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Experts on Fundamental Rights critical of EU response to 11 September

28 March 2012

Updated: 6 May 2003 with the final versions of the report:

Main report (pdf)
Thematic report on freedom and security and responses to terrorist threats (pdf)

The first annual report of the "EU network of independent experts in fundamental rights" (CFR-CDF) has expressed grave concern over anti-terrorism legislation adopted by EU member states in response to 11 September. The network was set-up by the European Commission in September 2002, following a recommendation from the European Parliament. The report offers six main criticisms of EU and member state anti-terrorism legislation (see summary on pages 303-4, link to full-text follows below):

1) Problems regarding the "imprecise" definition in the EU Framework Decision on combatting terrorism of 13 June 2002:

since qualifying an offence as "terrorist" justifies the use of special methods of inquiry that entail major interference in private life, the distinction between "terrorist" offences and other offences must be sufficiently precise to meet the condition of lawfulness to which the legitimacy of this interference is subject. This is not the case when the distinction between two offences is described exclusively by the gravity of their consequences and the objective of the perpetrator.

2) Concern over the European Arrest Warrant (EU Framework Decision of 13 June 2002):

the Court of Justice of the European Communities is not really in a position to impose a uniform interpretation of the framework decision on the European arrest warrant, which accentuates the risk of applying political considerations and the negotiation within the Council to the requirements for fundamental rights.

3) Failure to ensure data protection in regard to cooperation with third states, particularly the United States:

The Member States... must refrain from assisting those third States when it appears that this means an individual risks violation of his/her fundamental rights, including the case of a flagrant denial of justice. This prohibition defines the limits to judicial cooperation that can be envisaged with the United States... Under Article 25 of Directive 95/46/EC, the transfer of personal data to a third country for processing can only take place if the third country in question provides an adequate level of protection. There are doubts at this time about whether the protection offered by the United States is adequate... Similarly, Article 18 of the Europol Convention adopted by Act of Council on 26 July 1995 defines the conditions under which Europol can transmit personal data recorded by its services to third party States or bodies... [This Act] must be interpreted taking into account the general requirements of Article 8 of the Charter of Fundamental Rights of the European Union, as well as Article 8 of the European Convention of Human Rights and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. From the standpoint of these provisions, and particularly Article of 8 § 3 of the Charter of Fundamental Rights, the absence of an independent control authority competent for supervising the transmission of data by Europol and the uses made of this data by the United States authorities is grounds for particular concern.

4. EU Recommendation on the development of "terrorist profiles" of November 2002:

The development of terrorist profiles on basis the characteristics such as nationality, age education, birthplace, psycho-sociological characteristics", or family situation - all these elements appear in the recommendation on developing terrorist profiles - in order to identify terrorists before the execution of terrorist acts and cooperation with the immigration services and the police to prevent or reveal the presence of terrorists on the territory of Member States, presents a major risk of discrimination. The development of these profiles for operational purposes can only be accepted in the presence of a fair, statistically significant demonstration of the relations between these characteristics and the risk of terrorism, a demonstration that has not been made at this time.

5. General failure to protect human rights in the adoption of "emergency legislation":

They result in interference with private life or the secret of communications, due to increased possibilities of using infiltration agents, with the risk of provocation that this entails, in restrictions of the right of the defense (particularly by maintaining the anonymity of witnesses), and in exceptional forms of detention. In the United Kingdom, the adoption of the Anti-terrorism, Crime and Security Act 2001 gave rise to a notification of a derogation addressed to the Secretary General of the Council of Europe on the basis of Article 15 of the European Convention of Human Rights, although it is doubtful that the conditions required for the use of this provision are met, or that the detention that the derogation intends to cover is admissible under the derogation that has been notified... International law on human rights is not opposed to States taking measures to protect against the terrorist threat... [as long as] the consequences for the guarantee of individual freedoms are limited to a strict minimum. In particular, independent control mechanisms must be provided that can counter against possible abuse committed by the Executive or criminal prosecution authorities. In addition, restrictions made to individual freedoms in response to the terrorist threat must be limited to what is absolutely necessary. These restrictions were adopted to cope with an immediate threat, but one that is not necessarily permanent, and as such, they should be temporary character and be assessed regularly under some kind of mechanism. They should be targeted sufficiently precisely and not affect other phenomena or possibly other categories of persons, on the pretext of the terrorist threat. This is also the reason why the offence of terrorism, which can justify the use of search and special measures that constitute restrictions of individual freedoms, must be defined precisely, to avoid a risk of arbitrariness in the use that is made of the measures.

6. The EU "terrorist lists" and freezing of assets of suspected terrorists:

The lot of persons, groups or bodies targeted by Article 4 of the Council common position 2001/91/CFSP of 27 December 2001 on the implementation of special measures in the fight against terrorism - subsequently confirmed by common position 2002/340/CFSP of 2 May 2002 and 2002/940/CFSP of 17 June 2002 - clearly illustrate the risk for the guarantee of the right to effective remedy before a judge, of the absence of any judicial control in the context of Title V of the Treaty of European Union. Independently of the quality of the information on basis of which these persons were identified, it must be observed that these persons, groups or bodies undergo a serious violation of their right to presumption of innocence, and their right to preservation of their reputation. Even if it should appear possible for them to obtain compensation of the damage incurred as a result of these violations, the situation remains unsatisfactory: infringement of fundamental rights must be avoided, insofar as possible, and not simply compensated once been committed.

The annual report on fundamental rights assesses compliance with each of the 50 fundamental rights enshrined in the EU Charter of 2000. "The balance of freedom versus security in the response by the EU and its member states to the terrorist threat" is a special "thematic observation" annexed to the report (pages 259-304).

Final versions of report:

Main report (pdf)
Thematic report on freedom and security and responses to terrorist threats (pdf)

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