Problem terorizma v strasbourški sodni praksi

slovenian

2004

IUS SOFTWARE d.o.o.
(Obvezni izvod spletne publikacije)

The article presents jurisprudence of the European Court of Human Rights dealing with violations of human rights and freedoms where the victims are allegedly terrorists. It can be concluded that the Court's settled view is that human rights and freedoms, including all procedural safeguards, need the same standard of protection regardless of the nature of the charges in the prosecution. A state is obliged to abstain from encroachment upon an individual's rights. Furthermore the State is obliged to undertake actions needed to prevent the violation of rights (positive duty). The existence of positive duties is the legal background to establish state responsibility if the state fails to protect those who are under its jurisdiction. In order to effectively counter threats of terrorism, the State must be allowed to use force and undertake other measures such as secret surveillance of mail, post and telecommunications. The court tolerates restriction of rights granted by the Convention, yet at the same time it states that some rights are absolute and not to be restricted, e.g. the prohibition of ill-treatment. Restriction of other rights is accepted by the Court if it is absolutely necessary and proportionate to the aim being pursued. The Court has developed guidelines by weighing human rights and freedoms on the one hand and the need for safety from terrorism on the other. The Court emphasizes the need to ensure effective previous and subsequent judicial supervision over measures. If the rights have been violated it is, according to the settled case law, the duty of the state to ensure an effective investigation that is able to lead to the identification and punishment of those who are responsible.

26.01.2021