Terrorism

The Court's Press Service has compiled Factsheets by theme on the Court’s case-law and pending cases.

These factsheets are available on the Court's website (www.echr.coe.int/ECHR/EN/Header/Press/Information+sheets/Factsheets)

We summarized some of them for our readers and recommend to visit the Court's website on these topics.

Article 15 of the Convention (derogation in time of an emergency) enables a State to unilaterally derogate from some of its obligations to the European Convention on Human Rights in certain exceptional circumstances and has been used by certain member States in the context of terrorism.

Article 15 makes it clear that some measures are not permissible whatever the emergency. For example, Article 3 (prohibition of inhuman and degrading treatment or torture) is an absolute non-derogable right.

Ill-treatment

1. From August 1971 until December 1975 the UK authorities exercised a series of “extrajudicial” powers of arrest, detention and internment in Northern Ireland. The case concerned the Irish Government’s complaint about the scope and implementation of those measures and in particular the practice of psychological interrogation techniques (wall standing, hooding, subjection to noise and deprivation of sleep, food and drink) during the preventive detention of those detained in connection with acts of terrorism.

The European Court of Human Rights found the methods to have caused intense physical and mental suffering : violation of Article 3 but no violation of Article 5 or Article 14.

E.C.H.R., 18.01.1978, Ireland v. the United Kingdom

2. Applicant complained that his detention in 1992 on suspicion of aiding and abetting PKK terrorists was unlawful and that he had been tortured (“Palestinian hanging" ie stripped naked, with arms tied together behind back, and suspended by arms) : the European Court of Human Rights found violations of Article 3, Article 5 and Article 13

E.C.H.R., 18.12.1996, Aksoy v. Turkey

3. The European Court of Human Rights found that the Spanish authorities had failed to carry out an effective official investigation into the applicants’ allegations that they were ill-treated in police custody when arrested in the summer of 1992, shortly before the Olympic Games in Barcelona, in connection with an investigation into terrorist offences : violation of Article 3

E.C.H.R., 02.11.2004, Martinez Sala v. Spain

4. The case concerned the conditions of the transfer to Turkey and subsequent detention of Abdullah Öcalan who was sentenced to death for activities aimed at bringing about the secession of part of Turkish territory :
the European Court of Human Rights found violation of Article 3 as the death penalty had been imposed following an unfair trial, of Article 5 §4 and Article 5 §3, of Article 6 §1 and Article 6 §1 in conjunction with Article 6 §3(b) and (c)

E.C.H.R., 12.05.2005, Öcalan v. Turkey

5. Better known as “Carlos the Jackal” and viewed during the 1970s as the most dangerous terrorist in the world, the applicant complained about his solitary confinement for eight years following his conviction for terrorist-related offences : the European Court of Human Rights found a violation of Article 13 on account of the lack of a remedy in French law that would have allowed the applicant to contest the decision to prolong his detention in solitary confinement.

E.C.H.R., 04.07.2006, Ramirez Sanchez v. France

6. A former member of the extreme left armed movement “Action directe”, convicted in 1995 to 30 years’ imprisonment complained about strip searches in prison : the European Court of Human Rights found violations of Article 3, Article 8, Article 13 and Article 6 §1.

E.C.H.R., 12.6.2007, Frérot v. France

Extradition / deportation of (suspected) terrorists

Where there is a real risk of ill-treatment in another state, the obligation not to send an individual to that state is an absolute one; it cannot be claimed that public interest reasons for deporting or extraditing an individual outweigh the risk of ill-treatment on the individual’s return, regardless of the offence or conduct

1. The European Court of Human Rights held that the applicant, an advocate of the Sikh separatist cause who was served with a deportation order on grounds of national security, faced a real risk of ill-treatment if he were to be deported to India: violation of Article 3 if the deportation order to India were to be enforced.

E.C.H.R., 15.11.1996 Chahal v. the United Kingdom

2. The European Court of Human Rights found a violation of Article 3 if the decision to extradite Mr Gelogayev to Russia – on the ground that he was a terrorist rebel who had taken part in the conflict in Chechnya – were to be enforced.

E.C.H.R., 12.04.2005, Shamayev and Others v. Georgia and Russia

3. The European Court of Human Rights found a violation of Article 3 if the applicant were to be deported to Tunisia, where he claimed to have been sentenced in his absence in 2005 to 20 years’ imprisonment for membership of a terrorist organisation.

E.C.H.R., 28.02.2008 Saadi v. Italy

4. The applicant, an Algerian national, was arrested and convicted in France in the context of an operation to dismantle a radical Islamist group affiliated to al-Qaeda and suspected of having prepared a suicide attack on the United States Embassy in Paris : the European Court of Human Rights found a violation of Article 3 if the applicant were to be deported to Algeria

E.C.H.R., 03.12.2009, Daoudi v. France

Reasonable suspicion

Article 5 does not permit the detention of an individual for questioning merely as part of an intelligence gathering exercise (there must be an intention, in principle at least, to bring charges.

1. Applicants were arrested in Northern Ireland by a constable exercising a statutory power (since abolished) allowing him to arrest for up to 72 hours anyone he suspected of being a terrorist. The European Court of Human Rights concluded that the evidence provided was insufficient to establish that there had been an objectively determined ‘reasonable suspicion’ for the arrests : violation of Article 5 §1.

E.C.H.R., 30.08.1990, Fox, Campbell and Hartley v. the UK

2. Concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 to stop and search individuals without reasonable suspicion of wrongdoing : the European Court of Human Rights found a violation of Article 8.

E.C.H.R., 12.01.2010, Gillan and Quinton v. the UK

Right to be brought promptly before a judge or ‘other officer’ after arrest

An arrested person is to be brought ‘promptly’ before a judge or other office, the ‘clock’ beginning to tick at the point of arrest

Four applicants suspected of terrorism were arrested by the police in Northern Ireland and, after being questioned for periods ranging from four days and six hours to over six days, were released without being charged or brought before a magistrate. The European Court of Human Rights held that the requirement of ‘promptness’ could not be stretched to a delay of four days and six hours or more : violation of Article 5 §3.

E.C.H.R., 29.11.1988, Brogan and others v. the UK

Indefinite detention

Complaints about detention in high security conditions under a statutory scheme which permitted the indefinite detention of non-nationals certified by the Secretary of State as suspected of involvement in terrorism.

The European Court of Human Rights found that the applicants’ detention had not reached the high threshold of inhuman and degrading treatment for which a violation of Article 3 could be found but held that there had been a violation of Article 5 §1 - since the applicants (except for the Moroccan and French applicants who had elected to leave the UK) had not been detained with a view to deportation and since, as the House of Lords had found, the derogating measures which permitted their indefinite detention on suspicion of terrorism had discriminated unjustifiably between nationals and non-nationals; violations also found of Article 5 §§ 4 and 5.

E.C.H.R., 19.2.2009, A. and Others v. the United Kingdom

Restriction on defence rights

1. Concerned applicants’ right to remain silent and their right not to incriminate themselves following their arrest on suspicion of serious terrorist offences : the European Court of Human Rights found a violation of Article 6.

E.C.H.R., 21.12.2000, Heaney and McGuinness v. Ireland

2. The applicant, a minor at the time, was arrested on suspicion of participating in an illegal demonstration in support of the imprisoned leader of the PKK and accused of hanging an illegal banner from a bridge. He was subsequently convicted of aiding and abetting the PKK.

The case concerned restriction on applicant’s right of access to a lawyer while in police custody for an offence falling under the jurisdiction of the state security courts, regardless of age : the European Court of Human Rights found a violation of Article 6 §3(c) in conjunction with Article 6 §1.

E.C.H.R., 27.11.2008, Salduz v. Turkey

Victims of terrorism

States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist act.

The applicant complained in particular under Article 8 and Article 1 of Protocol N°1 that the Turkish authorities had refused to allow him to return to his home and land after he was evicted from his village in late 1994 on account of terrorist activities in the region.

The case concerned question of the effectiveness of the remedy before the commission set up under the Law on Compensation for Losses resulting from Terrorism.

The European Court of Human Rights found that the Law provided adequate redress, and the applicant was now unquestionably free to return to his village. Some 1,500 cases concerning the possibility of returning to villages were thus declared inadmissible by the Court in the light of this decision).

E.C.H.R., 12.01.2006, Içyer v. Turkey

Use of force by the State in self-defence or defence of another

All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.

Article 2 §2 justifies the use of force in self-defence only if it is ‘absolutely necessary’

Three members of the Provisional IRA, suspected of having on them a remote control device to be used to explode a bomb, were shot dead on the street by SAS soldiers in Gibraltar. The European Court of Human Rights found a violation of Article 2 because the operation could have been planned and controlled without the need to kill the suspects.

E.C.H.R., 27.09.1995, McCann and Others v. the UK

Dissolution of political parties

Concerned dissolution of the United Communist Party of Turkey (“the TBKP”) and banning of its leaders from holding similar office in any other political party. The European Court of Human Rights held that the dissolution had not been “necessary in a democratic society”, finding in particular that there was no evidence that the TBKP had been responsible for terrorism problems in Turkey : violation of Article 11.

E.C.H.R., 30.01.1998, United Communist Party of Turkey and Others v. Turkey

Freedom of expression

1. A case concerned the ban on the circulation of a book on the Basque culture.

The European Court of Human Rights found that there was nothing in the book’s content suggesting incitement to violence or separatism and held that the interference with applicant’s freedom of expression had not been ‘necessary in a democratic society’ : violation of Article 10.

E.C.H.R., 17.7.2001, Association Ekin v. France

2. A case concerned the applicants’ complaint about their criminal conviction under the Prevention of Terrorism Act for publishing press articles designating State agents as targets for terrorist organisations : the European Court of Human Rights found a violation of Article 10.

E.C.H.R., 19.12.2006, Falakaoglu and Saygili v. Turkey

3. A case concerned the applicants’ complaints about the suspension of the publication and dissemination of their newspapers, considered propaganda in favour of a terrorist organisation : the European Court of Human Rights found a violation of Article 10.

E.C.H.R., 20.10.2009, Ürper and Others v. Turkey