Council of Europe Parliamentary Assembly

1. The Parliamentary Assembly reaffirms its conviction that terrorism can and must be fought with means that fully respect human rights and the rule of law, excluding all forms of arbitrariness. Injustice breeds terrorism and undermines the legitimacy of the fight against it.

2. The Assembly is concerned about elements of draft counter-terrorism legislation in the United Kingdom. The proposed law, if enacted, would enable the detention of a terrorist suspect for up to 42 days without charge, with limited judicial review.

3. The Assembly has serious doubts whether all the provisions of the draft legislation are in conformity with the European Convention on Human Rights and the case-law of the European Court of Human Rights. A lack of appropriate procedural safeguards may lead to arbitrariness, resulting in breaches of Articles 5 (right to liberty and security) and 6 (right to a fair trial) of the Convention. The Assembly is particularly concerned that:

3.1. the judge determining the extension of a person’s detention may not be in a position to examine whether there exist reasonable grounds for suspecting that the arrested person has committed an offence;

3.2. legal assistance and representation by a lawyer may be inappropriately restricted or delayed;

3.3. information on the grounds for suspicion of a person having committed an offence may be unduly withheld, even from institutions competent in deciding on continued detention;

3.4. the draft legislation may give rise to arrests without the intention to charge;

3.5. prolonged detention without proper information on the grounds for arrest may constitute inhuman treatment of the person held in these conditions.

4. The Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers in 2002 and which confirm the established case-law of the Strasbourg Court, serve as a model for legislation. In particular, any person arrested or detained for terrorist activities must be told of the reasons for his or her arrest and must be able to challenge the lawfulness of his or her arrest and continued detention at an adversarial hearing.

5. Legislative provisions concerning deprivation of liberty, including the detention of terrorist suspects, must be clear, precise and easy to comprehend. The draft legislation is, however, unduly complicated and not readily understandable.

6. Parliamentary involvement in the extension of pre-charge detention, as proposed, is not appropriate. Hence, from the perspective of the separation of powers, the decision to maintain a person in custody is a judicial function with respect to which a legislative, political body should, as a matter of principle, have no say.

7. In view of the importance of the fight against terrorism whilst respecting human rights and the rule of law, the Assembly resolves, with the assistance of the European Commission for Democracy through Law (“the Venice Commission”), to undertake a thorough study on this subject. The British draft legislation should be examined within the framework of a more general comparative study of anti-terrorism legislation in Council of Europe member states, in order to assess, in particular, the compatibility of such legislation with the European Convention on Human Rights.

¹Assembly debate on 2 October 2008 (35^th Sitting) (see Doc.11725, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr De Vries). Text adopted by the Assembly on 2 October 2008 (35^th Sitting).