A/HRC/22/26
favour of the accused, even if this led to a lengthier or more complex case for the court to
address. It was improper for counsel to be accused of terrorism or fostering terrorism solely
for taking the most active defence stance possible on behalf of a suspect, or for expressing
criticism of inappropriate conduct by the State or its law enforcement authorities. Without
respect for counsel’s role, a credible trial process was difficult to conceive. It was noted that
effective recognition of this principle required corresponding levels of appropriate
remuneration, if necessary through the legal aid services of the State.
43.
Some States have circumvented additional guarantees, such as judicial review of
pretrial detention afforded to persons charged with a crime, by redefining the nature of
detention as “administrative” on the grounds of a perceived future threat by the individual
to national security, including in situations where the individual has been acquitted in a
criminal trial. Participants acknowledged the ready potential for abuse in systems of
preventative and administrative detention, and the ease with which such bases for detention
can be extended to broader categories. While there may be extreme cases where these forms
of detention can be appropriate in very specific circumstances, they need to be clearly
defined in law and subject to judicial review as well as periodic independent review to
ensure that they are ceased in respect of any individual as soon as no longer strictly
necessary. Experience has shown that widespread use of this form of detention can lead to
distrust and loss of confidence in the law enforcement and security forces. Greater efforts
are needed to limit the use of preventive/administrative detention only to highly exceptional
and tightly regulated situations. Participants also highlighted that the right to a fair trial
presupposes a right to a speedy trial if the individual concerned is suspected of a terrorist
crime recognized under international human rights law. Delays in the trial process could
undermine additional guarantees under article 9 (3) of the International Covenant on Civil
and Political Rights afforded to detained persons and increase the risk of potentially
indefinite detention in violation of international human rights law.
Risk of “exceptional measures”
44.
The risk of “exceptional measures” becoming normalized was addressed as an
overarching concern. This includes the adoption of exceptional counter-terrorism
legislation which then becomes permanent, especially where this is not a stand-alone piece
of legislation and instead amends existing criminal laws and procedures intended to operate
in “normal” situations, or the use of special courts to try terrorist and other criminal cases in
circumstances which may not warrant such use. Counter-terrorism measures introduced in
moments of crisis or extreme political stress, and which are intended as short-term
measures, can readily become entrenched with the passage of time and resorted to routinely
by law enforcement authorities. There were also examples where far-reaching counterterrorism tools, designed to address a particular deficit in the counter-terrorism context,
became applied to other areas or used as generalized law enforcement powers.
45.
It was suggested that regular review of the human rights compliance of counter
terror laws and practices is therefore crucial. As far as possible, counter-terrorism law and
practice should be consistent with the principle of normalcy. If any special measures are
adopted, they should also be subject to periodic review to ensure compliance with human
rights and avoid their entrenchment. Discussants stressed the importance of review
mechanisms in order to ensure that both the provisions and actual implementation of
counter-terrorism laws are specific, necessary, effective and proportionate. 17
17
14
See Report of the Special Rapporteur (A/HRC/16/51) (see note 4 above), para. 20: “Regular review
and the use of sunset clauses are best practices helping to ensure that special powers relating to the
countering of terrorism are effective and continue to be required, and to help avoid the
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