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        General Assembly
6 August 2008

Original: English

Sixty-third session
Item 67 (c) of the provisional agenda*
Promotion and protection of human rights: human rights situations and reports of special rapporteurs and representatives

Protection of human rights and fundamental freedoms while countering terrorism

Note by the Secretary-General

The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, submitted in accordance with General Assembly resolution 62/159 and Human Rights Council resolution 6/28.


Following the introduction, section II of the present report highlights two key activities of the Special Rapporteur, including a visit in December 2007 to Guantánamo Bay for the purposes of observing military commission hearings and a summary of an official country visit to Spain in May 2008. The main thematic focus of this report is the fundamental right to a fair trial in the specific context of prosecuting terrorist suspects.

Section III of the report provides an overview of the applicable legal framework as reflected in international human rights treaties, treaty and customary international law, and conventions to counter terrorism. Of particular relevance is Human Rights Committee, general comment No. 32 on article 14 of the International Covenant on Civil and Political Rights. The Special Rapporteur also emphasizes that fundamental principles of the right to a fair trial may not be subject to derogation and that any derogation must not circumvent the protection of non-derogable rights.

In section IV of the report, the Special Rapporteur analyses the key role of the judiciary both as a vehicle of legal recourse to ensure that terrorist suspects who are detained pursuant to criminal law provisions or subject to “administrative detention” or detained during the course of participating in hostilities have effective access to the courts. The Special Rapporteur reflects on the key elements of independence and impartiality that are required of a judicial institution in order that justice can be administered in a competent, fair and open manner. In this context, the jurisdiction of military or special courts is discussed. The Special Rapporteur also addresses a key area of concern regarding the broader issue of access to justice regarding the practice of listing and de-listing individuals and groups as terrorist or associated entities by intergovernmental bodies or by a national procedures of a State.

Various aspects of a fair hearing are outlined in section V of the report, which include: the privilege against self-incrimination; evidence obtained in breach of human rights or domestic law will render the trial unfair; the right to equal treatment and equality of arms; the right to disclosure of information and the right to representation; and applicable standards of proof.

Section VI of the report makes a reference to death penalty cases and reflects the concerns of the Special Rapporteur when a trial involving terrorism offences could lead to the imposition of capital punishment. All stages of the proceedings and the consideration of appeals on matters of fact and law must comply with all aspects of a fair trial.

In the concluding section, the Special Rapporteur emphasises a number of basic principles as elements of best practice in securing the right to a fair trial in terrorism cases.

I. Introduction4
II.Activities related to the Special Rapporteur4
III.Right to a fair trial in the fight against terrorism .5
A.The framework of applicable law5
B.The non-derogable and fundamental nature of fair trial rights .7
IV.The judiciary7
A.Effective access to court7
B.Competence, independence and impartiality12
C.Open administration of justice14
V.Aspects of a fair hearing15
A.Privilege against self-incrimination.15
B.Evidence obtained in breach of human rights or domestic law16
C.Equal treatment and equality of arms16
D.Disclosure of information.17
F.Standard of proof19
VI.Death penalty cases20
VII.Conclusions and elements of best practice20

I. Introduction

1. The present report is the fourth submitted to the General Assembly by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, pursuant to Human Rights Council resolution 6/28 and Assembly resolution 62/159. It highlights activities from 1 November 2007 to 31 July 2008, including the visit of the Special Rapporteur to Guantánamo Bay in December 2007 for the purposes of observing the military commission hearings and an official visit to Spain in May 2008. The main thematic focus of this report is the right to a fair trial in the fight against terrorism.

2. In addition to his last report to the General Assembly,1 the Special Rapporteur draws attention to his main report2 and addenda3 considered at the sixth session of the Human Rights Council in December 2007. The main report summarized the activities of the Special Rapporteur in 2007 and focused on the thematic issue of the effects of counter-terrorism measures in relation to economic, social and cultural rights. The addenda contained a communications report and reports on official missions to South Africa, the United States of America and Israel, including a visit to the Occupied Palestinian Territory.

3. Regarding future country visits, the Special Rapporteur accepted with appreciation the official invitation extended by the Government of Tunisia on 5 June 2008. At the time of submission of the present report, the dates of the mission had not been confirmed.


III. Right to a fair trial in the fight against terrorism


A. The framework of applicable law


9. Various elements of the right to a fair trial, as codified in article 14 of the Covenant, are also to be found within customary law norms and other international treaties, including treaties pertaining to international humanitarian law or to countering terrorism. In similar terms to article 14, the right to a fair trial is guaranteed by article 6 of the European Convention on Human Rights, article 8 of the American Convention on Human Rights and, in somewhat lesser detail, article 7 of the African Charter on Human and Peoples’ Rights and article 13 of the Revised Arab Charter on Human Rights. The Rome Statute of the International Criminal Court also includes the basic requirements for a fair trial in the context of international criminal law.13 Equally, common article 3(1)(d) of the Geneva Conventions of 1949 on international humanitarian law prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Similar minimal guarantees that are considered to reflect customary international law14 are to be found in article 75(4) of Additional Protocol I (relating to international armed conflicts) and article 6(2) of Additional Protocol II (relating to non-international armed conflicts). Fair trial guarantees under human rights treaties continue to apply during armed conflict, subject to the rare instances where a State permissibly derogates from the fair trial clauses in the human rights treaties in question.15
13 Article 67(1) of the Rome Statute identifies as basic requirements: the presumption of innocence; privilege against self-incrimination; the right to communicate with legal representatives freely and in confidence; the right to remain silent without such silence being a consideration in the determination of innocence or guilt; the right not to make an unsworn oral or written statement in one’s own defence; and the right not to have imposed upon the accused any reversal of the burden of proof or onus of rebuttal.
14 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116 (Doc. 5 rev. 1 corr) 22 October 2002, paras. 257-259.
15 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion (2004), ICJ Reports 2004, p. 178, 136, para. 106, as to the continued application of international human rights law, including under international conventions, during armed conflict.


IV. The judiciary

A. Effective access to court


1. Access to court by those in detention


19. Of special concern to the Special Rapporteur is the use of “administrative detention” as a counter-terrorism tool against persons on the sole basis of a broadly formulated element of suspicion that a person forms a ‘threat to national security’ or similar expressions that lack the level of precision required by the principle of legality. Much of the information concerning the reasons for such detention is often classified, so that the detainee and his or her lawyer have no access to this information and thereby no effective means of contesting the grounds of the detention.40 This form of administrative detention appears to be at odds with numerous aspects of the right to a fair hearing under article 14 of the Covenant, and of access to an independent and impartial court, especially when there is no possibility for a review of the detention on the basis of substantive grounds.41
40 In Malaysia, for instance, section 73.1.b of the Internal Security Act allows any police officer to arrest without a warrant and detain for up to 60 days any person in respect of whom he has reason to believe that “he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof”. After 60 days, sect. 8 of the Internal Security Act allows the Minister of Internal Security to extend the detention without trial for two years, without submitting any evidence for review by the courts. There is no possibility for a legal remedy on substantive grounds for detainees held under section 8 of the ISA. Written submission of Suara Rakyat Malaysia (SUARAM) to the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights, July 2006.
41 The same concerns pertain to the detention of persons under Military Order 1229 and the Incarceration of Unlawful Combatants Law 2002 in Israel. See A/HRC/6/17/Add.4, paras. 23-26.


V. Aspects of a fair hearing


E. Representation


40. Generally speaking, there must be a reasonable and objective basis for any alterations from the right to choose one’s counsel, capable of being challenged by judicial review. Any delay or exclusion of counsel must not be permanent; must not prejudice the ability of the person to answer the case; and, in the case of a person held in custody, must not create a situation where the detained person is effectively held incommunicado or interrogated without the presence of counsel.89 The Special Rapporteur was concerned, in this regard, by the Criminal Procedures (Non-Resident Detainee Suspected of Security Offence) (Temporary Provision) Law 2006 of Israel which, in combination with accompanying regulations, permits a security suspect to be detained for up to 21 days without access to a lawyer or family visits such that a detainee may be held without contact with the outside world for periods that could amount to weeks at a time.90
89 See Official Records of the General Assembly, Forty-third Session, Supplement No. 40 (A/43/40), annex VII, sect. C, Communication No. 176/1984, Penarrieta et al. v. Bolivia, para. 16; and Dimitry Gridin v. Russian Federation, Communication No. 770/1997, CCPR/C/69/D/770/1997 (2000), para. 8.5.
90 A/HRC/6/17/Add.4, para. 24.



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