A/HRC/8/13
page 11
of that latter State. The verification of the legitimacy of evidence obtained as a result of
international police cooperation is certainly not without its procedural and practical difficulties,
and needs to be carefully addressed.
29. Issues regarding information gathering and surveillance are closely linked to the right to
privacy which is protected under article 12 of the Universal Declaration of Human Rights and
article 17 of the ICCPR which protects against the arbitrary or unlawful interference with
privacy, family, home, or correspondence. The Human Rights Committee has elaborated on the
meaning of arbitrary and unlawful interference with one’s privacy, family, home or
correspondence: The term “unlawful” means that no interference can take place except in cases
envisaged by the law. Interference authorized by States can only take place on the basis of law,
which itself must comply with the provisions, aims and objectives of the Covenant. The
expression “arbitrary interference” is also relevant to the protection of the right provided for in
article 17. In the Committee’s view, the expression “arbitrary interference” can also extend to
interference provided for under the law.5
30. There are a number of ways in which Governments, whether inadvertently or not, interfere
with the right to privacy in the context of terrorism. New investigation techniques have been
implemented to fight new threats, such as data mining, DNA tests, collecting fingerprints,
telephone tapping, tracking devices, collection and systematic retention of private information,
closed circuit television (CCTV) schemes, ID verification, monitoring of Internet activity, and
interception of communications. Each of these pose their own challenges.
31. Legal safeguards should be established concerning the supervision of the relevant
authorities granted secret surveillance powers, to ensure that they are in reality as well as in law
subject to adequate control by judicial authorities as well as other oversight bodies. Parliaments
should exercise oversight over security agencies to enforce their accountability, including in
respect of surveillance and data collection, consistent with the values of a democratic society.
3. Prohibition of torture, cruel, inhuman and
degrading treatment or punishment
32. Despite the absolute prohibition of torture, cruel, inhuman and degrading treatment or
punishment, many States continue to engage in these illegal practices in the name of the fight
against terrorism, and often in a systematic and widespread manner. Some States have also
continued to be engaged in the practice of seeking diplomatic assurances to ensure that torture
and other cruel, inhuman or degrading treatment or punishment will not be inflicted on an
individual suspect who is transferred to a receiving State. As I have reiterated on several
occasions, in my view diplomatic assurances per se do not work as they do not provide adequate
protection against torture and ill-treatment, nor do they nullify the obligation of non-refoulement
5
Human Rights Committee, general comment No. 16 (1988), paras 3, 4 and 8. See also Leander
v. Sweden, 26 March 1987, paras. 59 and 60. Malone v. UK, 1984, paras. 67 and 68. Weber and
Saravia v. Germany, 29 June 2006, para. 95. Klass and others v. Germany, 6 September 1978,
paras. 48-50, 55; ECHR, Segerstedt-Wiberg and Others v. Sweden, 6 June 2006, paras. 88, 120
and 121.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents