecting human rights is possible.

The Guidelines on human rights and the fight against terrorism affirm states’ obligation to protect everyone against terrorism, and reiterate the need to avoid arbitrariness. They also stress that all measures taken by states to combat terrorism must be lawful, and that torture must be prohibited. The legal frame- work set out in the Guidelines concerns, in particular, the collecting and pro- cessing of personal data, measures which interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and compensa- tion of victims.

The Guidelines on the protection of victims of terrorist acts recognise the suffer- ing endured by the victims and consider that they must be shown national and international solidarity and support. States are encouraged by these Guidelines to provide to victims and, in appropriate circumstances, to their close family, an emergency and continuing assistance. In addition, the Guidelines deal with key issues, such as the need for granting a fair and appropriate compensation to victims, facilitating their access to the law and to justice, as well as protecting their private and family life, their dignity and security.

The Council of Europe has forty-six member states, covering virtually the entire continent of Europe. It seeks to develop common democratic and legal principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. Ever since it was founded in

1949, in the aftermath of the second world war, the Council of Europe has symbolised reconciliation.

Directorate General of Human Rights

Council of Europe

F-67075 Strasbourg Cedex