Union to Terrorism
2. Regulations of the Council of Europe
2.2. Human Rights Standards as Limiting Factors in Combating Terrorism The activities of the CE bodies show a particular concern about the
legal measures intended for international cooperation in combating ter-rorism and national counter-terrorism legislation observing the principles of democracy and human rights standards.5 This commitment ensues from the axiological assumptions that see terrorism as a threat to the fundamen-tal rights of the individual, which calls for a commensurate response from the international community and individual states. Therefore, in many of the CE’s documents, effective action for the protection of the society is regarded as the state authorities’ obligation.6
It is simultaneously accom-4 Cf. Wilkinson, P. Terrorism, p. 292.
5 Cf. Bellelli, R. „The Council of Europe,” in: International Cooperation in Counter-terrorism:
The United Nations and Regional Organizations in the Fight Against Terrorism, Nesi, G., ed., Ashgate 2006, p. 141, Perrini, F. “Il tentativo del Consiglio d’Europa di tutelare i diritti umani nell’ambito della cooperazione giudiziaria nella lotta al terrorismo,” in: Cooperazione giudiziaria in materia penale e diritti dell’uomo, Zanghì, C., Panella, L., eds., Torino 2002, pp. 109-115.
6 The Committ ee of Ministers, in the Guidelines on Human Rights and the fi ght against ter- The Committee of Ministers, in the Guidelines on Human Rights and the fight against ter- rorism, adopted on 11 July 2002, pointed to „the obligation to take the measures needed to pro-tect the fundamental rights of everyone... especially the right to life.” (Article I); see: Guidelines on Human Rights and the Fight against Terrorism, Adopted by the Committee of Ministers on 11 July 2002
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panied by confidence that there are inviolable values associated with the human being that, no matter the circumstances, restrict the freedom of those holding power. Consequently, even in the circumstances of acute danger, the fight against terrorism can allow only such methods that re-spect the fundamental rights of individuals and society. What is more, it is a fully acknowledged thesis that even those involved in terrorist acts are not deprived of such guarantees. This is aimed to eliminate the threat of abuse in the form of overly repressive action which, though designed to defend democracy and human rights, in fact, leads to the undermining of those values.7
Hence, the adoption of specific methods of eradicating terrorism re-quires a prior statement of their compliance with international human rights standards, in the first place, with those named in the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950 (hereinafter: the European Convention on Human Rights). The case law of the European Court of Human Rights in Strasbourg is of no small consequence in the assessment of this com-pliance. This body has repeatedly dealt with complaints concerning the allegations of infringement of various rights and freedoms during anti-terrorist operations. According to the ECHR, the suppression of terrorism may under no circumstances justify the violation of fundamental human rights, such as the right to life (Article 2 of the European Convention on Human Rights),8 prohibition of torture or inhuman or degrading treat-ment or punishtreat-ment (Article 3 of the European Convention on Human
at the 80th Meeting of the Ministers’ Deputies, Directorate General of Human Rights, Strasbourg 2002, p. 8. This obligation has been confirmed in the Preamble to the Guidelines on the Protec-tion of Victims of Terrorist Acts (paragraph f); see: “Guidelines of the Committee of Ministers of the Council of Europe on the protection of victims of terrorism acts, adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers’ Deputies,” in: Human Rights and the Fight Against Terrorism. The Council of Europe Guidelines, Strasbourg 2005, p. 41; cf. War-brick, C. “The European Response to Terrorism in an Age of Human Rights,” EJIL 5 (2004), pp.
994-995.
7 Cf. De Salvia, M. „Il terrorismo e la Convenzione Europea dei diritti dell’uomo,” RIDU 1 (1989), p. 22.
8 Cf. judicial decisions in McCann and Others v. The United Kingdom of 27 September 1995, Application no. 18984/91, A324. Under Article 2 of the ECHR, the state was assigned responsi-bility for the so-called disappearances of persons previously detained by state officials in the course of an “anti-terrorist operation” (see judgements in the cases: Khamila Isayeva v. Russia of 15 November 2007, Application no. 6846/02, paras. 120-124, Takhayeva and Others v. Russia of 18 September 2008, Application no. 23286/04, paras. 85-96, Akhmadova and Akhmadov v. Russia of 25 September 2008, Application no. 20755/04 , paras. 72-82).
Regulations of the Council of Europe Rights).9 Even in the direst circumstances and regardless of the behav-iour of a person, the European Convention on Human Rights bans such practices.10 Some guidelines ensuing from the ECHR case law may help fix the precise boundary of securing the right to a fair trial (Article 6(1) of the European Convention on Human Rights)11 and the right to defence (Article 6(3) of the European Convention on Human Rights).12 They also facilitate defining the extent of permissible interference of state bodies in the rights and freedoms of individuals in connection with the deprivation of liberty,13 or the tapping and monitoring of telecommunications links.14
The rules formulated in the ECHR case law designed to sustain the balance between the obligation to protect society against terrorism and the imperative of respect for human rights seem to be permanent and not subject to change. These standards were not challenged even in the after-math of terrorist attacks in New York and Washington, D.C. (11 September
9 The ECHR has recognized the application of the so-called sensory deprivation as inhu- The ECHR has recognized the application of the so-called sensory deprivation as inhu-mane treatment of persons held suspect of terrorist activity. These five investigative techniques included: wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink (the judicial decision in Ireland v. The United Kingdom of 18 January 1978, Application no. 5310/71 paras. 96, 196), cf. the decisions in: Tomasi v. France of 27 August 1992, Application no. 12850/87, paras. 112-115, Aksoy v. Turkey of 18 December 1996, Application no. 21987/93, paras. 62-64, Labita v. Italy of 6 April 2000, Application no. 26772/95, paras. 29, 119-122, Chitayev and Chitayev v. Russia of 18 January 2007, Application no. 59334/00, paras. 148-159).
10 Cf. the judicial decision in: A. and Others v. The United Kingdom of 19 February 2009, Ap-plication no. 3455/05, para. 126.
11 Cf. judicial decisions in: Şener v. Turkey of 18 July 2000, Application no. 26680/95, paras.
56-58, Öcalan v. Turkey of 12 May 2005, Application no. 46221/99, paras. 112-118.
12 Cf. judicial decisions in: Murray v. The United Kingdom of 8 February 1996, Application no. 18731/91, paras. 59-70, Averill v. The United Kingdom of 6 June 2000, Application no. 36408/97, paras. 58-61.
13 Cf. judicial decisions in: Fox, Campbell and Hartley v. The United Kingdom of 30 August 1990, Application no. 12244/86, 12245/86, 12383/86, paras. 32-36, Brogan and Others v. The United Kingdom of 29 November 1988, Application no. 11209/84, 11234/84, 11266/84, 11386/85, Series A no. 145-B, paras. 53, 59-62, Brannigan and McBride v. The United Kingdom of 25 May 1993, Ap-plication no. 14553/89, 14554/89, Series A no. 258-B, paras. 48-65; Murray v. The United Kingdom of 28 October 1994, Application no. 14310/88, paras. 50-63.
14 Cf. judicial decisions in: Klass and Others v. Germay of 6 September 1978, Application no.
5029/71, Series A no. 28, paras. 41-60, Huvig v. France of 24 April 1994, Application no. 11105/84, paras. 25-36, Kopp v. Switzerland of 25 May 1998, Application no. 23224, paras. 50-75, Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria of 28 June 2007, Application no. 62540/00, paras. 69-93.
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2001), and against public transport in Madrid (11 March 2004) and London (7 July 2005).15
Based on the ECHR judgements, there have been attempts recently to elaborate some constraints binding the state as regards the measures to combat terrorism. The standards outlined by the ECHR were collated dur-ing the meetcombat terrorism. The standards outlined by the ECHR were collated dur-ing of the Council of Europe as the Guidelines on Human Rights and the Fight against Terrorism, adopted on 11 July 2002 by the Committee of Ministers. The specific recommendations contained therein, substantiated by the ECHR case law, are preceded by a clause reading 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 subject to appropriate supervision (Article II). Of similar character are the Guidelines on the Protection of Victims of Terrorist Acts, adopted by the Committee of Ministers on 2 March 2005.
2.3. A Comprehensive Strategy for Combating