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The ban on torture vs. the fight against terrorism: the European dispute

September 2006

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Intervention of the FIACAT - European Seminar in Bruges

September 2006


In view of the ever-increasing attempts to legitimise the use of torture in the interest of protecting national security, it is imperative to remember that the ban on torture is total and cannot and shall not give rise to exceptions.

This inviolability was reaffirmed in December 2006 by the United Nations General Assembly in its Torture Resolution, sponsored by 70 States including the United States. The resolution states that “the right to protection from torture or other cruel, inhuman or degrading punishment or treatment is an inviolable right that must be protected in all circumstances, including during a period of armed conflict or international or domestic trouble (and the total ban on torture and other cruel, inhuman or degrading punishment or treatment is set out in the relevant international instruments)”. It was to coincide with the vote on the above resolution that FIACAT launched an urgent European action in which most ACATs participated.

Terrorism is of course a major threat for the whole international community and it is right that States fight against it. But no threat, however serious, can legitimise the use of torture for risk of overstepping the line that separates the security services of a State from the terrorists it is fighting.

How can States calling themselves democratic solemnly reaffirm those principles that have been won and are firmly anchored in our society and at the same time act themselves in a way they abhor?

The United States were the first to go down this route when they sacrificed the public freedoms of their citizens and the rights of “foreigners” in the name of the struggle against terrorism. The Patriot Act, in which 14 of the 16 provisions were made permanent following a vote by Congress on 9 March last, gives exceptional powers to the police, reduces the role of the defence and puts habeas corpus in doubt. It was when discussions about renewing the Patriot Act were being held that FIACAT stated its position in a communiqué entitled “Adieu Démocratie” [Farewell Democracy] condemning the American style fight against terrorism as an attack on the founding principles of democratic society.

The Patriot Act also created the status of “enemy or illegal combatants” thereby permitting the American government to detain indefinitely and without charge anyone presumed to be a terrorist! The Patriot Act authorises the arrest, deportation and placing in solitary confinement of suspects (whilst circumventing the usual court proceedings to permit searches, telephone tapping or checking correspondence and internet contacts).

However, if the United States have cleaved open a principle that we believed we had firmly adopted, other democracies have not wanted to be outdone. As the plethora of anti-terrorist laws demonstrates, security takes the upper hand and human rights suffer as a consequence.

While European countries, that for decades have had to deal with terrorist threats, still tend to take action through the courts, the United States, having been attacked massively for the first time in their homeland, have adopted a military response and unambiguously talk about “the war on terrorism (and not the fight against terrorism)”.

Despite this difference of approach, there is a great deal of alignment here.

- All European anti-terrorism legislation illustrates an extension of periods of detention without outside contact (lawyer or family). Those individuals held in custody and suspected of anti-terrorist activity are henceforth at greater risk of being mistreated.
- Deportation of undesirable individuals.
- Reinforcing police investigative and surveillance powers to the detriment of civic freedoms.

1/ Detention

Examples from Spain, France and Great Britain

The majority of the breaches of the ban against torture and ill treatment (Article 3 of the UDHR ) concern the treatment of detainees. Those people who are deprived of their freedom and who are thus totally in the hands of the authorities are the most vulnerable and therefore more likely to suffer abuses of power by the State. The possibility of breaching Article 3 is present at each stage of the detention process from the moment when the person is taken into custody, generally on arrest or after questioning by a policeman or member of the military, right up to the moment of his release.

So, as the United Nations Human Rights Committee emphasises in Observation no 20, “Protecting the detainee also means ensuring he has swift and regular access to doctors and to lawyers and, under appropriate surveillance should the investigation so require it, to members of his family”.

However, in the plethora of anti-terrorist legislation that has mushroomed in recent times, the tendency on the contrary is to extend custody time limits before any court appearance and delay the attendance of lawyers.

A/ Custody time limits

Spain, in its constitution that was voted in following the country’s return to democracy after the death of General Franco, made provision right from the beginning for the fight against Basque terrorism and thus permits holding an individual in a secret location for up to thirteen days. During this time he cannot communicate with a lawyer or with a doctor of his own choosing. The duty solicitor is not able to speak to him and the investigating magistrate can decide that all or part of his case papers must remain secret.

Suspected terrorists can be held on remand for up to a maximum of four years (two plus two renewable).

The French legal arsenal that was put in place in 1986 (Law of 9 September 1986) has been reinforced following each serious terrorist attack in France (1994-95) or in the world (11 September 2001, March 2004 in Spain, July 2005 in the United Kingdom). The new French anti-terrorist law of 23 January 2006 extended custody time limits once again: to six days (instead of four) before an appearance in front of an investigating magistrate where there is an imminent threat of a terrorist attack.

In Great Britain on 16 December 2004 the Government’s intention of introducing into its anti-terrorist legislation the possibility of indefinitely incarcerating foreign nationals suspected of terrorist offences was thrown out by the Law Lords. In November 2005 the British parliament refused to extend custody time limits to 90 days for terrorism suspects but approved extending the maximum time limit from 14 to 28 days before a person must be formally charged.

B/ Access to a lawyer

The right of any person accused of a crime to be assisted by a lawyer is a fundamental procedural right. The United Nations Human Rights Committee and the European Court of Human Rights have stated that the right to a proper defence, as set out in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, applies to time spent in custody and represents a fundamental guarantee against ill treatment.

In Spain a lawyer can become involved from the moment someone is taken into custody but the principle of free choice of one’s lawyer is not always adhered to because in terrorist cases, only those lawyers who have been approved by the Justice Ministry can be consulted by detainees.

As regards France the Human Rights Committee back in 1997 expressed its concerns about the lack of access to a lawyer during the first 72 hours of custody and recommended at the same time that anti-terrorist laws “be brought fully in line with the conditions of Articles 9 and 14 of the Covenant”. The Committee against Torture again recommended last November that France “take the necessary legislative steps to guarantee immediate access to a lawyer from the commencement of custody, with a view to removing all risk of torture”.

However, in line with the new anti-terrorist law of January 2006, a detainee only has access to a lawyer after 96 hours of custody and then again after 120 hours. These meetings are in addition to that after 72 hours. Thus nothing has really changed! Each meeting may not last longer than 30 minutes and the lawyers do not have access to the file or any case papers before the meetings.

2/ Deportation of undesirable persons to a country where they risk being tortured

Great Britain

The Convention against Torture states very clearly in Article 3 that “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. This principle is also enshrined in Article 33 of the Convention on the Statute of Refugees of 1951. The Human Rights Committee itself interpreted Article 7 of the International Covenant on Civil and Political Rights as obliging “States parties not [to] expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”. The European Court of Human Rights did the same for Article 3 of the UDHR in 1996.

However, within the framework of the fight against terrorism and in order to get round this ban, some governments ask States which are known for their systematic use of torture for diplomatic assurances that theoretically guarantee that the person sent back to that country will not be subjected to torture. This is happening despite that fact that the very need to obtain such diplomatic guarantees in itself indicates a recognition of the risk of torture and ill treatment in the receiving country.

Great Britain has already signed such agreements with Jordan, Libya and Lebanon; further agreements are currently being negotiated with Algeria and Egypt.

3/ Reinforcing police investigative and surveillance powers to the detriment of civic freedoms


The new French law in the fight against terrorism, passed on 23 January 2006, sets out or reinforces a number of provisions:
- developing video surveillance
- passing on the personal details of passengers travelling outside the European Union or arriving from non-EU countries
- installing mobile or fixed number-plate readers and photographing car occupants
- access to internet connection and telephony data stored by electronic communication providers and cyber cafés
- allowing the anti-terrorist services to consult certain administrative files held by the Ministry of the Interior. The new law also increases sanctions for any act linked to terrorist activity.


The different issues outlined above represent tendencies that we all need to monitor in our respective countries. They illustrate a general toughening of national legislations and a consequent weakening of our rights and freedoms.

“What is at stake here is nothing less than that which lies at the heart of a free society. If our nation is to remain attached to the ideals symbolised in its flag, it must not use the weapons of tyrants in order to resist an attack by the forces of tyranny”. The words of Sandra Day O’Connor who was a Judge in the José Padilla affair heard before the United States Supreme Court on 28 June 2004.

Call for ACAT participation

It would be interesting for each ACAT to set out the way in which each country approaches anti-terrorist laws looking at how that may conflict with individual protection. Particular attention should be paid to key issues such as:
- custody/remand time limits
- legal advice: at what point? for how long? in private? does the lawyer have access to the file?
- medical care: at what point? on request?
- possible family visits? communication with the outside world?
- rumours about places of secret detention
- framework of civil liberties outside custody
- deportation
- diplomatic guarantees etc

Once the dossier has been compiled, please send it to FIACAT so a summary of European legislation can be drawn up and analysed in order to prepare a working document which ACATs can subsequently use.

Proposal for coordinated action on a European level each time an ACAT warns FIACAT about changes for the worse domestically, whether this involves a forthcoming vote on yet another piece of anti-terrorist legislation, a forthcoming committal or conditions of detention of a terrorist suspect.

Nathalie Jeannin
September 2006

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