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«Helena Solà Martín Åbo Akademi University, Institute for Human Rights 2012 TABLE OF CONTENTS PREFACE iii ABBREVIATIONS AND ACRONYMS iv ABSTRACT v ...»

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The Right to Liberty and

the Prohibition of Preventive Detention:

On the Use of Pre-trial Detention of Suspected Terrorists

in the XXI Century within the Framework of

the European Convention on Human Rights

Helena Solà Martín

Åbo Akademi University, Institute for Human Rights










2.1. The Right to Liberty: a “Preferential Freedom” 9

2.2. Updated Review of the ECtHR’s Jurisprudence 11 2.2.1. Lawfulness and prohibition of arbitrariness 11 2.2.2. The grounds that render an arrest or detention lawful 14 2.2.3. Right to be informed of the reasons for the arrest and any charges 17 2.2.4. The obligation to bring individuals in custody promptly before a judge 18 2.2.5. The presumption in favour of release and the conditions and limits for a prolonged detention 21



3.1. The Position of the ECtHR: the Specific Nature of the Investigation and Prosecution of Terrorist-Type Offences 25

3.2. The Derogation from Article 5 pursuing Article 15:

The Appraisal of the Existence of a Public Emergency 26

3.3. Extended and Extrajudicial Detention as a Key Tool to Prevent and Combat Terrorism: Limited or Wide Margin of Appreciation? 29

3.4. The “Reasonable Suspicion” of Having Committed an Offence in Cases Involving Terrorist Suspects 32

3.5. The Indication of the Involvement in Terrorist Activities Does not Suffice as to Fulfil the Requirement of Information Required by Article 5 para. 2 36

3.6. The Elasticity of the Notion of “Promptness” when Assessing the Scope of Time Limitations Annexed to the Obligation of Bringing the Arrested before the Judge 37 i




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This study was originally conceived as a master’s thesis within the framework of the European Master’s Degree in Human Rights and Democratisation (EMA). The bulk of this research and the entire drafting were carried out at the Institute for Human Rights of Åbo Akademi University, Finland, under the supervision of Professor Markku Suksi and co-supervision of Professor Elina Pirjatanniemi and the thesis was successfully defended at the Monastery of San Nicolò-EIUC (Lido di Venezia) in September 2011. Its contents have since been updated as of January 2012.

I can hardly imagine to work in a more conducive place to develop my inquiry than Åbo Akademi University and in particular its Institute for Human Rights. Besides a privileged setting for students and researchers and its excellent research facilities, the staff were always kind and willing to help. Therefore, I am very grateful to them, starting with Markku Suksi, who, not only guided my research in such a suggestive, intelligent and respectful manner that would always lead me to come up with my own ideas but also introduced us, EMA students (Rita, Laura and I), into the lifestyle and beautiful lands of Finland in a very dynamic and comprehensive way. Many thanks also to Elina Pirjatanniemi for her enlightening comments, and to Harriet Nyback, since without her helping hand the outcome of this research would certainly not have been as fruitful.

Moreover, I would like to express my most sincere gratitude to Benet Salellas for introducing me into the problem of criminalising remote harm or the anticipatory prosecution of suspected terrorists and for the crucial primary sources he provided me with, to my parents and my sister for being there with heart-warming and encouraging words and to my friends who cheered me up in long (Finnish) winter days and busy midnight sun “evenings”. Last but not least, I want to thank my bright and knowledgeable brother Andreu for all his support and patience.

Finally, I would like to acknowledge those individuals, whose right to liberty was wrongly interfered with by counter-terrorism dragnets, in particular in the framework of pre-trial detention schemes, who are struggling to obtain justice and reparation.

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ACHPR African Charter on Human and Peoples’ Rights ACHR American Convention on Human Rights ACSA Anti-Terrorism, Crime and Security Act 2001 AI Amnesty International CoE Council of Europe ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights FBI Federal Bureau of Investigation GA United Nations General Assembly HRC United Nations Human Rights Committee

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IACHR Inter-American Court of Human Rights ICCPR International Covenant on Civil and Political Rights LEC Spanish Criminal Procedure Code SIAC Special Immigrations Appeal Commission

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States have traditionally vindicated the need to loosen up standards of detention to face extraordinary circumstances. In the political context dominated by the global War on Terror, there is an ongoing debate among scholars and law-makers about the use of preventive detention as necessary means to prevent further terrorist attacks. The use of arbitrary detention in Guantánamo and the breach of the absolute prohibition of torture have widely raised concerns as regards the interplay between counter-terrorism and human rights. Nevertheless, less striking practices such as an abusive use of pre-trial detention, or obstacles to the right to effectively challenge the lawfulness of the detention, can equally shake the foundations of highly developed constitutional democracies by impairing the right to personal liberty and the presumption of innocence.

In this context, this thesis examines whether detention outside the scope of criminal proceedings is allowed under the European Convention of Human Rights and to what extent the European Court of Human Rights accommodates national security concerns when addressing unlawful curtailments on the right to personal liberty. Subsequently, challenges liable to be addressed in the near future by the European Court of Human Rights are identified by looking at how the Spanish judiciary order and review pre-trial detention of suspected international terrorists.

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1. INTRODUCTION The world post-September 11 is on constant alert over the terrorist threat; few hours after Osama Bin Laden was killed in Pakistan by a United States (US) Army special forces unit, the Secretary of State Hillary Clinton pointed out that “[t]he fight [against terrorism] continues”. 2 Some months before the death of the head of Al-Qaeda, US Secretary of Homeland Security warned that the “threat continues to evolve”. 3 In this atmosphere of fear and anxiety bolstered by powerful political actors worldwide, states place themselves in a situation of permanent security alert with no end in sight. 4 Their main concern is to prevent the perpetration of terrorist attacks. Therefore, all kinds of intelligence, surveillance and security service related measures have been put in place to abort any plausible threat leading to terrorist actions. Some of the policies designed to tackle terrorism have been heatedly criticised for the extent to which have resulted in the curtailment of states’ human rights obligations. Although defended by sectors of the population and influential political actors, realities such as Guantánamo, Abu Ghraib, extraordinary renditions and secret prisons have brought about a public outcry and significantly damaged the pillars of democratic systems.

Besides the mentioned practices, human rights concerns stem from more common measures and institutions that are not necessarily linked to counter-terrorism but are, however, often present in the current framework such as deprivation of liberty on the basis of national security concerns, either within criminal proceedings or when ordered by the executive branch. 5 1 Hamilton, 1787, para. 4.


Hillary Rodham Clinton, ‘Remarks on the Killing of Usama bin Ladin’ (Press statement), 2 May 2011 at:

http://www.state.gov/secretary/rm/2011/05/162339.htm (consulted on 10 May 2011).

3 Washington Post, 9 February 2011 at: http://www.washingtonpost.com/wp-dyn/content/article/2011/ 02/09/AR2011020904896.html (consulted on 11 February 2011).

4 Dyzenhaus, 2005, p. 67, argues that “legal responses after 9/11 are not to a state of emergency, classically conceived. Rather, prompted by the allegation that terrorism is here to stay, these responses seek to deal with the emergency not as a temporary external threat, but as an internal, permanent problem”.

5 Burch, 2009, p. 133.

1 Nowadays, a significant percentage of the prison population in Europe is held in detention pending trial issued by a court order as a precautionary measure while a criminal procedure is ongoing. This measure is foreseen in international human rights treaties as one of the lawful interferences with the right to liberty. Nevertheless, its use constitutes a matter of concern of international human rights bodies such as the UN Special Rapporteur on Human Rights and Counter-Terrorism 6 who has warned about the dangers that its pervasive use entails, 7 mainly because it is considered a subsidiary and exceptional measure (only applicable as last resort in situations where other means cannot ensure the pursued aim of the criminal proceeding), as the European Court of Human Rights (ECtHR) recalls. 8 Although already used before 11 September 2001 in response to national security concerns, especially in countries affected by terrorism, it was in the aftermath of these events that criminal justice systems were adapted in order to face the unprecedented threat. 9 Special statutory provisions were established, definitions of what constitutes “terrorism” have been broadened to encompass international networks and detention practices have changed when terrorist suspects are involved, notwithstanding the fact that pre-trial detention of terrorist suspects within the European and Latin American legal framework is, still, largely regulated by the common provisions of the penal code regarding this institution. 10 Thus, the perception of facing a threat without precedent characterized by the thought that “something worse might be in store” has been driving the responses of the three branches of government to international terrorism. That is illustrated by the fact that even countries with previous experience in tackling terrorist groups operating in their territory have strengthened counter-terrorism measures. Fenwick and Phillipson underline this point by describing the situation in the United Kingdom (UK) where “the counterThe official name is “UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism” (hereinafter, UNSR on Human Rights and CounterTerrorism).

7 Report of the UNSR on Human Rights and Counter-Terrorism, mission to Spain, 16 December 2008, p.

13. More recently, the CoE Commissioner for Human Rights, Thomas Hammarberg, in one of the latest Human Rights Comments issued, appraised as “excessive” the current use of pre-trial detention in Europe (Human Rights Comment, Excessive Use of Pre-Trial Detention runs against Human Rights, 18 August 2011, posted at: http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=169, [consulted on 15 September 2011]).

See Demirel v Turkey, no. 39324/98, 28 January 2003 (Demirel v Turkey), para. 57 and Vrenčev v Serbia, 8 no. 2361/05, 23 September 2008, para. 59.

9 See A. and others v UK, no. 3455/05, 19 February 2009 (A. and others v UK), para. 10.

10 Burch Elias, 2009, p. 130.

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In Spain, the rate of detainees held in pre-trial detention amounted to 19 per cent out of a prison population of 63.403 inmates (11.874 preventive regime, 50.737 convicted) in December 2010 and “terrorism-related activities” was the type of offences with a highest rate of individuals detained pending trial vis-à-vis people already convicted for the same category of crimes. 12 Moreover, the numbers show that whereas there are a large number of arrests for offences linked to terrorism, the number of convictions is very small. 13 Noteworthy is the fact that similar scenarios are also found in other European countries including France or the UK. 14 These numbers suggest that pre-trial detention 15 for terrorism suspects might not be an exception in Europe as foreseen by the system built upon the European Convention on Human Rights 16 (ECHR), but a rather common practice, or a “culture” that has come to being after the 9/11 attacks in order to stop future terrorists, 17 which could constitute an impairment of the presumption of innocence and the right to liberty of the victims who suffer an irreparable damage with lasting consequences. 18 Moreover, noteworthy is the fact that added difficulties emanate to challenge the detention (and the following trial) since files of the investigation, namely determinant evidences, may be sealed for state security reasons and, hence, the chances for a defence in equality of arms may be at stake.

In this context, questions regarding compliance of the current use of pre-trial detention of suspected terrorists with international human rights standards come to light. To what 11 Fenwick & Phillipson, 2005, p. 459; by the same token, in Germany there is the impression that while the terrorist attacks of the 1970s were the work of a limited number of individuals, the new attacks are committed by members of a worldwide network of Islamic terrorists which can cause a devastating number of casualties and, hence, the threat has been elevated (Boyne, 2003, p. 113).

12 See statistics from Spanish Penitentiary Institutions at: http://www.institucionpenitenciaria.es/web/portal/ documentos/estadisticas.html (consulted on 11 February 2011).

13 Salellas Vilar, 2009, p. 89.

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