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Fair trials under threat, as counter-terrorism policies restrict defence rights

admin - June 13, 2018 - counter-terrorism


This post is part of the "Security and Human Rights" series, where we highlight violations of and threats to human rights and justice posed by counter-terrorism and anti-extremism measures.

The series is implemented by the civil society Working Group on Counter-Terrorism, Anti-Extremism and Human Rights, a part of the Civic Solidarity Platform (CSP), which brings together non-governmental organisations in Europe, Eurasia and the US.


There is no doubt about the threat posed by terrorism. In response, new counter-terrorism laws and policies are being adopted in response to heated public debate throughout Europe. At Fair Trials we have been observing some worrying threats to justice in the name of security. The European network of fair trial defenders, the Legal Experts Advisory Panel (LEAP), that we coordinate, are reporting three main ways in which counter-terrorism policies are impacting defence rights in Europe. We look forward to developing these issues in future posts.

1: Overbroad definitions of terrorism

Counter-terrorism policies are ushering in overbroad definitions of terrorism-related activities, which are being applied to acts that we would not normally associate with terrorism. Indeed, these overbroad definitions are resulting in unjustified threats to freedom of expression.

  • In Spain, for instance, the crime of "glorification of terrorism" has been used to prosecute and convict people for tweeting about inactive terrorist organisations (for instance, ETA), even in the absence of any intention to cause harm and in the absence of any danger deriving from the tweets.
  • In the UK, the draft Government Bill on Counter-Terrorism and Border Security (2018) similarly criminalises online activities, such as seeking information and expressing opinions, regardless of the intention to harm.
  • In Lithuania, the criminalisation of online searches on how to conduct a terrorist attack led to police questioning a PhD student who was researching terrorism-related issues.

A new EU Directive on Counter-terrorism requires EU countries to criminalise "glorification of terrorism". If implementing laws are not narrowly framed and applied, there is a real risk that the EU Directive will result in increased criminalisation of free speech.

2: Special procedures, less safeguards

Counter-terrorism legislation often provides for special procedures that restrict fair trial rights. These can threaten the fairness of terrorism prosecutions; when surely it is these most serious crimes which require the greatest diligence. What’s more these special rules all too often trickle down into ordinary criminal justice.

One such “innovation” is the use of special procedures which allow witnesses’ identities to be kept confidential. It is easy to appreciate why people speaking out against organised criminal groups might feel threatened. Such practices also make it hard or impossible to challenge the reliability of evidence.

Such procedures were for example introduced in Greece in counter-terrorism legislation in 2001 and were originally meant to protect witnesses in exceptional circumstances. They have been progressively extended to criminal cases unrelated to terrorism activities. Due to the widespread use of this procedure, defence lawyers have warned that the defendant's right to examine witnesses is being disproportionately restricted.

3: Beyond criminal justice

Counter-terrorism policies are increasingly relying on mechanisms which depart from ordinary criminal law, including administrative and immigration law.

In the UK, for instance, Terrorism Prevention and Investigation Measures (TPIMs) are non-criminal measures which are used to restrict rights and freedoms of people who are suspected of being involved in terrorism-related activities.

In France, the national counter-terrorism regime heavily relies on administrative justice and measures. French administrative courts can apply a wide range of measures which restrict people's freedom of movement and right to liberty, including revoking passports and ID cards, imposing travel bans, and placing people in house arrest. Their decisions are often based on so-called notes blanches, which are anonymous documents provided by the security and intelligence services; they are undated, unsigned and do not provide any information as to the source.

The misuse of counter-terrorism legislation is greatly impacting cross-border criminal justice mechanisms, including INTERPOL, whose Red Notices have been abused to label dissidents as terrorists and get hold of them abroad. At Fair Trials, we have long been documenting such cases of abuse against journalists, human rights defenders, and refugees.

In one case from 2016, for instance, a Turkish citizen was arrested in Bulgaria, where he had sought asylum, in response to a Red Notice issued by Ankara against him on charges of terrorism and money laundering. Despite two Sofia courts refused extradition finding that Turkey had failed to present any evidence and that the charges were likely politically motivated, the Bulgarian authorities dismissed his claim to asylum on administrative grounds and later transferred him in secret to their Turkish counterparts.


The Working Group on Counter-Terrorism, Anti-Extremism and Human Rights is jointly coordinated by Fair Trials and the Moscow-based SOVA Center for Information and Analysis. Other members of the Working Group include: Albanian Helsinki Committee, ARTICLE 19, DRA, Human Rights First, Netherlands Helsinki Committee, and Serbian Helsinki Committee.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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