EU, the fight against terrorism, and human rights

1. EU, the fight against terrorism, and human rights Professor Martin Scheinin Fundamental rights in the EU – 20 February 2007

2. Human rights concerns in the fight against terrorism • The prohibition against torture and inhuman treatment (EU Charter on FR, arts 4 and 19) • The right to a fair trial (arts 47-49) • The prohibition against arbitrary detention (6) • The right to leave one’s own country and the right to seek asylum (18-19) • The prohibition against discrimination (inter alia, through ’profiling’) (20-21) • Freedom of religion, freedom of expression, freedom of association (10-12) • The right to privacy (7-8)

3. Human rights affected in the fight against terrorism Pr.ag. Torture

4. TEU article 29 • Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia. • That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through: • closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32, • closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit ("Eurojust"), in accordance with the provisions of Articles 31 and 32, • approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).

5. Title VI: Provisions on police and judicial cooperation in criminal matters • Article 31 (e): progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. • Article 34 (2): 2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: • adopt common positions defining the approach of the Union to a particular matter; • adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect; • adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union; • establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council.

6. Council Framework Decision of June 2002 • 1 (1) list of terrorist offences, based on enumerated serious ordinary crimes and a particular (terrorist) aim • 1 (2) respect for fundamental rights • 2 offences relating to a terrorist group do not require the commission of an ordinary crime • 4 requirement of heavier penalties

7. Thematic Comment 2003Network of IE on FR • Definitions of terrorism remain vague despite the Framework Decision • The implementation of the Framework Decision and TEU Title V not subject to the (full) jurisdiction of the European Court of Justice • Caution needed in cooperation with third states in judicial matters where fundamental rights at risk (e.g., USA) • Critical about terrorist profiling • Concern about privacy issues in communication etc

8. Post-Madrid (March 2004) measures • Coordinator for counter-terrorism measures • Solidarity clause against terrorism • Hindering the financing of terrorism • Updated Plan of Action for combating terrorism. Biannual updating. Scoreboard • Statewatch critique: many of the measures have very little to do with terrorism

9. EU counter-terrorism strategy • Adopted on 1 December 2005 by the Justice and Home Affairs Council • Prevent: measures against the underlying causes of terrorism, combating ”radicalisation” • Protect: reduce vulnerability to terrorist attacks and protect the citizens, incl. border control • Pursue: to investigate, unveil and pursue terrorist networks and hinder their financing • Respond: to strengthen the capacity to deal with the consequences of terrorist attacks. Victims.

10. Strategy for combating radic-alisation and recruitement to terrorism (November 2005) • Identifies Al-Qa’ida as the main terrorist threat • Mixes between ”radicalisation” and terrorism • Spotting ”such behavior”: monitoring the Internet and travel to conflict zones; limiting recruitement in prisons and places of worship • Empowering moderate voices by engaging with Muslim organisations, supporting mainstream literature etc • Global level: targeting inequalities, promoting good governance, human rights, democracy, education...

11. Profiling

12. Annex A

13. Data mining: German Rasterfahndung • Data concerning several million people was collected from different sources and combined • Criteria for the search included: male; age 18-40; current or former student; Muslim denomination; link through birth or nationality to one of several specified countries with a predominantly Muslim population • 32,000 persons were identified as potential terrorist ‘sleepers’ and more closely examined • criminal charges for terrorism-related offences: zero!

14. Stops and searches: the UK experience • Between 2001/02 and 2002/03 the number of persons of Asian ethnicity subjected to Terrorism Act 2000 Section 44 searches rose by 302 percent as compared to a rise of 118 percent for white people. • By 2003/04, Asian people were about 3.6 times more likely, and black people about 4.3 times more likely, to be stopped and searched under counter-terrorism legislation than white people. • In 2003/04 the 8.120 stops of pedestrians led to only five arrests in connection with terrorism – a ‘success rate’ of 0.06 percent. • Incidentally, all of those arrested were white.

15. NIE Thematic Comment 4/2006 on ethnic profiling • discretionary powers of the police in ‘stop and search’ proced-ures, and the absence of monitoring of the behaviour of the police as to the effect on members of visible minorities create a sense of impunity within the police, and of powerlessness – but also resentment – among the targeted minorities • the role of law enforcement authorities in the enforcement of immigration rules will justify in many cases stopping persons, for the purpose of checking their identity and administrative situation, on the basis of indicia, in particular ethnicity • proactive policing has been encouraged by the need to combat more effectively the terrorist threat, but has extended beyond counter-terrorism to various forms of organized crime • redefinition of the role of criminal investigations, which leads the police to borrow methods (including profiling methods) from security services, significantly raises the risk of discriminatory practices, i.e. targeting of individuals because of their religion or national origin

16. Some privacy issues • Retention of communications data (telephone and e-mail) for 6-24 months. Directive 2006/24/EC (see, arts 5-6) • Proposals for EU-wide introduction of biometric ID cards • The Prüm Convention of 27 May 2005 • Exchange of biometric etc data (combining databases) • Cooperation in expulsions, transfers etc. • Drafted outside the EU framework by 7 states • European criminal record • Database of persons subject to restrictive measures or criminal proceedings for terrorist offences • Exchange of passenger information with the US • Eurojust agreement with the US on exchange of data

17. Detention and rendition by third states ~ the USA • Issue of ”secret prisons” and ”extraordinary rendition” in/through Europe • PACE: study by Dick Marty • CoE: Secretary-General’s questions • EP: Report by Temporary ad hoc Committe • Related issue: diplomatic assurances and torture • EU – US Extradition Agreement 2003 • Accompanied by amending protocols to existing bilateral extradition treaties with the US • Article 12 on ”transfer” • Pending before national parliaments

18. Article 12 on ”transit” • A Member State may authorize transportation through its territory of a person surrendered to the United States of America by a third State, or by the United States of America to a third State. The United States of America may authorize transportation through its territory of a person surrendered to a Member State by a third State, or by a Member State to a third State. • A request for transit shall be made through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice of the Member State concerned. The facilities of Interpol may also be used to transmit such a request. The request shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be detained in custody during the period of transit. • Authorization is not required when air transportation is used and no landing is scheduled on the territory of the transit State. If an unscheduled landing does occur, the State in which the unschedul-ed landing occurs may require a request for transit pursuant to par-agraph 2. All measures necessary to prevent the person from absc-onding shall be taken until transit is effected, as long as the request for transit is received within 96 hours of the unscheduled landing.

19. Sanctions against listed individuals and entities • EU Court of First Instance (FCI) judgment of 21 September 2005, Yusuf and Al Barakaat International Foundation v. Council and Commission • Hierarchy: jus cogens > UN Charter and measures under it by the Security Council < human rights treaty law • Pending before the European Court of Justice (ECJ) • ECJ C-229/05 P, 18 January 2007, PKK case • Overturned the denial by the CFI of the right to appeal • CFI 12 December 2006, People's Mujahedeen of Iran v. Council • Listing by Council quashed as had been done without providing proper reasons