22
Human Rights in Counter-Terrorism Investigations
against citizens.29 If they fail to exercise that duty without good cause, they
can be held responsible for any breach of human rights that ensue.
In the same vein, law enforcement agencies have a duty to take steps to prevent harm coming to those who provide information, as established by OSCE
commitments and international human rights law. This duty applies also to
information on terrorism-related acts.
Whatever the gathering method, in some circumstances, especially when
handling human sources of information, the source may need to be treated
in confidence or in a sensitive manner. It is here that the first human rights
concerns arise.
Most law enforcement personnel who deal with the receipt of information
from third parties are aware of the practical necessity of maintaining the
confidentiality of their sources. Quite simply, if the source expects that their
identity will be kept secret and the expectation is not met, then they are
extremely unlikely to provide more information in the future. It is not just
this practical aspect, however, that needs to be considered; the human rights
of the source are also an important consideration, among them the right to
life and the respect for private and family life.
Reprisals of any kind – be they physical attacks, threats or the spreading of
rumours and incitements to ostracize within a community – against those who
provide information to law enforcement agencies are real possibilities. It is
essential that adequate security measures, such as restricted access to databases
and the use of codenames or numbers, are put in place to protect the identity of
the sources. This is especially so with respect to counter-terrorism databases,
where the consequences of information being leaked will often be more serious
than might be the case with other criminal intelligence databases.
Action that would lead to the inadvertent identification of the source should also
be avoided as far as possible. Whether the state will have breached this duty in
a particular case depends on the circumstances and on such factors as the nature
of the information supplied, the potential consequences for the terrorism suspects of law enforcement agencies becoming aware of it, and the subsequent foreseeable risk to the informant. Where the risk is high due to the proximity of the
29
See for example, ECtHR, Osman v. UK, Application No. 87/1997/871/1083, 28 October 1998,
<http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001–58257>.
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