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Glossary9Principle of non-refoulement: absolute prohibition to return, expel or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being subject to torture, inhuman ordegrading treatment.8Pro-active methods of investigation: methods of investigation, startingwith a suspect and using a variety of strategies to discover and demonstratehis or her involvement in various offences, previously recorded or not.Profiling: a systematic association of sets of physical, behavioural or psychological characteristics with particular offences and their use as a basis formaking law-enforcement (investigative) decisions. 9Reactive methods of investigation: methods of investigation that can becharacterized as the application of a set of standard procedures after a terrorism-related crime, such as when a terrorist bombing has been committed.Secret detention: situation in which (a) person(s) is held in incommunicadodetention and where the detaining or otherwise competent authority denies,refuses to confirm or deny or actively conceals the fact that the person isdeprived of his or her liberty from the outside world, or refuses to provide oractively conceals information about the fate or whereabouts of the detainee.Secret detention can take place in official and unofficial places of detention.10Special Investigation Techniques: techniques used to gather information,such as electronic or other forms of surveillance and undercover operations, insuch a way so as not to alert the target person(s) and for the purpose of detecting and investigating offences. 11891011United Nations, Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (CAT), New York, 10 December 1984, Article 3, http://www.un.org/documents/ga/res/39/a39r046.htm .United Nations Special Rapporteur on the promotion and protection of human rightsand fundamental freedoms while countering terrorism, op. cit., note 2, para. 33.Ibid, p.11.Council of Europe Committee of Ministers, Recommendation Rec(2005)10 on “special investigation techniques” in relation to serious crimes including acts of terrorism, Strasbourg,20 April 2005, Chapter 1, https://wcd.coe.int/ViewDoc.jsp?id 849269&Site COE . Seealso Philippe De Koster P, Terrorism: Special Investigation Techniques (Strasbourg: Council ofEurope Publishing, 2005), p.13.

10Human Rights in Counter-Terrorism InvestigationsSurveillance: the monitoring and gathering of information about (a) specificperson(s), including the observation or listening to (a) person(s), their movements, conversations or other activities. It may be conducted with or withoutthe use of a surveillance device and includes the recording of any information obtained. Surveillance is used for a specific defined purpose and limitedin time.Torture: “an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining fromhim or a third person information or a confession punishing him for an acthe or a third person has committed or is suspected of having committed, orintimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at theinstigation of or with the consent or acquiescence of a public official or otherperson acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”12Undercover agent: any law enforcement officer or other person, includingformer members of a terrorist group or otherwise associated with it tasked byhandlers with gathering information and evidence covertly, for instance byinfiltrating an organization suspected of terrorism-related offences. In someOSCE participating States, only law enforcement officers can be involved inundercover operations.Witness: anyone who may give evidence during an investigation and/orbefore a court, other than suspects, which can include victims of terrorist acts.12United Nations, Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (CAT), New York, 10 December 1984, Article 1, http://www.un.org/documents/ga/res/39/a39r046.htm .

ForewordThe OSCE participating States committed themselves to protect and respecthuman rights in the fight against terrorism as early as the Madrid Meeting in1983. This approach reflects the OSCE comprehensive and cross-dimensionalconcept of security, which recognizes that security goes beyond politico-military issues to fully encompass economic, environmental and human rightsissues. Efforts to counter security threats should, therefore, be undertaken inall three OSCE dimensions of security: the politico-military dimension, theeconomic and environmental dimension, and the human dimension.The OSCE views security as anchored in the respect for human rights, democracy and the rule of law, and relates the maintenance of peace to the protection of human rights and fundamental freedoms. Similarly, the 2006 UnitedNations Global Counter-Terrorism Strategy places respect for human rightsand the rule of law at the very core of any counter-terrorism measures. Inthe 2012 OSCE Consolidated Framework for the fight against terrorism,13 theOSCE participating States strongly reaffirmed that such an approach is wellsuited to address challenges posed by terrorism and ensure the respect for therule of law, human rights and fundamental freedoms.The OSCE Office for Democratic Institutions and Human Rights (ODIHR) isthe principal OSCE institution within the human dimension and assists the 57OSCE participating States in fulfilling their human dimension commitments.The Strategic Police Matters Unit of the Transnational Threats Departmentin the OSCE Secretariat assists participating States in police development,reform of criminal justice systems, law enforcement co-operation and effortsto combat organized crime in line with the OSCE Strategic Framework forPolice-Related Activities and the OSCE Concept for Combating the Threat ofIllicit Drugs and the Diversion of Chemical Precursors.13OSCE Permanent Council, Decision No. 1063, “OSCE Consolidated Framework for thefight against terrorism”, Dublin, 7 December 2012, http://www.osce.org/pc/98008 .

12Human Rights in Counter-Terrorism InvestigationsIn particular, ODIHR has been mandated to support the OSCE participatingStates in developing and implementing human rights-compliant measuresto prevent and counter terrorism.14 As part of this mandate, in 2007 ODIHRpublished Countering Terrorism, Protecting Human Rights: A Manual, whichfocuses on the main human rights at risk in the anti-terrorism context andways to ensure the protection of human rights in compliance with international human rights standards and OSCE human dimension commitments.The manual has also aided in training sessions throughout the OSCE regionby providing law enforcement officers with practical tools to enable them torespect international human rights standards and OSCE commitments.ODIHR and the TNTD/SPMU have combined their expertise on human rightsand democratic policing respectively to produce this manual, which exploresin detail the different phases of counter-terrorism investigations and linksthem to relevant human rights standards.We believe that this manual, by examining the topic of protecting humanrights in such investigations from an operational point of view, will providelaw enforcement officers in the OSCE region with useful and concrete guidance to both respect human rights in their daily work, as well as more effectively and successfully investigate terrorism-related acts.Ambassador Janez LenarčičDirector, OSCE Office for Democratic Institutions and Human RightsAlexey LyzhenkovCo-ordinatorDepartment for Addressing Transnational ThreatsOSCE Secretariat14Ibid; and OSCE Ministerial Council, Annex to Ministerial Council Decision No. 1, “TheBucharest Plan of Action for Combating Terrorism”, Bucharest, 3–4 December 2001, http://www.osce.org/mc/40515 .

Introduction“There should be no conflict between human rights and policing.Policing means protecting human rights.”15Human rights are an integral element of all police operations and their practical application is an essential part of any successful investigation. They arethe allies of effective police work. Paying attention to the rights and particular needs of the men, women and children who are part of the communitythat a police officer serves makes the police more effective. This principleapplies as much to terrorism-related crimes as it does to other crimes. It istrue that the emotion generated by terrorist acts may cloud the judgement ofeven the most stoic police officer and that the often covert and intense natureof terrorism-related investigations can give rise to acute and specific humanrights concerns. However, similar emotion and similar issues often arise ininvestigations of other serious crimes.It is a fundamental requirement of international human rights law that a fairtrial depend on a fair and impartial investigation conducted in full compliance with legal and human rights standards. A failure to apply these standards increases the risk of offenders escaping justice. Convictions are renderedunsafe either because innocent people subjected to torture or ill-treatmentconfess to something they have not done, or because of breaches of therespect for private and family life during surveillance or evidence-gatheringoperations, for example. In such cases, a court of first-instance can refuse toconvict or a court of appeal could overturn the conviction.This is not a hypothetical point. The legal reports about a number of OSCEparticipating States by bodies such as the European Court of Human Rights(ECtHR) and the Inter-American Commission of Human Rights (IACHR)161516A New Beginning: Policing in Northern Ireland, the Report of the Independent Commissionon Policing for Northern Ireland (Colegate: Crown, 1999), para. 4.1, 99.pdf .References will be made throughout the manual to the case-law of international bodies.

14Human Rights in Counter-Terrorism Investigationsdemonstrate that the respect for human rights is the cornerstone of lawenforcement efforts to counter terrorism. Respect for human rights in counter-terrorism investigation and prosecution is a pre-condition to effectivelypreventing terrorism. Failure to respect and protect human rights is one ofthe conditions conducive to terrorism; human rights-compliant investigationsare, therefore, key in any effort to counter this security threat.17Respect for human rights – of terrorism suspects, victims, witnesses andpolice officers alike – also ensures that the innocent are not wrongly convicted and that the offenders do not walk free. Respect for human rights principles is, therefore, a practical necessity, essential to effective investigation.That is what this manual is about.In recent years, ODIHR and the OSCE Transnational Threats Departmenthave produced a number of manuals and guidebooks designed to strengthendemocratic policing in OSCE participating States and to protect humanrights while countering terrorism.18 In particular, in 2007 ODIHR publishedCountering Terrorism, Protecting Human Rights: A Manual.19 This is a comprehensive, thorough and detailed examination of the international legal andhuman rights standards that apply to the fight against terrorism and hasbeen used successfully as part of training programmes throughout the OSCEregion. It is of value to police officers, prosecutors, judges, lawyers, academicsand civil society organizations.171819United Nations General Assembly, Resolution 60/288, “The United Nations GlobalCounter-Terrorism Strategy”, 20 September 2006, rrorism.shtml and OSCE Ministerial Council, MinisterialStatement, “Supporting the United Nations Global Counter-Terrorism Strategy”, Madrid,30 November 2007, http://www.osce.org/mc/29544 .Guidebook on Democratic Policing by the Senior Police Adviser to the OSCE SecretaryGeneral (Vienna: OSCE, 2008), http://www.osce.org/spmu/23804 ; Good Practicesin Building Police-Public Partnerships by the Senior Police Adviser to the OSCE SecretaryGeneral (Vienna: OSCE, 2008), http://www.osce.org/spmu/32547 ; Good Practices inBasic Police Training – Curricula Aspects (Vienna: OSCE, 2009); -SPM-3555-EN-2732 ; Trafficking in Human Beings:Identification of Potential and Presumed Victims – A Community Policing Approach (Vienna:OSCE, 2011), http://www.osce.org/node/78849 ; and Guidelines on Human RightsEducation for Law Enforcement Officials (Warsaw: OSCE/ODIHR, 2012), http://www.osce.org/odihr/93968?download true .Countering Terrorism, Protecting Human Rights: A Manual, (Warsaw: ODIHR, 2007) http://www.osce.org/odihr/29103 .

Introduction15Purpose and structure of the manualThis present manual focuses on the investigation process and has been produced following requests from law en

and Special Investigation Techniques . 1.2.1 Surveillance . files/globalizing-torture-20120205.pdf . 5 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, op. cit., note 1. 8 Human Ri