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UK: ‘Control Orders’ for Terrorism Suspects Violate Rights

Improve Safeguards to Ensure Rights to Liberty and Fair Hearings

(London) - The United Kingdom's system of "control orders" to restrict the day-to-day activities of terrorism suspects should be amended to comply with international human rights standards, Human Rights Watch said in a letter to Parliament released today. Parliament is set to debate the fourth annual renewal of control order powers on March 3, 2009.

"Control orders were adopted as a temporary alternative to the disastrous policy of indefinite detention of foreign terrorism suspects," said Judith Sunderland, senior researcher at Human Rights Watch. "After three years, there is no excuse for keeping in place a flawed system that violates rights."

The Prevention of Terrorism Act of 2005 gives the home secretary the power to impose serious restrictions on fundamental rights - such as freedom of movement, association, and expression, and the right to privacy and family life - on individuals suspected of involvement in terrorism. The restrictions may be imposed for an indefinite period of time on the basis of a low standard of proof and even secret evidence. Although these restrictions fall short of house arrest, UK courts have found in a number of cases that the combination of restrictions - including curfews as long as 18 hours a day, electronic tagging, limitations on visitors to their homes, and prohibitions on using the internet - amounted to unlawful deprivation of liberty under UK law.

Under the Prevention of Terrorism Act, a person subject to a control order is not allowed to know about the evidence discussed in closed hearings or to give directions to the special advocate appointed by the court to defend his interests.

The Law Lords, the highest court in Britain, begins hearings on March 2 for the appeals of three men under control orders who allege that the special advocates procedure denies them a fair hearing under article 6 of the European Convention on Human Rights. One of them, a dual UK/Libyan citizen known only as AF, has been living under a control order for over two-and-a-half years. The entire case against him is contained in secret evidence, and neither he nor his lawyer has ever been given even a summary of the allegations.

The European Court of Human Rights said in a judgment this month against the UK that proceedings with special advocates can only be considered fair when the concerned person is provided sufficient information about the allegations and is able to give meaningful instructions to the advocate. That case, A and Others v. the United Kingdom, concerned the now-abrogated policy of indefinite detention.

"That people have had to go to the courts time and again seeking a fair process underscores the failings of the UK legislation," said Sunderland. "If control orders are to continue, Parliament needs to build in statutory safeguards."

Human Rights Watch called on Parliament to amend the Prevention of Terrorism Act 2005 to introduce the following minimum safeguards:

  • Restrictions should be imposed by a court and only through a process in which credible evidence of their necessity is provided to the court and the person subject to the order;
  • The criminal standard of proof ("beyond a reasonable doubt") should be applied;
  • Persons affected by control orders and their lawyers should have access to sufficient evidence to ensure the right to an effective defense;
  • Systematic and periodic review of the prospects for prosecution of controlees should be a statutory obligation, and the determination of these reviews should be public;
  • Due regard should be given upon the making of a control order (and subsequently upon its review by the courts) to ensure that the cumulative effect of restrictions, including but not limited to the hours of curfew, is not tantamount to deprivation of liberty.

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