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Round Table on “Fight Against Terrorism: Challenges For Strasbourg, 15 September 2009 CDL(2009)142 Or. It. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) in co-operation with European University Institute of Fiesole (Italy) in collaboration with the Sub-Committee on Crime Problems and the Fight against Terrorism (of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe). ROUND TABLE ON “FIGHT AGAINST TERRORISM: CHALLENGES FOR THE JUDICIARY” Fiesole (Italy), 18-19 September 2009 (Refettorio Room, European University Institute, Badia Fiesolana, Via dei Roccettini 9 50014 San Domenico di Fiesole; Tel: +39 055 4685 399) REPORT by Mr Guido NEPPI MODONA (Professor, University of Torino, Substitute Member, Italy) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL(2009)142 - 2 - Panel I – The rights of the accused 1. – The relationship between the right of the accused and the role of the judiciary in the fight against terrorism recalls the essential aim of the different forms of defensive democracy: that of protecting national security (and democracy itself) from terror organisations and attacks through democratic means. It is often believed that, in order to fight terrorism, limitations to certain fundamental human rights are allowed. The possibility of restricting or suspending the enjoyment of human rights in situations of emergency may even be provided by the Constitution with the aim of bringing the emergency back into the legal realm. Thus there exist constitutional provisions and laws which allow restricting, for example, personal security, freedom of movement, the right of defence, the principles of a fair trial, of humanity of punishment, of equality before the law. Emergency powers and the suspension or limitation of fundamental rights may in fact endanger the principles of the rule of law: a ‘defensive democracy’ or a ‘fighting democracy’ may indeed affect the features of a democratic regime. Such risks have been the object of careful and painful reflection by a great judge and lawyer, who was himself faced on numerous occasions with the tensions between terrorism, defence of democracy and the role of the judiciary. Aharon Barak, in his capacity as both President of the Supreme Court of Israel and academic, wrote (Democracy, Terror, and the Courts, trad. it. in Giurisprudenza costituzionale, 2002, p. 3384 ss.) that “terrorism poses... especially difficult questions for democracy, since not every effective means can be used... One pillar of democracy – the rule of the people through its elective representatives – may encourage taking all steps effective in fighting terrorism, even if their impact on human rights is harmful. The other pillar of democracy – human rights – may encourage protecting the rights of every individual, including the terrorist, even at the cost of undermining the fight against terrorism... We, judges in modern democracy, have a major role to play in protecting democracy. We should protect it both from terrorism and from the means that the State wants to use to fight terrorism”. In particular, Barak mentioned a famous decision, written by himself, in which the Israel Supreme Court held that torture in interrogation of a suspect terrorist is not permitted, even if using violence may safe human life, by preventing impending terrorist acts (H.C. 5100/94, Public Committee Against Torture in Israel v. Israel): “We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties”. When faced with the need to protect democracy from terrorism, the judiciary must be aware that a State that violates fundamental human rights in times of war and terrorism will also violate them in times of peace and security. It is illusory to think that human rights will be sacrificed only in times of war and that they will automatically re-acquire their strength and inviolability in times of peace. Aharon Barak’s conclusion is that “the struggle against terrorism can never be conducted outside the law, but always within the law, using tools that the law makes available to a democratic State. This is how we distinguish ourselves from the terrorists themselves”. - 3 - CDL(2009)142 2. – On the basis of these premises, let us analyse what areas of criminal justice are especially at risk, that is to say, what fundamental human rights risk being sacrificed most in the fight against terrorism. History teaches that the ‘defensive’ or ‘fighting’ democracy tends to intervene against terrorism with close-to-illegal tools in four areas of criminal law. In substantive criminal law, the democratic legislator is not immune from the temptation to expand the criminal liability to mere expressions of adherence to terrorist ideologies, which conflicts with the principle that only acts may be punished, and not also declarations of thought or intention, attitudes or behaviours. This guarantee is often contained in constitutions and international treaties together with the principles of strict legality and irretroactivity of criminal law, pursuant to which nobody can be punished on the basis of a law which was not in force at the time when the “fact” was committed. Article 7 of the European Convention on Human Rights, for example, links the principle of legality to the commission of a fact or an omission; Article 25 of the Italian constitution to a fact. Both provisions demand that a crime consist in a material behaviour. Particular attention must therefore be devoted to the need to avoid that new anti-terror offences be created in breach of the three fundamental principles of criminal law which represent the pre-condition for the protection of the rights of the accused: 1) any new offence must be introduced by an ordinary law, discussed and approved by parliament through the normal legislative procedure, and not by mere acts of the executive, without parliamentary control; 2) any new offence must address actual facts which it must be possible to ascertain materially and objectively; 3) any new offence must relate to facts which are committed after the entry into force of the new law. It is for the judiciary and the constitutional justice – national and international – to assess whether the legislative responses to terrorist threats comply with the principle of legality, by, if need be, declaring the new offences inadmissible or non applicable, depending on the specific features of the relevant legal order. Obviously the rights of the accused, notably the right of defence, would be totally nullified if the suspected person could be charged on the basis of mere expressions of terrorist ideology or support for terrorism and terrorist criminal acts: no defence is possible if the charge does not relate to facts, actions or behaviours. Associative crimes may be an effective and useful tool to fight terrorism in countries whose legal and cultural tradition accept them: this kind of crimes respects the principle that only facts entail criminal liability in that they presuppose that an actual organisational structure exists, that the means to achieve the aims of the organisation exist and that the role and tasks of the members of the association be defined. The proof of associative crimes would be facilitated if a favourable treatment were foreseen for those accused who decided to collaborate with the judiciary by revealing the names of the accomplices, the programmes and the aims of the criminal organisation. This differential treatment – favours for the terrorists who collaborate and harsh treatment for those who do not - has been very fruitful in several countries (the US, Italy, Germany for example), without affecting the fundamental guarantees of criminal law. 3. – As to the trial, the main temptation for the ‘defensive’ or ‘fighting’ democracy is to sacrifice the personal liberty of the accused, by having recourse immediately to preventive detention and by foreseeing very lengthy maximum terms or even no maximum term of detention prior to the sentence. This violates the presumption of innocence art. 6 § 2 ECHR). Recourse to these exceptional forms of preventive detention are often coupled with the lack of judicial control of the legitimacy of the grounds for detention: with the pretext of emergency and security needs, the accused may remain in the hands of his accusers even for months, without any impartial judicial control (art. 5 § 3 ECHR). CDL(2009)142 - 4 - The massive and indiscriminate recourse to preventive detention represents a serious violation of the right of defence: the accused, even if represented by a lawyer, chosen by him or appointed ex officio, lives in isolation and is not allowed to speak freely with his lawyer, thus remaining for a long time, sometimes months, deprived of legal assistance and of the possibility of organising effectively his own defence. Both indefinite preventive detention and deprivation of defence rights constitute an undue means of pressure on the accused to confess and turn in his possible accomplices. It is obvious that access to a lawyer from the very beginning of the proceedings could facilitate the accused’s collaboration with the judiciary this time in a manner respectful of his fundamental rights; this collaboration as we have seen, is a crucial tool in countering and preventing terrorism. With reference to the trial, terrorist threats often prompt the setting up of extraordinary or specialised judges, either ad hoc or borrowed from the military justice.
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