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1.
Rights to Freedom of Assembly, Association, and Conscience and
Religion 358.
As noted in Part II(B) concerning terrorism in the context of
international law, modern terrorism has evolved to a significant extent
through the activities of non-state actors composed and coordinated on a
national and, increasingly, international basis, as well as through a
growing network of links between such groups.[829]
As a consequence, formal and informal associations of individuals that
are suspected fora for the coordination and perpetration of terrorist
activities may become the targets of investigation, surveillance and
other forms of intervention by the state. This reality, together with
the ideological basis upon which the work of such groups and
associations may often be based, have potential implications for the
right to freedom of assembly,[830]
the right to freedom of association,[831]
and, in the case of faith-based groups or organizations, the right to
freedom of conscience and religion,[832]
as well as other rights that may be intimately connected with these
protections.[833]
359.
In particular, the rights to freedom of assembly and of
association have been broadly recognized as significant individual civil
as well as political rights that protect against arbitrary interference
by the state when persons choose to associate with others, and are
fundamental to the existence and functioning of a democratic society.[834]
The protection of such rights may entail not only the obligation of a
state not to interfere with the exercise of the right of assembly and of
association, but in certain circumstances may require positive measures
on the part of the state to secure the effective exercise of the
freedom, for example by protecting participants in a demonstration from
physical violence by individuals who may hold opposite views.[835]
360.
These rights may, by their terms, be restricted, but only
strictly in accordance with certain conditions. In the case of the
rights to freedom of assembly and of association, any limitations must
be established by or in conformity with laws that are enacted by
democratically elected and constitutionally legitimate bodies and are
tied to the general welfare.[836]
Such rights cannot be restricted at the sole discretion of
governmental authorities.[837]
Moreover, any such restriction must be in the interest of national
security, public order, or to protect public health or morals or the
rights or freedoms of others, and must be enacted only for reasons of
general interest and in accordance with the purpose for which such
restrictions have been established.[838]
The restrictions must additionally be considered necessary in a
“democratic society,” of which the rights and freedoms inherent in
the human person, the guarantees applicable to them and the rule of law
are fundamental components.[839]
Similarly, while the rights to freedom of assembly and of association
are not designated to be non-derogable, any measures taken by states to
suspend these rights must comply strictly with the rules and principles
governing derogation including the principles of necessity and
proportionality, as discussed in Part II(B). 361.
The Inter-American Court of Human Rights has similarly specified
that the right to freedom of conscience and religion is one of the
foundations of a democratic society and that “[i]n its religious
dimension, it constitutes a far-reaching element in the protection of
the convictions of those who profess a religion and in their way of
life.”[840]
This right is also intimately connected with the right not to be
subjected to discrimination of any kind, which includes discrimination
based upon religious affiliation.[841]
Similar to the rights to freedom of assembly and of association, any
permissible restrictions placed upon the right to freedom of conscience
and religion must be prescribed by law and must be necessary to protect
public safety, order, health or morals, or the rights or freedoms of
others. 362.
Also notable in this connection is the fact that the right to
freedom of conscience and religion is included among the non-derogable
rights listed in Article 27(2) of the American Convention and therefore
may not be suspended at any time, including times of war or other
emergency. In this connection, international humanitarian law applicable
in situations of armed conflict likewise recognizes the fundamental
nature of the right to conscience and religion to persons protected
under that law, having included protections in such fundamental
provisions as Article 75(1) of Additional Protocol I and Article 4(1) of
the Additional Protocol II. Both of these provisions mandate that
persons falling under the terms of those treaties in the context of
international or non-international armed conflicts are entitled to
respect for their “person, honour, convictions and religious
practices.”[842]
363.
In the context of these rules and principles, the Commission
considers it important to emphasize that measures to prevent and punish
terrorism must be carefully tailored to recognize and guarantee due
respect for these rights. This would generally prohibit states from, for
example, banning participation in certain groups, absent evidence that
clearly raised a threat to public safety or security sufficient to
justify an extreme measure of this nature. These protections similarly
require states to ensure that laws or methods of investigation and
prosecution are not purposefully designed or implemented in a way that
distinguishes to their detriment members of a group based upon a
prohibited ground of discrimination, such as religious beliefs, and to
guarantee that methods of this nature are closely monitored and
controlled to ensure against human rights infringements.[843]
364.
States must also guard against the possibility that interference
by the state and its institutions with the exercise by persons of their
rights to freedom of assembly, association and conscience and religion,
and its failure to protect against such interference by non-state
actors, may give rise to a chilling effect by which individuals are
discouraged from expressing or otherwise exercising their rights in
these areas.[844]
2.
Rights to Property and Privacy 365.
As observed in Part I(B) of this report, among the measures
initiated by states to respond to the increased globalization of
terrorist threats have been enhanced measures by states to trace and
freeze funds and other financial or economic resources of persons
implicated in terrorism or entities owned or controlled directly or
indirectly by such persons, as well as the sharing of such information
among authorities within and between states. Measures of this nature in
turn have potential implications for the right to property and the right
to privacy as prescribed in the American Declaration,[845]
366.
While identifying and obstructing the financial and other
resources of terrorist groups has been widely recognized as an important
strategy in impeding their operations,[848]
the fact that the use and enjoyment of property is protected under
numerous international human rights instruments must inform the
development of strategies of this nature. Property has been defined by
the Inter-American Court for the purposes of the American Convention on
Human Rights to encompass those
material things which can be possessed, as well as any right which may
be part of a person’s patrimony; that concept includes all movables
and immovables, corporeal and incorporeal elements and any other
intangible object capable of having value.[849]
367.
As with other fundamental rights, effective protection of the
right to property necessitates ensuring that the right to use and enjoy
property is given effect through legislative and other means, and that
simple and prompt recourse is available to a competent court or tribunal
for protection against acts that violate this right.[850]
While the use and enjoyment of property may be subordinated to the
interest of society, any measures of this nature may only be taken by
law, and the propriety of such measures must, as with all rights
protected in the Hemisphere, be guided by the just demands of the
general welfare and the advancement of democracy.[851]
Similarly, while persons may be deprived of their property by the state,
this can only be done for reasons of public utility or social interest,
and in the cases and according to the forms established by law, and
require just compensation to be paid upon such deprivation.[852]
368.
In this latter connection, the taking of property for reasons of
public utility or social interest that gives rise to a duty to
compensate should be distinguished from controls upon the use or
enjoyment of property, including those arising in connection with
criminal proceedings such as sequestration or confiscation. In the
latter instance, while each case must be evaluated in its own
circumstances in light of the principles of proportionality and
necessity, restrictions on the use or enjoyment of property may well be
necessary in the general interest, to effectively investigate and deter
criminal activity and to ensure that the property does not provide
criminal defendants with advantages to the detriment of the community at
large. By their nature, these types of controls do not entail a duty to
compensate.[853]
369.
In the context of an armed conflict, international humanitarian
law prescribes detailed provisions governing the treatment of property
in international armed conflicts, the terms of which parallel in certain
respects to human rights protections in this area. Article 18 of the
Third Geneva Convention, for example, governs the treatment of the
personal property of prisoners of war at the beginning of their
captivity, Articles 58 to 68 of the Third Geneva Convention prescribe
detailed provisions concerning the financial resources of prisoners of
war, and Article 119 regulates the treatment of the property of
prisoners of war in the context of their release and repatriation.
Articles 97, 98 and 128 of the Fourth Geneva Convention similarly govern
the entitlement of civilian internees to retain articles of personal
use, to receive regular allowances, and to take with them their personal
effects, correspondence and parcels in the event of their transfer.
These provisions are supplemented by the general rule under
international humanitarian law prohibiting the attack, destruction,
removal or rendering useless of objects indispensable to the survival of
the civilian populations such as foodstuffs, agricultural areas for the
production of foodstuffs, crops, livestock, drinking water installations
and supplies and irrigation works.[854]
Certain international humanitarian law instruments and provisions also
specifically prohibit the targeting of cultural objects and places of
worship.[855]
370.
Compliance with these basic norms in the context of
anti-terrorism initiatives has particular significance where it may be
difficult to establish connections between personal assets and terrorist
activities. While states may have some latitude in developing and
implementing strategies that target assets believed to be used for or to
have resulted from terrorist-related activities, any actions taken must
be prescribed by law, have an objective and reasonable basis in fact or
evidence, and be executed under judicial supervision. Proper controls
are particularly important in circumstances where criminal charges,
extradition, or other serious consequences for the individual concerned
may arise out of
property-related investigations.[856]
371.
There may also be occasions in which interference by the state in
a person’s property interests may implicate his or her right to
privacy.[857]
This may arise, for example, where the tracing or freezing of financial
assets involves surveillance and data collection by the state respecting
a person in the course of a criminal or other investigation or
proceeding, as well as the possible exchange of personal information
between law enforcement agencies, governments or other authorities in
possession of such information. Advances in modern technology have
rendered certain forms of communication, such as cellular telephones and
electronic mail, particularly susceptible to improper surveillance by
state authorities. It has been recognized in this regard that
individuals may have vital privacy interests in personal information
gathered by the state concerning their status or activities.[858]
States are therefore required to conduct their initiatives in this
regard in compliance with prevailing norms and principles governing the
right to privacy. This encompasses ensuring that the collection and use
of personal information, including any limitations upon the right of the
person concerned to access that information, is clearly authorized by
law so as to protect the person concerned against arbitrary or abusive
interference with privacy interests, and accordingly that judicial
supervision is available to guard against abuses of these legal
requirements.[859]
[ TABLE OF CONTENTS | PREVIOUS | NEXT ] [829]
For general discussions of the nature and development of modern
terrorism by sub-state groups, see
Russell, supra note 16;
Reisman 1999, supra
note 37, at 50. [830]
American Declaration, supra
note 63, Article XXI (“Every person has the right to assemble
peaceably with others in a formal public meeting or an informal
gathering, in connection with matters of common interest of any
nature”); American Convention on Human Rights, supra
note 61, Article 15 (“The right of peaceful assembly, without
arms, is recognized. No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the law
and necessary in a democratic society in the interest of national
security, public safety or public order, or to protect public health
or morals or the rights or freedom of others”). [831]
American Declaration, supra
note 63, Article XXII (“Every person has the right to associate
with others to promote, exercise and protect his legitimate
interests of a political, economic, religious, social, cultural,
professional, labor union or other nature”); American Convention
on Human Rights, supra
note 61, Article 16 (”1. Everyone has the right to associate
freely for ideological, religious, political, economic, labor,
social, cultural, sports, or other purposes. 2. The exercise of this
right shall be subject only to such restrictions established by law
as may be necessary in a democratic society, in the interest of
national security, public safety or public order, or to protect
public health or morals or the rights and freedoms of others. 3. The
provisions of this article do not bar the imposition of legal
restrictions, including even deprivation of the exercise of the
right of association, on members of the armed forces and the
police”). [832]
American Declaration, supra
note 63, Article III (“Every person has the right freely to
profess a religious faith, and to manifest and practice it both in
public and in private”); American Convention on Human Rights, supra
note 61, Article 12 (”1. Everyone has the right to freedom of
conscience and of religion. This right includes freedom to maintain
or to change one's religion or beliefs, and freedom to profess or
disseminate one's religion or beliefs, either individually or
together with others, in public or in private. 2. No one shall be
subject to restrictions that might impair his freedom to maintain or
to change his religion or beliefs. 3. Freedom to manifest one's
religion and beliefs may be subject only to the limitations
prescribed by law that are necessary to protect public safety,
order, health, or morals, or the rights or freedoms of others. 4.
Parents or guardians, as the case may be, have the right to provide
for the religious and moral education of their children or wards
that is in accord with their own convictions”). [833]
As noted in the section of the report addressing fair trial and due
process guarantees, for example, the ability of states to prosecute
and punish members of a group for alleged terrorist activity is
limited by the general principle of criminal law by which
individuals may only be tried on the basis of individual penal
responsibility and may not be the subject of collective punishment.
Accordingly, a person may not be punished based solely upon his or
her membership in a group alleged to be engaged in terrorist acts,
absent evidence establishing his or her individual responsibility
for the crime or crimes in which a particular group is implicated. See
supra notes 563-565 and
accompanying text (individual penal responsibility), citing, inter
alia, American Convention, Article 5(3) “Punishment shall not
be extended to any person other than the criminal.”; UN Secretary
General Report (1993), supra
note 189, para. 51. [834]
See, e.g., Eur. Comm.
H.R., Rassemblement Jurassien + Unité v. Switzerland, Case Nº
8191, October 10, 1979, D.R. 17, p. 93. [835]
See, e.g., Eur. Court
H.R., Plattform “Ärzte für das Leben” v. Austria, June 21, 1988, Series A Nº 139, p. 12, para. 32. [836]
I/A Court H.R., Advisory Opinion OC-6/86, The
Word “Laws” in Article 30 of the American Convention in Human
Rights, May 9, 1986, Series A Nº 6, paras. 35, 37. [837]
Advisory Opinion OC-6/86, supra
note 836, paras. 22, 27. [838]
American Declaration, supra
note 63, Article XXVIII; American Convention on Human Rights, supra
note 61, Article 30. See also I/A Court H.R., Baena
Ricardo et al. Case (270 Workers v. Panama), February 2, 2001,
Series C, Nº 61, p. 137, paras. 169-173. [839]
Advisory Opinion OC-8/87, supra
note 147, para. 26. [840]
Olmedo Bustos et al. Case,
supra note 649, para. 79. [841]
American Declaration, supra
note 63, Article II; American Convention on Human Rights, supra
note 61, Articles 1(1), 24, 27(1).
[842]
See similarly Third
Geneva Convention, supra note
67, Articles 34-37 (governing the religious activities of interned
prisoners of war); Fourth Geneva Convention, supra
note 36, Articles 27, 38, 93 (governing respect for the
religious convictions and practices of protected persons, including
internees, in the territories of parties to a conflict and in
occupied territories). [843]
See, e.g., IACHR, Report
on Argentina (1980), supra note
27, at 251-254 (criticizing legislative, law enforcement and other
measures taken by the Government of Argentina against the activities
of members of the Jehovah’s Witnesses religious sect). [844]
For a similar phenomenon arising from failures to investigate in the
context of the right to freedom of expression, see Hector Felix
Miranda Case, supra note 704. [845]
American Declaration, supra
note 63, Article XXIII (“Every person has a right to own such
private property as meets the essential needs of decent living and
helps to maintain the dignity of the individual and of the home”;
Article V. “Every person has the right to protection of the law
against abusive attacks upon his honor, his reputation, and his
private and family life”, Article IX “Every person has the right
to the inviolability of his home,” Article X (“Every person has
the right to the inviolability and transmission of his
correspondence”). [846]
American Convention on Human Rights, supra
note 61, Article 21 (“1. Everyone has the right to the use and
enjoyment of his property. The law may subordinate such use and
enjoyment to the interest of society. 2. No one shall be deprived of
his property except upon payment of just compensation, for reasons
of public utility or social interest, and in the cases and according
to the forms established by law. 3. Usury and any other form of
exploitation of man by man shall be prohibited by law”); Article
11 (“1. Everyone has the right to have his honor respected and his
dignity recognized. 2. No one may be the object of arbitrary or
abusive interference with his private life, his family, his home or
his correspondence, or of unlawful attacks on his honor or
reputation. 3. Everyone has the right to the protection of the law
against such interference or attacks”). [847]
Universal Declaration of Human Rights, supra
note 65, Article 17
(“1. Everyone has the right to own property alone as well as in
association with others. 2. No one shall be arbitrarily deprived of
his property.”); Article 12 (“No one shall be subjected to
arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such
interference or attacks.”); International Covenant on Civil and
Political Rights, supra
note 66, Article 17 (”1. No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and
reputation. 2. Everyone has the right to the protection of the law
against such interference or attacks.”); Protocol Nº 1 to the
European Convention on Human Rights, Article 1 (“Every natural or
legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by
law and by the general principles of international law. The
preceding provisions shall not, however, in any way impair the right
of a state to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties”).
[848]
See, e.g., UNSC
Resolution 1373, supra note
40, Preamble (recognizing the “need for States to complement
international cooperation by taking additional measures to prevent
and suppress, in their territories through all lawful means, the
financing and preparation of any acts of terrorism"). [849]
Awas Tingni Case, supra note
800, at 675, para. 144, citing Ivcher Bronstein Case, supra
note 702, para. 122. See
similarly Handyside Case, supra note 649, at 29-30;
Marckx Case, supra note
129, at 27-28. [850]
Awas Tingni Case, supra note
800, at 675, paras. 111-115. [851]
American Declaration, supra
note 63, Article XXVIII. See
also Advisory Opinion OC-5/85, supra
note 152, para. 44. [852]
Awas Tingni Case, supra note
800, at 675, para. 143. [853]
See, e.g., Eur. Court
H.R., Case of Raimondo v.
Italy, February 22, 1994, Series A [854]
See, e.g., Additional
Protocol I, supra note
68, Article 54; Additional Protocol II, supra
note 36, Article 14. [855]
See, e.g., Hague
Convention for the Protection of Cultural Property in the Event of
Armed Conflict, The Hague, 14 May 1954 249 U.N.T.S. 240; Additional Protocol I, supra
note 68, Article 53. [856]
For examples of measures that may arise out of anti-terrorist
investigations, see Inter-American Convention Against Terrorism, supra
note 8. [857]
See supra Part III(E)
(freedom of expression and privacy of personal information). See
also American
Declaration, supra note
63, Article V (“Every person has the right to protection of the
law against abusive attacks upon his honor, his reputation, and his
private and family life”); Article IX (“Every person has the
right to the inviolability of his home”); Article X (“Every
person has the right to the inviolability and transmission of his
correspondence”); American Convention on Human Rights, supra
note 61, Article 11 (”1. Everyone has the right to have his honor
respected and his dignity recognized. 2. No one may be the object of
arbitrary or abusive interference with his private life, his family,
his home or his correspondence, or of unlawful attacks on his honor
or reputation. 3. Everyone has the right to the protection of the
law against such interference or attacks”). [858]
See, e.g., Eur. Court
H.R., Case of Gaskin v.
United Kingdom, July 7, 1989, Ser. A Nº 162, p. 20, para.
49. [859] See American Declaration, supra note 63, Article V; American Convention on Human Rights, supra note 61, Article 11. See also Eur. Court H.R., Case of Klass and Others v. Germany, September 6, 1978, Ser. A Nº 28, paras. 50-60; Eur. Court H.R., Case of Malone v. United Kingdom, August 2, 1984, Ser. A Nº 82, pp. 31-33, paras. 66-68. It should be recalled, however, that in a legitimate state of emergency the rights to property and privacy may be the subject of derogations as discussed in Part II(A).
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