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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
At both the international and domestic levels, the international legal principles are the same as laid out above:
• The criteria leading to listing should be clear, publicly available and
non-discriminatory;
• the listings must be strictly time-limited and subject to limited
renewal;
• there must be sufficient notification to the affected parties;
• opportunities must be accorded to rectify errors;
• there must be an effective remedy to allow decisions to be contested;
and
• there must be independent review mechanisms.
e. General
Having examined different preventive measures, the Panel believes it is
impossible to over-state the importance of independent judicial oversight.
This chapter gives clear examples where the judiciary has intervened to
uphold the rule of law and to prevent human rights violations, and situations
where the judiciary has been unable to play this vital role. There may be
disagreements about appropriate preventive measures, and necessary safeguards, but it is vital to the rule of law that such debates continue, and that
the judiciary is given its full and proper place in the adjudicative process.
New developments in intelligence-gathering and sharing are explored in
Chapter Four. It should, however, be noted that as a rule, the more intrusive
the interference is with a person’s rights, and the more irreparable the potential harm caused, the higher the evidential requirement must be. Secrecy,
and the lack of due process that often flows from it, can create both the
perception, and indeed the reality, of unfairness. This in turn can undermine
the perceived legitimacy of the State’s counter-terrorism response. Secrecy
has its limits: if secret intelligence cannot be transformed into evidence over
time, or if the State fails to obtain new evidence, the preventive measure
should cease.
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