bulletin counter terrorism
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E.H.R.L.R. 2014, 2, 98-115 (Cite as: ) E.H.R.L.R. 2014, 2, 98-115 European Human Rights Law Review 2014 Bulletin: Counter-terrorismand human rights 2014 Sweet & Maxwell and its Contributors Subject: Human rights Keywords: Human rights; Terrorism *98 This bulletin covers the events from September 25, 2013 to January 25, 2014.It is compiled by the International Commission of Jurists, a non-governmental organisation working to advance understanding and respect for the Rule of Law and the protection of human rights throughout the world.The material in the bulletin is drawn from theICJE-Bulletin on Counter-terrorismand human rights in all regions of the world.Subscription to the E-Bulletin is free of charge on theICJwebsite:http://www.icj.org. Compiled by the International Commission of Jurists (ICJ) Europe and Commonwealth of Independent States United Kingdom: New anti-terrorismpowers may breach human rights, says Parliamentary Committee On October 11, the Parliamentary Joint Committee on Human Rights issued a report on the Anti-social Behaviour, Crime and Policing Bill.1The draft legislation, among other measures, modifies the powers to stop, question and search travellers at ports and airports underSch.7 to theTerrorismAct 2000.While the Committee held that the Government "has clearly made out a case for a without suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat fromterrorism",2it found that new powers to be introduced, activated without reasonable suspicion, would be "incompatible with the right to liberty in Article 5 ECHR or the right to respect for private life in Article 8 ECHR".3The powers referred to are those "to detain for up to 6 hours; to access, search, seize, copy and retain all the information on personal electronic devices such as mobile phones, laptops and tablets; and to take and retain fingerprints and DNA samples without consent".4 In the Committee's view, these measures would only be justified if exercised on the basis of reasonable suspicion. United Kingdom: Secret services lobbied against disclosure of surveillance programme On October 25,The Guardianrevealed that the Government Communications
Headquarters (GCHQ) effectively lobbied the Government against a proposal which would make intercept evidence admissible as evidence in judicial proceedings as it feared "a 'damaging public debate' on the scale of its activities because it could lead to legal challenges against its mass-surveillance programmes".5In particular, GCHQ did not want to disclose that telecom firms "had gone well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the United Kingdom and overseas,6 and it feared legal challenges based on theHuman Rights Act.On October 6, former Cabinet Minister Chris Huhne, who sat until 2012 in the National Security Council, declared that he had never been briefed on the existence of the GCHQ mass surveillance programme "Tempora" or on GCHQ's collaboration in the NSA programme "Prism".7On October 13,The Guardianreported that the Law Society was considering issuing guidelines to the legal profession responding to fears that the surveillance programme may endanger lawyer-client confidentiality.8In addition, on September*99 30, three organisations advocating in support of the right to privacy submitted a petition to the European Court of Human Rights alleging a violation of their right to privacy under art.8 of the ECHR caused by the UK surveillance programme.9 United Kingdom: GCHQ infiltrates phone companies computers and allows US surveillance on UK citizens, Snowden documents reveal On November 11, the newspaperDer Spiegelrevealed, on the basis of documents provided by whistleblower and former NSA contractor Edward Snowden, that the UK intelligence agency GCHQ had developed a practice called "Quantum Insert", by which it installs malware spying software on computers of employees in telecommunication companies, including the Belgian phone company "Belgacom", through fake pages on LinkedIn, the popular career social network that has around 260 million users in more than 200 countries.The operation was said to increase the capacity of the GCHQ surveillance programmes.LinkedIn declared that it was not aware of these activities.10On November 20,The Guardianand Channel 4 Newsrevealed, also based on documents provided by Edward Snowden, that in 2007 UK intelligence agencies concluded a secret deal with the US National Security Agency (NSA) which allowed the NSA to examine and retain data collected on UK citizens.It was previously believed that citizens of the "Five Eyes" intelligence partners (United States, United Kingdom, Australia, Canada and New Zealand) had not been targeted under the NSA surveillance programmes.11 United Kingdom: Deprivation of nationality for "terrorism" suspect unlawful, rules Supreme Court On October 9, the Supreme Court ruled that the stripping of the UK citizenship of Hilal Abdul Razzaq Ali Al-Jedda by the Home Secretary in 2007 was unlawful, as it relied on a misinterpretation of theBritish Nationality Act 1981and would have rendered him stateless.The Court rejected the argument of the Home Office that Al-Jedda could have re-applied for his Iraqi citizenship which he had lost automatically once he was granted UK citizenship in 2000.The Supreme Court held that "[f]rom a plain reading of the statute and surrounding guidance, it is clear that the question is simply whether the person holds another nationality at the date of the order" depriving him of British citizenship.12Hilal Abdul Razzaq Ali Al-Jedda was granted UK citizenship in 2000 after having fled Iraq during the regime of Saddam Hussein in 1992. In 2004 he moved to Iraq and was arrested by US forces in October 2004 on suspicion of attacking coalition soldiers and then detained by UK forces for three years.After his release in 2007, he moved to Turkey where he currently lives with his family.The Home Secretary stripped him of his citizenship under suspicion of "terrorist"
activities.13 United Kingdom: Supreme Court upholds "very wide" definition ofterrorism On October 23, the Supreme Court upheld the conviction of Mohammed Gul on five counts of disseminating terrorist publications, for which he was sentenced to five years' imprisonment.The Supreme Court upheld the definition of "terrorism" in theTerrorismAct 2000, which may include armed attacks by non-state armed groups against national or international armed forces in a non-international armed conflict.The Court ruled that "it is difficult to see how the natural, very*100 wide, meaning of the definition can properly be cut down",14as it had been clearly deliberately drafted in wide terms to take into account various forms ofterrorism.The Court also rejected the argument that the definition was contrary to international law, finding an "insuperable obstacle" in the fact that there is no accepted definition ofterrorismin international law. United Kingdom: Foreign Ministry has no legal obligation to block "terrorism" suspect insertion on UN list On October 29, the Court of Appeal dismissed the case brought an Egyptian national, identified as Youssef, against the Secretary of State for Foreign and Commonwealth Affairs (FCO) challenging the positions taken by this Ministry in the context of his insertion on the UN Al-Qaeda Sanctions List.15The FCO had initially blocked his listing when it was requested by another unnamed state in the Al-Qaeda Sanctions Committee, but later in 2005, after internal checks, had lifted its objection.In 2009, after further internal discussions, the FCO had requested that the Committee delete Youssef from the list, but to no avail, as such decisions require unanimity.The Court confirmed that, since the list is a prevention mechanism, the test of reasonable suspicion of association with any of the relevant terrorist groups was a valid standard of proof to assess whether someone should be inserted on the list.Furthermore, the Court held that the decision of the FCO on the insertion on the UN list was not discretionary and was not subject to a proportionality test.On the allegations that the evidence for Youssef's insertion on the UN list was tainted by torture, the Court held that this evidence did not come from the United Kingdom, as the United Kingdom did not make the request for insertion, and that the FCO was under no legal obligation to block an insertion on the list based on the possibility that evidence coming from another requesting country may have been tainted by torture. United Kingdom: High Court rules police breached right to a lawyer in airport detention On November 6, the High Court of Justice ruled that UK police and immigration officers violated the right to counsel of Abdelrazag Elosta, a Saudi citizen, when they held him at Heathrow airport underSch.7 to theTerrorismAct 2000and they refused to wait 45 minutes for the arrival of his lawyer to begin questioning him.Schedule 7 to theTerrorismAct 2000allows law enforcement officers to detain anyone for up to nine hours at border points, including airports, without suspicion ofterrorismactivity, to determine whether they may be "concerned in the commission, preparation or instigation of acts ofterrorism ".16On November 20, the UK Independent Reviewer ofTerrorismLegislation, David Anderson QC, published a new position on these measures before Parliament in which he stated that such border detention should be ordered only when "a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person [involved interrorism] and that detention is
necessary in order to assist in determining whether he is such a person".17 U