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] the American Convention[846] and other international human rights instruments.[847]

   

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]

 

 

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[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
Nº 281-A, at 17, para. 30.

[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).