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An Exceptional Situation? A Comparative Assessment of Anti-Terrorism Arrest and Detention Powers in the UK and Spain and of their Compliance with the European Convention on Human Rights

Author(s): Kamena Dorling

Journal: Essex Human Rights Review
ISSN 1756-1957

Volume: 4;
Issue: 1;
Start page: 30;
Date: 2007;
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Keywords: European Convention on Human Rights | anti-terrorism | liberty | security

Following the attacks of 11 September 2001, the United Kingdom (UK) Government was the only state party to introduce new anti-terrorism legislation which required a formal derogation from its obligations under the European Convention on Human Rights (ECHR). It then subsequently proposed further anti-terrorism measures. These either necessitate derogation once more or raise issues of compatibility with the ECHR. For derogation from human rights obligations, as outlined by Article 15, to be deemed justified, not only should a ‘war or other public emergency threatening the life of the nation’ exist but the measures taken should also be ‘strictly required by the exigencies of the situation’. This article analyses whether such justification existed and the affect on the right to liberty and security of the new legislation.Throughout, the comparative legal response taken in Spain is examined, on the basis that Spain’s geographical position and experience of terrorism is analogous to that of the UK. While the European Court affords a margin of appreciation to states when assessing potential human rights abuses, this similarity affords a chance to assess whether the UK’s situation was in any way unique, while also illustrating whether other options of dealing with the terrorist threat exist, which are less in conflict with the country’s human rights obligations.The measures introduced before 11 September 2001 (9/11) to deal with Basque separatism and the conflict in Northern Ireland, and then the approach taken afterwards, relating to pre-charge detention and the right to an effective defence, are scrutinized. Allowing that threats might differ in scale and immediacy, in a climate where anti-terrorism is very much at the forefront of states’ priorities it is essential to ensure that human rights continue to be respected, rather than sacrificed. The question throughout this article is whether the UK’s legislation is justified and proportionate, or whether certain measures stem less from the existence of an actual emergency and more from a politicised construal of risk which seeks to avoid international obligations to allay public fears. While Spain’s treatment of suspected terrorists is in no way free from criticism, it is perhaps its attitude and outward dedication to full respect for internationally acknowledged human rights that forms a stark contrast to those of the UK.
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