Counterterrorism Measures and Human
Rights

Common
EU Asylum and Migration Policy

Human
Rights Concerns in EU Member States

France

Germany

Greece

Italy

Malta

The
Netherlands

Poland

Spain

United
Kingdom

 

The process of improving human
rights protections in European Union law stalled in June 2008, a consequence of
the Lisbon Treaty being rejected by referendum in Ireland. The treaty would
make the EU party to the European Convention on Human Rights, and the EU
Charter on Fundamental Rights and Freedoms binding in EU law. At present, EU
institutions are not explicitly bound by the convention, unlike individual EU
member states.

The European Union and leading
member states continue to pursue counterterrorism measures that violate human
rights. National security removals despite the risk of ill-treatment on return,
inadequate safeguards in detention, and curbs on freedom of expression and the
right to privacy, are among the key concerns.

Migration and asylum policies remain
focused on keeping irregular migrants, including children, out of the EU and
removing those who are present rather than ensuring their rights are protected.
Racist and xenophobic incidents and policies, particularly affecting the Roma
and Sinti, Jewish, and Muslim populations, as well as migrants, were an issue
in a number of EU states.

Counterterrorism
Measures and Human Rights

The EU Council approved in April an amendment to the EU
Framework Decision on Combating Terrorism, introducing new offenses of
provocation (intended to give effect to provisions in the Council of Europe
Convention on the Prevention of Terrorism), and terrorist recruitment and training,
including when committed over the internet. The provocation offense gives rise
to concern about criminalization of speech with little connection to terrorism.
In September the European Parliament recommended narrowing the amendment, so
that only speech intended to directly incite specific terrorism offenses is
criminalized.

The lack of safeguards in the EU's implementation of United
Nations financial measures against terrorism was highlighted in September, when
the European Court of Justice ruled in the case of Kadi that the
inability of non-EU nationals whose assets are frozen to effectively challenge
the decision violates the right to a fair hearing. This reversed the finding of
the EU's Court of First Instance that the binding nature of the measures imposed
by the UN Security Council, outweighed human rights obligations.

European Union member states continued to seek the expulsion
of terrorism suspects, including through the use of diplomatic assurances, to a
risk of torture or other prohibited ill-treatment on return, despite opposition
from the courts, human rights bodies, and NGOs. In February 2008 the European
Court of Human Rights unanimously reaffirmed the absolute prohibition on return
to torture or other prohibited ill-treatment in its judgment in Saadi v.
Italy
, which concerned Italy's attempted expulsion of a terrorism suspect
to Tunisia, with the use of assurances. It rejected a submission by the United
Kingdom government to allow risk of ill-treatment on return to be balanced
against a threat to national security. It also rejected the notion that
diplomatic assurances necessarily constitute a guarantee against torture.

Earlier allegations in Parliamentary Assembly of the Council
of Europe (PACE) and European Parliament reports of CIA renditions programs
having used secret detention centers in Poland and Romania were finally being
addressed in Poland, but Romania has taken no significant steps. In August, at
the request of Polish Prime Minister Donald Tusk, the public prosecutor
initiated an investigation into the allegations. Critics are concerned that the
scope and powers of the investigation will not be sufficient to address serious
allegations of torture and other human rights abuses.

Common EU Asylum and Migration Policy

A
"European Pact on Immigration," adopted by the European Council in
October, was the centerpiece of the migration focus under France's EU
Presidency in the latter half of 2008. The non-binding pact foresees stricter
controls on family reunification for migrants and calls on EU states to pursue
expulsion, paying migrants to return home, and readmission agreements with
countries of origin, to remove irregular migrants. The pact raises concerns
about its potential impact on the right to family life and the prohibition on return
to a risk of persecution or ill-treatment.

The
continued focus of EU migration policy on border enforcement rather than human
rights protection was reflected in the €30 million increase to the 2008 budget
for the EU border control agency, Frontex. At this writing, the Frontex
operation "Hera" during 2008 has "deterred" or
"diverted" back to West Africa 4,373 undocumented migrants heading to
the Canary Islands.

In
June the European Parliament adopted the controversial Council Directive on
common standards and procedures in Member States for returning illegally
staying third-country nationals, known as the Returns Directive. The measure,
which will come into effect in 2010, permits the detention of undocumented
migrants and failed asylum seekers, including unaccompanied children, for up to
18 months and allows for a five-year ban on reentry. In October 2008 the UN
High Commissioner for Human Rights criticized the detention periods in the
directive as excessive and an erosion of the right to liberty for migrants.

Human
Rights Concerns in EU Member States

France

Reviews by the UN Human Rights
Council in May under Universal Periodic Review and the Human Rights Committee
in July identified serious human rights concerns with France's counterterrorism
law and policy. The Human Rights Committee called on France to end the practice
of denying terrorism suspects in police custody access to a lawyer for 72 hours
after arrest and not informing them of their right to remain silent.

The lack of an automatically suspensive
appeal against expulsion in cases involving national security was identified as
a particular problem; since it can result in the removal of suspects at risk of
torture or ill-treatment before any appeal is determined (a similar concern
applies in asylum cases subject to expedited procedures). In April the European
Court of Human Rights ordered France to suspend the national security
deportation of Kamel Daoudi to Algeria, highlighting the need for an effective
in-country procedure.

In a welcome development, France
ratified the Optional Protocol to the UN Convention against Torture in July,
following the appointment in June of France's first Inspector General of Places
of Detention (fulfilling a protocol obligation).

A law adopted in February allows certain
former violent offenders to be detained for renewable one-year periods of
preventive detention after they have served their prison sentence. This
undermines the presumption of innocence, the right to liberty, and the right
not to be punished twice for the same crime.

In June France's top administrative
court, the Conseil d'Etat, denied citizenship to a Moroccan Muslim woman
married to a French man on the grounds that her "radical" religious
practices (including wearing the niqab) were incompatible with French values,
in particular that of gender equality.

Germany

The German Constitutional Court gave important rulings in
February and March that laws relating to surveillance and the storing of internet
and telephone data disproportionately restrict the right to privacy. Changes to
the law governing Germany's federal criminal police operations adopted by the
Bundestag (lower house) in November would allow investigators to use intrusive
surveillance techniques on terrorism suspects based on generalized suspicion;
the changes are pending before the Bundesrat (upper house) at this writing.
Employment-based restrictions continue on teachers and other civil servants
wearing the headscarf, despite concerns that the measures discriminate on the
grounds of religion, with courts in three states upholding headscarf bans for
teachers since December 2007.

The European Centre for Constitutional Rights, an NGO, filed
a lawsuit against the German government at the Berlin Administrative Court in
June for its failure to formally request the extradition of 13 CIA agents who
had been charged in Germany for involvement in the kidnapping of Khaled
el-Masri, a German citizen of Lebanese descent apprehended in Macedonia and
flown to Afghanistan, where he was imprisoned for five months and tortured.

 

An attempt by Germany to extradite to Turkey Hassan Atmaca,
a refugee suspected of links to the Kurdistan Workers Party, using diplomatic
assurances, is subject to a pending appeal to the European Court of Human
Rights. Challenges in German courts to deportation proceedings against two
Tunisian national security suspects using assurances are pending at this
writing.

Following an August review of Germany, the United Nations Committee
on the Elimination of Racial Discrimination noted an increase in reported
racism-related incidents against members of the Jewish, Muslim, and Roma and
Sinti communities, as well as German nationals of foreign origin and asylum
seekers (in particular Africans), and called for "more resolute
action" to prevent and punish the perpetrators. Germany is due to be
reviewed under the Universal Periodic Review mechanism of the UN Human Rights
Council in February 2009.

Greece

In April the UN High Commissioner for Refugees (UNHCR)
leveled sharp criticism at Greek asylum and detention policies and recommended
that other European states not return asylum seekers to Greece, a blow to EU
rules that asylum claims should generally be heard in the first EU country entered,
and that reception conditions and asylum procedures must meet common standards.
UNHCR said that asylum seekers in Greece "often lack the most basic
entitlements, such as interpreters and legal aid, to ensure that their claims
receive adequate scrutiny from the asylum authorities." Greece recognized
only 1.2 percent of asylum claims at first instance in 2007.

Greek police systematically arrest migrants on Greek
territory, including a large proportion of Iraqis, detain them for days without
providing legally required registration, and in some cases beat or otherwise
ill-treat them. Migrants are regularly forcibly and secretly expelled to Turkey
without consideration of their protection needs.

Around 1,000 unaccompanied children entered Greece in 2008,
the majority from Afghanistan. There were numerous examples of such children
being beaten and kicked by Greek coastguard, police, and port police officers
upon interception at the border or during arrest and detention. Children are
often detained together with adults. Most fail to seek asylum, lack status, and
are at risk of deportation. Many live outside sponsored care and are exploited
in dangerous working conditions. Unaccompanied girls in particular are at
high-risk of falling into the hands of trafficking networks.

Italy

Silvio Berlusconi was reelected
prime minister in April, gaining a clear majority in both houses of parliament.
His government in July declared a national state of emergency in relation to
undocumented migration. As a result, undocumented status in Italy is now a
crime punishable by up to four years in prison as well as being an aggravating
factor for other crimes, increasing associated prison sentences.

In a memorandum in July, Council of
Europe Commissioner for Human Rights Thomas Hammarberg criticized the rise of
racist and xenophobic incidents in Italy as well as increased discrimination
against Roma and Sinti in government policies.

Against a backdrop of vigilante
incidents, including two attacks in which Roma camps were destroyed by petrol
bombs in May, and public concern about several violent crimes allegedly
perpetrated by Roma individuals, the government declared a state of emergency
for "nomad communities" (code for Roma) in the Campania, Lazio, and
Lombardy regions, giving local authorities special powers including to conduct
censuses and to raid and dismantle Roma camps. In July a lawsuit was filed in
Italy challenging the legality of these measures and the European Parliament
adopted a resolution calling on Italy to stop fingerprinting Roma including
children. The European Commission muted its criticism of the policy following
assurances from the Italian government that it was not collecting ethnic data.

The trial of 26 US citizens and 7
Italian citizens for the abduction in Milan and rendition to Egypt of the
Egyptian cleric Hassan Mustafa Osama Nasr, known as Abu Omar, resumed in March,
amid allegations that the government had acted "disloyally" in
pursuing a claim before the Constitutional Court that the Milan prosecutors'
office violated state secrecy laws in the conduct of the investigation. In
October the court agreed to hear arguments on the state secrets claims in a
closed hearing scheduled for March 2009. Also in October the Court of Cassation
confirmed the conviction of Rabei Osman for links to the March 2004 Madrid
train bombings.

Despite the ruling in Saadi v.
Italy
, Italy expelled Essid Sami Ben Khemais to Tunisia in June, in breach
of interim measures issued by the European Court of Human Rights requesting that
Italy suspend the expulsion until the court had considered the case. This drew
criticism from Commissioner Hammarberg. The Italian authorities justified the
expulsion on the grounds that they had obtained diplomatic assurances from the
Tunisian government guaranteeing that Ben Khemais would not be tortured and
would receive a fair trial. At this writing, the case is pending before the
European Court of Human Rights.

Migrants continue to die attempting
to reach Italy by sea in unseaworthy boats. The trials of seven Tunisian
fishermen for abetting illegal immigration after they rescued 44 migrants and
brought them to safety on Lampedusa, an island off Sicily, were ongoing at this
writing. There are fears that such prosecutions risk discouraging rescues at
sea and exacerbate the dangers for migrants attempting the crossing.

Malta

Malta continued to be criticized for its failure to rescue
migrants in distress at sea and unwillingness to allow ships carrying migrants
rescued at sea to enter its ports. More than a thousand migrants reached Malta
in 2008. In August, 71 migrants drowned in the Mediterranean Sea when their
dinghy capsized; eight survivors were rescued by a fishing vessel. The Maltese
government has been calling for "burden sharing" among EU states on
irregular migration.

Migrants, including children, who come to Malta are held in
closed detention centers for up to 18 months while their claims are processed.
Detention facilities for migrants in Malta were criticized in a PACE report in
May. An investigation ordered by the Maltese government into allegations of
ill-treatment against detainees involved in a disturbance in the Safi detention
center in March concluded that there had been excessive use of force by staff,
but failed to identify those responsible.

The Netherlands

A bill on
administrative measures for national security aimed at preventing acts of
terrorism passed the House of Representatives in March 2007 and is pending
before the Senate at this writing. It contains provisions severely limiting the
freedom of movement and right to privacy of persons suspected of being
"connected to" or supporting terrorist activities. The bill has been
criticized by rights groups for its lack of clear definitions and the absence
of judicial supervision over such measures.

In January
2008 the Hague Appeals Court refused to characterize the militant Hofstad
network as a "terrorist group" when it cleared seven men, including
Mohammed Bouyeri, the murderer of Dutch filmmaker Theo Van Gogh, of the charge
of belonging to a terrorist group. In October the Amsterdam Appeals Court
upheld the conviction of Samir Azzouz and four others on terrorism charges.

 

The
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment of Punishment in a February report expressed concern about the
placement of terrorism suspects in special high-security "terrorist
departments" in prisons, the conditions of which it considered so strict
as to amount to de facto isolation.

There were
successful court challenges to discriminatory law and policies restricting the
ability of legal residents to bring family members into the Netherlands from
non-Western countries. In July Amsterdam's district court ruled that it is
unlawful to require migrants from certain countries wishing to join relatives
in the Netherlands to pass an integration test demonstrating knowledge of Dutch
language and society before being allowed into the country, although it did not
determine whether the policy violates human rights law. The test, which
disproportionately affects Moroccan and Turkish Muslim migrants, has been
criticized by Dutch MPs and NGOs. Earlier the same month, a court in Roermond
overturned a related law requiring residents wishing to bring a non-Dutch
spouse to the Netherlands to earn at least 120 percent of the minimum wage. The
Ministry of Justice is appealing both rulings, and policies are the subject of
an ongoing government review.

Poland

Government expressions of homophobia remain a problem. In
March, in a nationally televised speech, President Lech Kaczynski threatened to
block ratification of the Lisbon Treaty, claiming that the EU Charter on
Fundamental Rights and Freedoms would force Poland to legally recognize
same-sex relationships.

Reproductive rights remain extremely limited, with lack of
sex education and limited access to contraceptives. Access to safe and legal
abortion is severely restricted by law, which criminalizes abortion in most
circumstances. The law also protects a doctor's right to refuse to provide
abortion services for reasons of "conscience." As a result, there is
a high incidence of illegal and generally unsafe abortions, jeopardizing
women's health and lives.

Spain

Following the reelection of Jose
Luis Rodriguez Zapatero as prime minister in March, the Spanish cabinet
contained equal numbers of men and women for the first time, including a female
minister of defense.

 

In September the Supreme Court

overturned the convictions of four of the 21 people found guilty in 2007 in
relation to the Madrid train bombings of 2004. It also convicted one Spanish
man who had previously been acquitted of providing the explosives for the
attack. In October the same court acquitted 14 of 20 men convicted in February
for plotting a bomb attack on the Audiencia Nacional, Spain's counterterrorism
court.

In addition to ongoing cases
involving international terrorism, there were a number of attacks by the Basque
separatist group ETA and arrests of alleged ETA members throughout 2008, as
well as ongoing prosecutions of individuals and groups allegedly connected to
ETA.

In May the UN special rapporteur on
the protection and promotion of human rights while countering terrorism, Martin
Scheinin, issued a series of recommendations to the Spanish government,
highlighting the need for the "complete eradication" of incommunicado
detention and for a review of overly-broad terrorism offenses. These concerns
were echoed by the Human Rights Committee in its Concluding Observations in October.

Scheinin also criticized the use of
diplomatic assurances in an extradition case to Russia. In February the
Audiencia Nacional had approved the extradition of Chechen Murat Ajmedovich
Gasaev on the basis of diplomatic assurances from Russia that he would be treated
humanely. At this writing Gasaev is still in detention pending a decision from
the Council of Ministers on whether to go ahead with the extradition.

In May an Audiencia Nacional judge
ordered the government to provide detailed information about stopovers of US
military planes in Spain on their way to or from Guantanamo Bay between 2002
and 2007. The Ministry of Defense responded in September that US military
flights to Guantanamo had passed through Spain but asserted that none carried
passengers or cargo that could be "controversial." The judge
requested further information.

An unrelated request by a different
judge in the same court for the transfer of Jamil El-Banna and Omar Deghayes
from the UK to stand trial in Spain for terrorism offenses following their
release from Guantanamo was dropped in March.

There continued to be a marked drop
in arrivals by sea of irregular migrants-down 8 percent in the first eight
months of 2008 compared to the same period in 2007 and down 64 percent since
2006, according to Spain's Interior Mministry. In September-October 2008,
however, Spanish authorities intercepted two boats off the Canary Islands
containing a total of 329 irregular migrants, including children.

The Spanish Ombudsman confirmed
reports of ill-treatment and criticized inadequate care facilities for
unaccompanied migrant children in the Canary Islands. The Spanish government
continued to push for the return of unaccompanied children to Senegal and
Morocco without adequate safeguards. More than two dozen court decisions
blocked children's repatriations because the repatriation decisions did not
comply with Spanish or international law.

United Kingdom

Serious human rights concerns about
the UK's counterterrorism law and practice were raised by international bodies
during 2008, including the UN Human Rights Committee, the UN Human Rights
Council under its Universal Periodic Review, and the Council of Europe.

Following a crushing defeat in the
House of Lords, the government withdrew from a draft counterterrorism bill
measures extending pre-charge detention for terrorism suspects from 28 to 42
days. It also removed a proposal to allow inquests in secret on national
security grounds. The government has said that it may reintroduce both
proposals, widely criticized as incompatible with human rights law, in future
bills. At this writing, the bill includes the power to impose blanket lifelong
notification requirements for individuals convicted of terrorism offenses in
the UK or abroad, breach of which would be a criminal offense.

The Court of Appeal overturned a
number of convictions for terrorism offenses. In February it quashed a 2007
conviction of five students under section 57 of the Terrorism Act 2000 for
downloading and sharing material considered to be terrorism-related. The court
ruled that the offense requires proof of intent that the material is for a
terrorist purpose. In July the court reversed the November 2007 conviction of
Samina Malik under section 58 of the Terrorism Act 2000 for possession of information
useful to terrorists. The ruling followed a separate February 2008 Court of
Appeal decision that section 58 does not apply to mere propaganda.

In May a staff member and a graduate
student at Nottingham University, Hicham Yezza and Rizwaan Sabir, were arrested
for possessing a document ("the Al Qaida Manual") freely available on
the internet. They were detained for six days before being released without
charge. The case raises concerns about the impact of terrorism legislation on
academic freedom.

In September the inquest opened into
the killing of Jean Charles de Menezes, an innocent man, by police officers
during a counterterrorism operation in July 2005.

UK courts continued to block
attempts to deport terrorism suspects on the basis of diplomatic assurances. In
April 2008 the Court of Appeal ruled that Omar Othman, (known as Abu Qatada)
could not be deported to Jordan, on the grounds that torture evidence would be
used against him at trial. He was subsequently released on bail from a high-security
prison on strict security conditions including a 22-hour curfew. In October the
Law Lords considered the appeal court's ruling in Othman, and a second
appeal about removals to Algeria using assurances. It has yet to deliver a
judgment in either case at this writing.

The Court of Appeal blocked the
deportation of two Libyans to Libya in April, ruling that a memorandum of
understanding with Libya was unreliable, and finding that the men would face a
"complete" denial of fair trial if they were returned. The UK
government is not appealing the ruling on Libya.

The use of the British Indian Ocean
territory of Diego Garcia as part of the US renditions program was confirmed.
In February CIA Director Michael Hayden admitted that the US had used Diego
Garcia twice to refuel aircraft taking terrorism suspects to Guantanamo Bay and
Morocco in 2002. The UK government maintains that it had not given consent for
or been informed of this use of Diego Garcia.

In August 2008 the High Court ruled
that the Foreign and Commonwealth Office should in principle disclose material
in its possession that would assist the lawyers of Binyam Mohamed, a former UK
resident facing trial before a military commission at Guantanamo Bay, in
demonstrating that confessions used in evidence against him had been extracted
through torture and were therefore inadmissible at trial. At this writing, a
further hearing to consider national security arguments against disclosure has
been adjourned pending the outcome of US proceedings in which the US government
has been directed to hand over the materials. In October the home secretary
asked the attorney general to investigate possible criminal wrongdoing by the
UK Security Service and the CIA in Mohamed's treatment.

During a review by the UN Committee
for the Rights of the Child in September, the UK government announced that it
would withdraw its reservation to the Convention on the Rights of the Child in
immigration cases. The committee welcomed the announcement but expressed regret
that the best interests of the child are not given primary consideration in the
areas of juvenile justice, immigration, freedom of movement, and peaceful
assembly.