Scope of mediation

in criminal law-feasibility
and challanges
PRESENTED BY- HEBA JAWED
HIRDYANSH GANDHRAV
HUSSAM ANSARI
8TH SEMESTER (BA.LLB)
 1. DEFINITION OF TERRORISM
2. TERRORISM IN INDIA
3. ANTI-TERRORISM LAW IN
CONTENT INDIA
4. IMPACT OF TERRORISM ON
HUMAN RIGHTS
What Is Terrorism?

 The concept of terrorism isn’t something new to our society. We human beings in the lust of power
have had always committed one act of violence or another. From the ‘Assassins’ of Hassan Bin
Sabbah to the great French revolution, terrorism has always affected the concept of humanity.

 Terrorism is a forceful and unlawful method to achieve the desired goal; and affects almost every
sphere of human life, be it economic, political or social. Terrorism is commonly understood to refer
to acts of violence that target civilian in the pursuit of political or ideological aims, in legal terms,
although the international community has yet to adopt a comprehensive definition of terrorism,
existing declerations, resolutions and universal “sectoral” treaties relating to specific aspects of it
define certain acts and core elements.
 TERRORISM IN INDIA

 Starting from domestic to international to various other novel forms like narco-terrorism
and cyber-terrorism, India has been losing its people to them. Terror attacks have become a
regular scenario in our country. This is happening despite the broader legal regime.
 Provisions of the Indian Penal Code, the major Indian Substantive Criminal Law, and the
recently passed Information Technology Act, 2000 try to address the concerns regarding
terrorism in the country. ‘One man’s terrorist is another man’s freedom fighter.’ India has
witnessed some of the worst terror attacks in the name of superiority of ideologies, in the
world. The 2008 attack in Mumbai stands as a heart-wrenching example. Laws have always
considered terrorism to be a major threat to law, peace, and order in the country.
India has been particularly vulnerable to such terrorist
activities. Before proceeding further, let us go through a
list of the major terrorist activities which shocked the
country:-

 2001- Attack on the Parliament

 March 2003- Bomb goes off in a train in Mulund
 October 2005- Delhi Bombing
 2005- Ram Janmbhoomi attack in Ayodhya
 26th-29th November 2008- Terrorist attacks on
Bombay.
 The very recent attack on Pathankot Airbase on January
1, 2016
 ANTI TERRORISM LAW IN INDIA

1.Unlawful Activities Prevention Act, 1967

This Act was instituted to curb those activities that questioned the territorial integrity of the nation. The ambit of the
Act was strictly limited to the challenges which threatened the territorial integrity of the country, and when the Bill was
debated in the Parliament, it was decided that through narrowing down the ambit of the Act, the right to association
would remain unaffected. The Act has been drafted holistically as such and is completely within the purview of the
central list in the 7th Schedule of the Constitution.

2. Terrorist and Disruptive Activities (Prevention) Act, 1987

Commonly known as the TADA, this Act came into force in November 1987. This Act was more punitive and stringent
than the UAPA and was designed to prevent terrorist operations in the country. When the TADA was introduced, many
questions were raised about its constitutionality, but the Supreme Court held that when such laws are made, it is
assumed that those who are entrusted with the statutory powers given by law will act in good faith. The TADA became
non-functional in the year 1995.
3. The Maharashtra Control of Organized Crime Act, 1999 (MCOCA)
Although this is a state Act, this should also be considered as one of the significant anti-terrorist legislation in the legislative history of India. The
MCOCA was introduced in April 1999 and it was introduced especially to deal with the underworld gangs and organized crime syndicates in all
of Maharashtra.The MCOCA has been very successful in the state of Maharashtra and conviction rate has been as high as 78%. The definition of
a terrorist act is far more stretchable in MCOCA than under POTA. MCOCA mentions organized crime and includes `promotion of insurgency’
as a terrorist act.

4. Unlawful Activities (Prevention) Amendment Act, 2004

The amended Act although does not define the word terrorist but it defines terrorist activities. The word terrorist is to be interpreted in relation to
the activity a person is carrying out. Terrorist Act is defined in Section 15 of the Act. The definition of a terrorist act was not provided in the 1967
Act. In this regard, the law has been widened. The former law only spoke about unlawful activities.

When an association is unlawful, the Central Government has to give a declaration of it citing the reasons for the declaration. The association
will then have to provide a show cause that why it shouldn’t be declared unlawful. Under the amended Act also, the court has to take the
permission of the Central or the state government to take cognizance for any offense falling under this Act. Confessions in front of a police
officer are no longer admissible as evidence. Evidence collected through interception of oral, telephonic and wireless communication is made
admissible under Sec 47 of the Act.
  The wide-spread enactment of anti-terrorist laws in the name of
national security has led to the suspension or restriction of
fundamental rights, such as the right to due process and a fair
trial. The enforcement of these laws has also threatened non-
derogable rights, such as freedom from inhumane treatment or
torture. To what extent are restrictions on civil liberties and human
rights morally or legally justified in times of terrorism?
 These restrictions on human rights include administrative
Impact of measures, such as the practice of mutual legal assistance, which
bypass protections afforded by criminal law, including rule-of-law
Anti-terrorism guarantees from third countries which ensure due process, all in
the name of fighting terrorism.
Law on  In order not to jeopardise the own democratic values, the United
States and the European Union must respect the fundamental and
Human Rights non-derogable rights guaranteed by the UN Universal Declaration
of Human Rights, the European Convention on Human Rights
(ECHR) and the Charter of Fundamental Rights of the European
Union, and administer them uniformly. Currently, appeals to
national security are used by many authoritarian regimes to justify
arbitrarily detaining and suspending basic rights like freedom of
the press and freedom of assembly against perceived political
opponents.
Free democratic societies must stand up for fundamental human rights, especially in exceptional circumstances,
if they are to preserve their commitment to the dignity of the human person and the rule of law.

Since the terrorist attacks of September 11, 2001, numerous anti-terrorism laws have been adopted in the US
and Europe. In the process, civil liberties and human rights have been severely curtailed or suspended. Anti-
terrorist laws, enacted in the name of national security to protect citizens from external threats, have come to
undermine fundamental human rights, including the right to a fair trial, and non-derogable rights such as
freedom from torture and cruel, inhuman or degrading treatment. However, Article 29(2) of the Universal
Declaration of Human Rights states that everyone has the right to freedom and development of his personality,
and that laws may restrict this right only in emergency situations in order to maintain the common good and
public order in a democratic and constitutional system. Article 29 establishes the principle that international
human rights cannot be restricted arbitrarily. The United Nations Global Counter-Terrorism Strategy, in the
form of a Resolution and a Plan of Action, adopted on 8 September 2006, asserts that counter-terrorism
measures and respect for human rights are not opposed and that counter-terrorism measures must be consistent
with human rights. However, since 9/11, the conflict between human rights and security interests in Europe and
the US has been steadily growing. The impartial application of international law is a testament to a nation’s
respect for the international community and the rule of law. Governments that break international laws and
agreements do so at their own risk. There are a number of sanctions, including comprehensive trade sanctions,
that can be imposed. Unfortunately, the US, which has historically taken the lead in establishing international
law and supporting international organisations and is the only remaining “super power”, regularly comes under
attack in the media and from NGOs for breaching international law.
Restrictions of Human Rights in Times of International Terrorism

Any “justifiable” restriction in the enforcement of human rights under international humanitarian law must
comply with the rule of law. In the fight against terrorism, the rights of prisoners may be restricted in exceptional
circumstances, i.e. threats to national security, in accordance with Article 9(2) of the United Nations Covenant on
Civil and Political Rights. Many states do not acknowledge that terror suspects have prisoner rights in general,
which means that those suspected of terrorism are not informed of the charges against them, the reasons for their
detainment or the possible length of their imprisonment. Nevertheless, international humanitarian law and the
UN Covenant on Civil and Political Rights permit states to restrict prisoner rights only under emergency
conditions. Even in emergency situations, the principle of proportionality must be respected. This means that the
measures may only be maintained as long as an acute threat exists.

The most problematic practice when detaining people is the targeted kidnapping of suspects and the detaining
those captured in secret prisons, without providing information to their relatives or the public about their arrest
and their whereabouts. This practice of systematic kidnapping and enforced disappearances was characteristic of
many Latin American dictatorships in the 1960s and 1970s. The catastrophic social and political impact on civil
society of these practices resulted in the establishment of the Organization of American States (OAS).
The Restriction of Human Rights by Mutual Legal Assistance

Mutual legal assistance today often leads to fundamental civil liberties and human rights being restricted or
suspended by administrative practices. In many cases, the consequences for the accused can be devastating. In
the UK, Section 447 of the Proceeds of Crime Act 2002, in relation with Article 7(2) of the Proceeds of Crime
Act 2002 (External Requests and Orders) Order 2005, regulates that the Crown Court can issue restraint orders at
the request of criminal investigators from a foreign country. This law permits, within the framework of mutual
legal assistance, the freezing of assets and money of the accused by law enforcement at the request of foreign
states. Unfortunately, the law does not consider whether the accused is guaranteed due process. Confiscating a
person’s property or assets absent certain protections constitutes discrimination and violation of fundamental
rights guaranteed by the ECHR. To make external requests de facto justifiable, the law would need to require the
requesting state to demonstrate that it complies with the principles of fair trial as defined by the ECHR or by the
Human Rights Act 1998 in the UK.

The ECHR and the principles of a constitutional proceeding suggest that a request for mutual legal assistance
must be warranted, include all relevant questions of facts and law and conform to the principles of a fair trial.
Otherwise, the request must be rejected. In Director of the Serious Fraud Office v A [2007], a Crown Court judge
had frozen assets without notice based on a restraint order by an Iranian judge. However, in his request, the
Iranian judge did not mention that he was a judge in the military court. As a result, the English judge released all
frozen assets based on the non-disclosure of this materially relevant fact.
The court saw a serious violation by the Iranian authorities of the “duty of candour” because they omitted
essential information in requesting legal assistance. In the fight against international terrorism, EU Member
States regularly cooperate with countries that do not comply with the principles codified in the ECHR and the
Charter of Fundamental Rights of the European Union. The exchange of personal data and information
gathered by law enforcement authorities such as Europol or Financial Intelligence Units with third party
countries is particularly problematic, since this exchange of information is often not subject to mechanisms that
ensure democratic control or judicial review. Third party countries often do not have a functioning or
independent judiciary that would guarantee those accused of wrongdoing a fair trial.

The Principle of Fair Trial

European politicians justify collaborations with torture states by appealing to the need to win the “war on
terror”. In doing so, they not only lose political credibility but also whatever moral high ground that separates
democratic countries from terroristic and totalitarian systems. The right to a fair trial is a fundamental principle
of international law. The Universal Declaration of Human Rights requires each state to conduct a fair
(independent and impartial) and public trial presided over by independent judges operating according with the
rule of law in accordance with Article 10. This includes impartiality in the application of the law and forbids
discrimination based on race, religion or political convictions. Equally, the same procedural rights, the so-
called equality of arms, must be granted to defendants as well as prosecutors. A fair trial also requires that the
defence must be granted unrestricted access to investigation files. In many countries today, including China,
Turkey, Uzbekistan and many other countries, there is no independent judiciary.
 In the case of those arrested in Europe based on an international arrest warrant, the question always arises
whether the extradition is permissible based on the ECHR and if sufficient guarantees for a fair trial are ensured,
especially in cases of extradition to countries that allow for torture or the death penalty. For example, in recent
years the European Court of Human Rights has issued a number of judgments against extraditions of persons to
Uzbekistan as in the case of Eshonkulov v Russia [2015].

Although the European Court of Human Rights has consistently thwarted attempts by totalitarian regimes like
the Uzbekistan government to, for example, deport Uzbekistani charged with crimes, the European Union
continues to cooperate with states like Uzbekistan, Egypt or Saudi Arabia that employ torture. Prisoners in these
states are at risk of being tortured or being forced to make confessions extracted under torture or under the threat
of torture. For each State that has signed the ECHR this means that the granting of mutual legal assistance,
including the freezing of assets in the course of investigation in these countries, violates the principles of a fair
trial under Article 3 and Article 6 of the ECHR because judicial due process cannot be guaranteed in countries
that do not accept the international prohibition against torture.

Information or evidence extracted under torture or the threat of torture cannot be admitted as evidence in
European courts. Accordingly, the House of Lords decided in the cases A and Ors v Secretary of State for the
Home Department (No 2) [2005] and RB (Algeria) and Anor v Secretary for the Home Department [2009] that
evidence gained under torture or the credible threat of torture is not legally admissible. As a result, the mutual
legal assistance countries like Germany, the UK or Luxembourg provide to torture states most likely violates
international law and the ECHR.