Using Administrative Powers in Order to Combat Terrorism Brings Down the Democratic Constitutional State

[Mohamed Rafik is a criminal defense attorney in the Netherlands and an active member of the working group on Criminal Law of the Dutch section of the International Commission of Jurists (NJCM). This article was written on behalf of the NJCM in the context of the JUSITICE project, a cooperation of International Commission of Jurists – European Institutions (ICJ-EI), NJCM, Human Rights in Practice, Magistrats Européens pour la Démocratie et les Libertés, Scuola Superiore Sant’Anna di Pisa, Juezas y Jueces para la Democracia and Neue Richtervereinigung.]

Terrorist attacks across Europe, in particular during the last decade, have taken hundreds of lives and caused injuries to hundreds of individuals. Apart from this, terrorism also has huge consequences for the right to life, to move freely, to think freely and speak freely. Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of a government. However, the measures adopted by governments  to  counter terrorism  have  themselves  often  posed  serious  challenges  to  human rights and the rule of law. Governments across Europe have broadly moved from the view that it is the role of governments to provide security so that people can enjoy their rights, to the view that governments must restrict people’s rights in order to provide security.

Expanding legislation
Legislation on counterterrorism has expanded enormously. In 2017 the EU Directive 2017/541 on combating terrorism came into effect, that provides an exhaustive list of serious offences that EU countries must classify as terrorist offences in their national law when they are committed or there is a threat to commit them for a particular terrorist aim. In the Netherlands, however, the terrorist offenses referred to in the Directive were already punishable under national law. Except for the criminalization of glorification of terrorism. That proposal has been on hold for several years.

Especially worrying is that governments are increasingly relying on administrative orders in the context of counter-terrorism. Contrary to criminal law administrative measures do not have procedural safeguards (interpretation and translation, information, access to a lawyer, presumption of innocence and legal aid). Expanding the scope of administrative measures which are implemented in order to widen the net of social control as much as possible eroded the rule of law, enhanced executive powers, peeled away judicial controls, restricted freedom of expression and exposed everyone to government surveillance. If law enforcement officers or other state actors simply believe that a person might, in the future, pose a threat to national security, administrative control measures can be applied.

The scope in the Netherlands is in favor of collective safety, the measures and powers are necessary in view of the threat that international terrorism poses for the democratic societies. Although some threats might require and justify a preventive response by a legislature, the current tendency seems to be that the general fear of terrorism is too easily used as an excuse for more progressive legislation interfering with everyday life of all citizens, and certain groups in particular. The question is whether the measures are necessary, proportionate and effective for combatting terrorism.

In Dutch administrative law there is only marginal, procedural, review by an administrative authority or judge. Our key problem with the administrative bills and acts that are being taken in regard of combating terrorism is that administrative law is used in a punitive way, while established criminal law principles are bypassed, and substantial prior judicial assessment of a judge is lacking.

Dutch Temporary Administrative Measures to Counter Terrorism Act
In the Netherlands applies the Dutch Temporary Administrative Measures to Counter Terrorism Act (Temporary Measures Act), that intends to limit the national security risks posed by individuals or those attempting to join terrorist groups by imposing control orders, including area, contact or travel bans, reporting duty and/or withholding requests for or discontinuing subsidies, licenses or permits of persons deemed at risk of committing (the support of) terrorist activities.

In 2015, the Nederlands Juristen Comité voor de Mensenrechten (NJCM) made his objections on the Temporary Measures Act. According to the NJCM, the law does not comply with the right to privacy and the right to freedom of movement as guaranteed in the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Therefore NJCM made use of the government’s internet consultation on the bill and submitted his comments. The human rights objections that the NJCM had at the time, however, have not been taken away. Moreover, the necessity of the law – in addition to the many criminal and administrative law possibilities that already exist in the field of counterterrorism – have not been demonstrated. Given the fact that the Temporary Measures Act will soon be evaluated, we are writing this article to reiterate our concerns.

One of the measures that can be taken is the administrative order of a travel ban. That ban will automatically lead to revocation of someone’s passport. They do not need to have been charged or previously convicted of terrorist crimes, and there is no prior judicial authorization by a judge. The decision to revocate a passport is made by the Minister of Justice and Security and will also affect minors from 16 years of age. The individual will automatically be declared an unwanted alien and can no longer enter the country, vote or reunite with family members. Because nobody is allowed to become stateless, only people with more than one nationality can lose their citizenship. According to the government this inequality is necessary and legitimate. Due to this administrative order there is a threat to fuel stereotypes that certain people – Muslims, foreigners, dual nationals – are more inclined to be associated with terrorism-related acts. Such associations contribute to discrimination and hostility toward such groups. In 2019 there were six resolutions issued, which still require a decision.

The measures of a travel ban and revocation of someone’s passport, restrict the freedom of movement as referred to in Article 2 of the Fourth Protocol to the ECHR and Article 12 of the ICCPR. The essence of these articles is that whoever resides legally in the territory of a Member State is allowed to move freely within that State and has the right to leave the country. These articles also guarantee the right to leave any country, including your own. With the revocation of a passport or the imposition of a travel ban, the person concerned is prevented from leaving the country and traveling freely (Baumann v. France, Prescher v. Bulgaria). The European Court of Human Rights (ECtHR) made numerous judgements on whether there was a justified infringement of Article 2 of the Fourth Protocol to the ECHR in cases involving a travel ban and revocation of a passport ((Battista v. Italy, Khlyustov v. Russia). As far as we know not yet in terrorism cases. The  Court  found  that  imposing a ban on all foreign travel on a person is draconian. And in many cases, the legitimacy of the aim of such a travel ban is unclear. The grounds on which a state can establish an exception to the right to leave are set out in the Convention and cannot be unilaterally widened.

Movement-restrictive measures that are imposed as a preventive measure are only necessary in a democratic society if there are concrete indications that there is a reasonable threat from the person involved (Labita v. Italy). The restriction must aim to prevent this: it must not be imposed automatically without individual consideration and must not amount to de facto punishment (Riener v. Bulgaria). There must be a concrete assessment of the risk of someone leaving the country to evade certain obligations. The ECtHR has considered travel bans legitimate in the event of a large tax debt, in case of risk of child abduction (Diamante and Pelliccioni v. San Marino) and in the situation where someone is suspected of a crime for the duration of the criminal proceedings (Miazdsik v. Poland). If there are indications that the person concerned will join or is affiliated to a terrorist organization, the ECtHR most likely will consider a travel ban or the revocation of the passport legitimate.

An aspect of the equality of arms principle, as referred to in Article 6 of the ECHR, is that both parties have access to relevant documents and a clear statement of the reasons for the decision. It must be a contradictory procedure, in which the person concerned has the opportunity to present his views and refute the arguments presented by the authorities (T. Barkhuysen & M. van Emmerik, ‘Procedurele rechten’, in: J.H. Gerards (red.), ‘Grondrechten. De nationale, Europese en internationale dimensie’, Nijmegen: Ars Aequi Libri 2014, pag. 36.). Decisions to revoke someone’s passport and to impose a travel ban are however often based on secret official notification of the intelligence and security services, the origin and correctness of which are difficult to trace, and which are not accessible for the interested party nor his representative.

If persons’ rights are restricted under the Temporary Measures Act, they would be able to appeal the ministerial order directly to an administrative court, and an administrative judge could consider any facts and circumstances that had become relevant since the order was issued. However, the judicial review would be available only on procedural grounds, not on substance, and only after the control order had been imposed. The restrictions would remain in force until the appeal was concluded. So far, little appeal has been lodged.

This procedure is in clear violation of the European Convention on Human Rights. In Klass and others v Germany the ECtHR observed that “an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and proper procedure” (Klass and others v. Germany).

Other legality concerns include vague definitions such as, for example, the criterion of ‘grounded presumption’ in the Temporary Measures Act. This entails that a person can be connected to terrorist activities or the support of such activities based on the behavior of that person. This is fairly broad and has no basis in Dutch (criminal) law. Neither is specified what is meant with ‘terrorist activities’ nor which kinds of behavior that can lead to a control order.

Profiling
The new powers mainly affect migrants and refugees, human rights defenders, activists and minorities. Profiling, often based on stereotyping, abuses laws in which terrorism is vaguely defined. So, except that the administrative measures lack the safeguards as provided for in criminal law, it also threatens to fuel stereotypes that certain people – Muslims, foreigners, dual nationals – are more inclined to be associated with terrorism-related acts. Such associations contribute to discrimination and hostility toward such groups. In addition, discriminatory acts of public services under the heading of national security are increasingly seen as acceptable.

If a person is reasonably suspected of involvement in, or the commission of, a terrorism-related offence, that person should be investigated, charged and prosecuted in a criminal proceeding that complies with international fair trial standards. The distinction between the administrative and criminal systems, however, has become blurred in the Netherlands and has resulted in the infringement of key human rights. Use of the administrative system to impose control measures on persons based on secret information violates the presumption of innocence, the right to a fair trial, and the rights to private and family life, freedom of movement, and the right to work.

Values versus violence
The survival of a nation, of social cohesion, of the functioning of democratic institutions, of respect for human rights and of the rule of law, is not fundamentally threatened by the isolated actions of violent and criminal individuals and groups. As much as they want to destroy the authorities, that threat only exists if governments and societies are willing to give up their own values in combating that violence. There is a danger that we will create societies in which freedom becomes the exception and fear is the rule.