Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Exercises and case studies

 

This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.

The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.

Exercise 1: Role-play (see Teaching Guide)

Divide the class into small groups of ideally 5-7 persons. Ask them to create a short drama of a maximum of 5 minutes each on issues examined in this Module, such as a person being arrested on false or unspecified charges; a person being detained indefinitely; a person being detained incommunicado; a person being extraordinarily rendered (secret detention, use of coercive interrogation, etc.); a person facing refoulement to a country where they face a significant threat of torture; a civilian being interned during a non-international armed conflict, and so forth.

Each person in the group should assume a role, such as the affected person, his/her family members, law enforcement personnel, the judicial authorities, and be encouraged to consider not only relevant legal issues, but also how they might feel in their adopted roles which should then be reflected in the short dramas.

Depending on the available time, class size, etc., some or all of the dramas could be enacted before other class members.

 

Case study 1: Certainty in the law

 

Nasrulloyev case*

Mr. Nasrulloyev was a Tajik citizen who had fled to the Russian Federation. The Tajikistan Prosecutor General's Office charged him with, among other offences, participation in an armed group with a view to attacking Government institutions, subversive activities, high treason and conspiracy to seize State power, and sought his extradition from the Russian Federation. Mr. Nasrulloyev was arrested in Moscow and detained for more than three years before the Supreme Court of the Russian Federation finally refused the extradition request.

In its decision in the Nasrulloyev case, the European Court of Human Rights (ECtHR) found that Russian law regulating the detention of persons with a view to extradition lacked sufficient legal certainty. ECtHR noted that different domestic authorities adopted different positions as to the law applicable to those detained while facing extradition. In particular, ECtHR found insufficient certainty as to the time limits applicable under Russian law. ECtHR found (at para. 77) that "The provisions … governing detention of persons with a view to extradition were neither precise nor foreseeable in their application and fell short of the 'quality of law' standard required under the Convention." Therefore, ECtHR concluded that detention was in violation of the right to liberty.

* Nasrulloyev v. Russia (Application no. 656/06), Judgment of 11 October 2007, European Court of Human Rights.
 

Case study 2: Procedural guarantees for the deprivation of liberty

 

Fox, Campbell and Hartley case*

Mr. Fox and Ms. Campbell were stopped at a police and army roadblock in Northern Ireland (which at the time was plagued by numerous terrorist attacks) and taken to a police station for questioning. Twenty-five minutes after their arrival at the police station they were informed that they were arrested under sect. 11(1) of the Northern Ireland (Emergency Provisions) Act 1978 on suspicion of "being terrorists". No additional information was given at this time.

About five hours later (in the case of Mr. Fox) and seven hours later (in the case of Ms. Campbell), the police interrogated them with regard to their membership in the Provisional IRA, a terrorist group, and to their involvement in a specific criminal act.

Before the European Court of Human Rights (ECtHR), Mr. Fox and Ms. Campbell complained that they had not been promptly informed of the reasons for their arrest and the charges against them.

ECtHR noted that the bare indication of the legal basis for the arrest, taken on its own, as it was provided at the time of the arrest, was insufficient for the purposes of providing information on the charges. ECtHR went on to note, however, that the two arrestees were questioned about very specific factual allegations a few hours after their arrest. "There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation." (Para. 41). ECtHR concluded that "[i]n the context of the present case these intervals of a few hours cannot be regarded as falling outside the constraints of time imposed by the notion of promptness." (Para. 42).

Abdul Ghani Haroon**

Mr. Abdul Ghani bin Haroon and Mr. Gobalakrishnan a/l Nagappan were members of a political party. They were both arrested in April 2001 under the Malaysian Internal Security Act 1960 (ISA) (which has since been repealed in 2012***). They were detained without being charged for any offence.

The families of the two men separately applied for a Writ of Habeas Corpus and both applications were heard together. The High Court of Malaysia held that the detention of the two men by the police were unlawful on several grounds:

The first ground was that there was non-compliance of sect. 73(1) ISA since the arresting officer had failed to state whether he had reason to believe that the detention of the men was necessary with a view to preventing them from acting in a manner that was prejudicial to:

  • The security of Malaysia or any part thereof, or
  • The maintenance of essential services in Malaysia or any part thereof, or
  • The economic life of Malaysia or any part thereof.

The second ground was that there was non-compliance with article 5(3) of the Federal Constitution which requires that detainees be informed of the grounds of arrest. The affidavit of the arresting officer merely mentioned "grounds" but did not specify what those grounds were. It was held that the affidavit must disclose the grounds.

The next ground was that the detention was mala fide by reason of the deliberate and unreasonable denial of access to family members. It was held that to deny the men and their families access to one another for such a long period (about 40 days) constituted cruel, inhuman and oppressive treatment, both to the detained men as well as to their families.

The final ground was that the detention was mala fide by reason of deliberately and unreasonably denying the men access to lawyers. It was held that this was not only a gross violation of the fundamental rights as enshrined in the Constitution, but that it further greatly prejudiced the men in respect of their application for a Writ of Habeas Corpus.

Based on these grounds and two others, the application was allowed and an was order made for the detainees to be released.

* Fox Campbell and Hartley v. United Kingdom (Application nos. 12244/86, 12245/86, and 12383/86), Judgment of 30 August 1990, European Court of Human Rights.
** Abdul Ghani Haroon v Ketua Polis Negara (No. 3), High Court Malaya, 2001 2 MLJ 689.
*** The Internal Security Act allowed for a person to be detained for up to 2 years without being charged with any offence, the rationale being that such detention would be necessary due to the danger to national security posed by the detainee. After the Acts repeal, it was replaced by the 2015 Prevention of Terrorism Act which similarly permits the detaining of a person for up to 2 years without charging him/her.
 

Case study 3: Length of detention

 

Yaman v. Turkey*

Mr. Yaman was a political activist, involved in agitation on behalf of a separatist movement. On 3 July 1995 he was taken into custody by counter-terrorism police officers. As allowed by Turkish law at the time, Mr. Yaman was held for a period of nine days before he was brought before a judge and given the opportunity to challenge the lawfulness of his detention.

The European Court of Human Rights (ECtHR) held (para. 73) that it "has already accepted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems. This does not mean, however, that the authorities have carte blanche under article 5 ECHR [the right to liberty] to arrest suspects and detain them in police custody, free from effective control by the domestic courts". ECtHR recalled that it had earlier held that detention in police custody which "had lasted four days and six hours without judicial control fell outside the strict constraints as to the time laid down by… the Convention, even though its purpose was to protect the community as a whole against terrorism".

ECtHR accordingly confirmed its previous case-law that more than four days of detention without judicial control are incompatible with the Convention and found a violation of Mr. Yaman's rights.

The Torres case**

Mr. Torres, a Spanish citizen who had been previously detained in France and Spain because of involvement in terrorist activities, applied for asylum in Finland. The Finnish authorities detained him under the Finnish Aliens Act and subsequently rejected his application for asylum. Thereafter, Spain requested his extradition, and the legal basis of his detention changed from immigration detention to extradition detention.

During the first seven days of immigration detention, the Finnish Aliens Act only allowed the detainee to appeal to the Minister of Interior, and not to a court. Moreover, when Mr. Torres appealed against a decision by the Minister of Interior to extend his detention for another seven days, the administrative court took three months to decide on his appeal.

The Human Rights Committee noted that this case raised two issues under article 9(4) of ICCPR. First, it found that a delay of seven days before Mr. Torres could start proceedings before a court to have the lawfulness of his detention reviewed was excessive (at para. 7.2). Second, regarding the three months it took the administrative court to decide on the lawfulness of Mr. Torres' detention, the Committee was of the view that "this period is in principle too extended" (at para. 7.3). It did not rule out, however, that good reasons could justify a three-month delay.

* Yaman v. Turkey (Application no. 32446/96), Judgment of 2 November 2004, European Court of Human Rights.
** United Nations, Human Rights Committee (1990). Torres v. Finland, Communication no. 291/1988. 5 April. CCPR/C/38/D/291/1988.
 

Case study 4: Arbitrary arrest and detention

 

The Mukong case*

Albert Mukong was arrested and detained for several months on charges of "intoxication of the national and international public opinion" (at para. 2.6) following an interview with a British television company in which he criticized the Cameroonian government. He claimed that his arrest and detention were arbitrary. The Government of Cameroon claimed that the arrest had been carried out in accordance with its domestic law. It sought to justify its actions on grounds of national security and public order, by arguing that Mr Mukong had exercised his right to freedom of expression without regard to the country's political context and high level of instability.

The Human Rights Committee found that Cameroon had violated article 9(1) of ICCPR in that the author's detention "was neither reasonable nor necessary in the circumstances of the case". Cameroon had not shown that the detention was "necessary ... to prevent flight, interference with evidence or the recurrence of crime". As regards the Government's wider justification for arrest - the degree of instability facing the State - the Committee was of the view that "the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights". The Committee concluded that Mr Mukong's right to liberty had been violated.

* United Nations, Human Rights Committee (1994). Mukong v. Cameroon , Communication no. 458/1991. 21 July. CCPR/C/51/D/458/1991.
 

Case study 5: Procedural fairness and 'equality of arms'

 

A. and Others case*

Following the 9/11 terrorist attacks, the United Kingdom adopted legislation allowing the arrest and extended detention without charges of foreign nationals on the basis of a "certificate" issued by a government minister to the effect that the detainee was an "international terrorist". A. and the other men in this case were detained under this administrative detention scheme for three-and-a-half years.

The "certificate", and therefore the administrative detention based on it, was subject to review by a Special Immigration Appeals Court (SIAC). In determining whether the government minister had had reasonable grounds for suspecting that the detainees were "international terrorists" whose presence in the United Kingdom gave rise to a risk to national security, SIAC used a procedure which enabled it to consider both evidence which could be made public ('open material') and sensitive evidence which could not be disclosed for reasons of national security ('closed material'). The detainee and his legal representatives were given the open material and could comment on it in writing and at a hearing. The closed material was not disclosed to the detainee or his lawyers but to a 'special advocate', appointed on behalf of each detainee by the authorities. In addition to the open hearings, SIAC held closed hearings to examine the secret evidence, where the special advocate could make submissions on behalf of the detainee. However, once the special advocate had seen the closed material he could not have any contact with the detainee or his lawyers, except with the leave of the court. The special advocate could therefore not consult the detainee about any of the allegations contained in secret evidence.

The European Court of Human Rights (ECtHR) examined whether this procedure met the requirements of procedural fairness and 'equality of arms'. ECtHR took as its starting point that there was an urgent need to protect the population of the United Kingdom from terrorist attacks, and a strong public interest in obtaining information about al Qaeda and its associates and in maintaining the secrecy of the sources of such information (at para. 216). Balanced against this public interest was the right of the detainees to procedural fairness. ECtHR maintained that "in view of the dramatic impact of the lengthy - and what appeared at that time indefinite - deprivation of liberty on the [detainees'] fundamental rights" (at para. 217), fair trial guarantees had to be substantially respected; "it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others" (at para. 218).

ECtHR noted that the SIAC, as a fully independent court which could examine both the 'open material' and the 'closed material', was best placed to ensure that no material evidence was unnecessarily withheld from the detainees. The special advocates could provide an important, additional safeguard (at para. 219).

ECtHR found that, in the end, the decisive question to establish whether there had been a fair procedure was whether the detainee "was provided with sufficient information about the allegations against him to enable him to give effective instructions to [his representative and] the special advocate" and to refute the allegations (at para. 220). This was to be assessed on a case-by-case basis.

Where, for example, it was alleged that a detainee had attended a terrorist training camp, if the open material contained specific details about the dates and locations of the alleged training, that should have enabled the detainee to provide an alibi, even if the source of the allegation and other details were not disclosed to him. The same applied to allegations that a detainee had met on a specific date with a specific named terrorist (at paras. 220-222).

On the other hand, in the case of one of the men the open material included evidence that he had been involved in raising money through fraud. However, the evidence which allegedly provided the link between the money raised and terrorism was not disclosed to the detainee. In these circumstances, ECtHR concluded that, even with the assistance of the special advocate, the detainee was not in a position to effectively challenge the allegations against him. The right to challenge the lawfulness of his detention was violated (at para. 223).

* A. and Others v. the United Kingdom (Application no. 3455/05) , Judgment of 19 February 2009, European Court of Human Rights.
 
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