field of law enforcement checks.77 Finally, the European Union Network
of Independent Experts on Fundamental Rights has expressed serious
concerns about the development of terrorist profiles; profiling on the
basis of characteristics such as nationality, age or birthplace, the Experts
have cautioned, “presents a major risk of discrimination.”78 This is also
applicable to the profiling of persons based on their religion. Profiling
or similar devices must strictly comply with the principles of necessity,
proportionality and non-discrimination; they should be subject to close
judicial scrutiny and should be periodically reviewed.79
F. Due process and the right to a fair trial
Guaranteeing due process rights, including for individuals suspected of
terrorist activity, is critical for ensuring that anti-terrorism measures are
effective and respect the rule of law. The human rights protections for all
persons charged with criminal offences, including terrorism-related crimes,
include the right to be presumed innocent, the right to a hearing with due
guarantees and within a reasonable time, by a competent, independent
and impartial tribunal, and the right to have a conviction and sentence
reviewed by a higher tribunal satisfying the same standards.80 International
humanitarian law provides for substantially similar protections for the trial
of persons in the context of armed conflicts.81
In July 2007, the Human Rights Committee adopted general comment
N° 32, revising its general comment on article 14 of the International
Covenant on Civil and Political Rights on the right to a fair trial and
equality before the courts and tribunals. The revised general comment
notes that the right to a fair trial and to equality before the courts and
tribunals is a key element of human rights protection and serves to safeguard
the rule of law by procedural means. Article 14 of the Covenant aims at
ensuring the proper administration of justice and to this end guarantees a
series of specific rights, including that all persons should be equal before
the courts and tribunals, that in criminal or civil cases everyone has a right
to a fair and public hearing by a competent, independent and impartial
tribunal, that everyone charged with a criminal offence should have the
right to be presumed innocent until proved guilty according to law, and
that everyone convicted of a crime should have the right to have his or her
conviction and sentence reviewed by a higher tribunal according to law.
The former Sub-Commission on the Promotion and Protection of Human
Rights for many years addressed issues related to terrorism and human
rights, including the administration of justice through military tribunals.
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