A/HRC/43/46/Add.1
and counter extremism, create conditions for ill-conceived, disproportionate and
discriminatory counter-terrorism and counter-extremism measures, which have a
lasting discriminatory and disproportionate impact on a number of individuals,
groups and communities.
59.
In both conception and application, the counter-terrorism and extremism
regimes provide excessive leeway to the authorities to target and silence those who
peacefully question the established order, including various civil society actors, human
rights defenders, trade unionists, journalists, bloggers, and members of marginalized
communities or of communities legitimately exercising their religious freedoms. The
overwhelming focus on extremism has no justification under international law. Its
vagueness disqualifies it from being reconcilable with the principle of legality, while
its impact on fundamental freedoms prevents it from complying with the principle of
proportionality. The overly constrained judicial system contributes to the burden and
impact of accusations of terrorism and extremism and fails to provide sufficient
protection or remedies.
60.
The Special Rapporteur makes the following recommendations:
(a)
The definition of terrorism in the Criminal Code must be reviewed and
narrowed down substantially to comport with best international practice, including
the definition provided by the Special Rapporteur and/or Security Council resolution
1566 (2004), to ensure that its provisions are as narrow as possible. The provisions on
extremism as a criminal offence must be repealed;
(b)
Religious practice must be protected and never be criminalized as
extremism. The recommendations of the Special Rapporteur on freedom of religion or
belief (see A/HRC/28/66/Add.1) should be implemented in full;
(c)
The peaceful exercise of the right to freedom of expression must never be
construed as terrorism or extremism. No one should be criminalized for exercising the
rights to freedom of peaceful assembly and of association. The recommendations of
the Special Rapporteur on the rights to freedom of freedom of peaceful assembly and
of association (see A/HRC/29/25/Add.2) should be implemented in full;
(d)
The right to a fair trial must be protected in all terrorism and extremism
cases. Trials must be open and transparent. The principle of equality of arms must be
fully respected. The accused must have access to independent lawyers, who must be
given sufficient time and resources to prepare the defence. Equal weight must be given
to evidence from both sides, and reliance on government-appointed and securitycleared “experts” must be avoided;
(e)
Persons convicted of terrorism or extremism charges must not face
additional penalties by virtue of prison conditions, access to family, access to
education and exercise regimes. Double punishment penalties for persons convicted of
terrorism and extremism should be ended;
(f)
The effectiveness and accessibility of mechanisms to complain about
torture and ill-treatment in all places of detention must be increased. Investigations
into allegations of torture must be launched ex officio, complaints must be processed
in an effective and timely manner, confidentiality must be guaranteed and
complainants must not be subject to reprisals. Specific measures to address the
physical and psychological impact of torture must be established in the form of
reparation and rehabilitation for victims of torture and ill-treatment;
(g)
Minimum standards of detention in accordance with the Nelson Mandela
Rules must be fully implemented. Additional resources to modernize the detention
centres, commensurate with the level of economic development of the State, should be
considered;
(h)
The security sector should be downsized to adequately reflect the low
level of threat of terrorism faced by the State. Emergency powers in the form of
counter-terrorism operations must be subject to transparency and strict oversight;
and in all cases in which lethal force is used, independent, impartial, effective and
public investigations must be launched to ensure accountability;
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