Human Rights Watch (Washington, DC)
30 June 2009
(Page 2 of 4)
Infringement of Freedoms of Speech and Expression
Many national counterterrorism laws contain provisions criminalizing speech that incites or supports terrorism. But important international standards on freedom of speech require that such restrictions be limited to speech that directly incites-or is likely to result in-an imminent crime.[16] The draft Proclamation states that "whosoever writes, edits, prints, publishes, publicizes, disseminates, shows, makes to be heard any promotional statements encouraging, supporting or advancing terrorist acts stipulated under ... this Proclamation, or the objectives of [a] terrorist organization; [...] is punishable with rigorous imprisonment from 10 years to 20 years."[17] Such a provision would violate the right to freedom of expression under international law even if the definition of "terrorist act" were in conformity with international standards.[18]
In addition to relying on the overly broad definition of "terrorist acts," this provision is problematic because the provision criminalizes speech ambiguously "encouraging," "advancing," or "in support" of terrorist acts even if there is no direct incitement to violence. Individuals who merely speak in favor of any of the "terrorist acts" could be convicted for encouraging terrorism, and sentenced to 10 to 20 years of "rigorous imprisonment." For example, students participating in a peaceful demonstration seeking to influence government policy-or even someone merely voicing support for such a demonstration without participating-could be subjected to a 10- to 20-year prison term.
Human Rights Watch is also concerned that the inclusion of the references to writing and editing may be aimed at the nation's media. If the government were to place longstanding armed opposition groups such as the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) (which have already been banned) on the list of proscribed terrorist organizations, even a mundane newspaper article describing an Oromo student protest could be deemed "encouragement of terrorism." This scenario is quite likely given that the Ethiopian government has repeatedly sought to characterize the attacks of the ONLF and other insurgent groups as "terrorist" activities. The government already imprisons government critics and opposition figures and accuses them of supporting the OLF, ONLF, and other opposition groups. Ethiopia has sought-so far unsuccessfully-to place the ONLF and other Ethiopian armed opposition movements on the US and UN sanctions lists for supporting terrorism. A journalist interviewing an opposition politician or a supporter of an armed opposition group could be deemed to be "encouraging" terrorism merely by publicizing the views of the interviewee.
Expansion of Police Powers without Due Process Guarantees
The draft Anti-Terrorism Proclamation expands police powers in significant ways. Despite Ethiopian constitutional protections, the police and armed forces have long been implicated in arbitrary arrest, incommunicado detention, and torture and other mistreatment of persons in custody.[19] Thus, the expansion of police powers without a serious effort to improve protections for those detained raises serious concerns that the law may facilitate further abuses.
Powers of Arrest, Search, and Seizure
The draft Proclamation distinguishes between a "sudden search" and a "covert search."[20] A covert search requires a court-approved search warrant if an officer "has reasonable grounds to believe that a terrorist act has been or is likely to be committed."[21] However a "sudden search" of "body and property" can be authorized by the director general of the Federal Police or his designee, without judicial oversight, if a police officer has "reasonable suspicion that a terrorist act will be committed and deems it necessary to make a sudden search."[22]
This gives the police and other security services almost unlimited power to conduct body searches, and search or seize property based solely on the belief that terrorist activity "will be" or has been committed. The provision contains no warrant requirement or any requirement of exigent circumstances that would make a warrantless search or seizure justified.
The National Intelligence and Security Services is also provided authority to "intercept or conduct surveillance on the telephone, fax, radio, internet, electronic, postal, and similar communications of a person suspected of terrorism," and to enter any premise to install and intercept communications after obtaining a court warrant.[23]
Should a police officer believe a terrorist act "will be" committed in a particular place, he has the power to destroy property or restrict movement, even without any requirement of exigency.[24] Those who fail to cooperate with the police are subject to three to 10 years' imprisonment.[25]
The police also have the power to order "any government institution, official, bank, or a private organization or an individual" to provide information or evidence "which [the police officer] reasonably believes could assist to prevent or investigate terrorism cases," without any warrant.[26]
Detention without Charge
The draft Proclamation grants the police the power to make arrests without a warrant, so long as the officer "reasonably suspects" that the person is committing or has committed a terrorist act.[27] The Ethiopian constitution requires that a person taken into custody must be brought before a court within 48 hours and informed of the reasons for their arrest-a protection that is already systematically violated.[28]
The draft Proclamation reiterates the constitutional protection to be brought before a court within 48 hours of arrest, but then permits the police to request additional investigation periods of 28 days each from a court before filing charges, up to a maximum of four months.[29] Currently, Ethiopian police routinely detain people without charge for months, and sometimes ignore judicial orders for release.[30] Providing a statutorily-permitted period of four months whereby individuals may be detained without charge is likely to lead to even further abuses.[31]
International law requires that anyone arrested shall be promptly brought before a judicial authority and criminally charged.[32]
Violation of the Right to Bodily Integrity
The draft Proclamation gives the police the power-without a warrant-to order a suspect in their custody to provide samples of blood and other body fluids, handwriting, hair, fingerprints, and undergo medical tests, and states that "if the suspect is not willing for the test, the police may use force."[33]
Evidentiary Rules and Use of Evidence Obtained by Torture
The draft Proclamation sets new evidentiary standards for terrorism cases under the legislation that are far more permissive than the rules covering ordinary cases. Under these new rules, hearsay or "indirect evidences" can be admitted in court without any limitation.[34] Official intelligence reports can also be admitted "even if the report does not disclose the source or the method it was gathered."[35] By making intelligence reports admissible in court even if the sources and methods are not disclosed, the law effectively allows evidence obtained under torture (if defense counsel cannot ascertain the methods by which intelligence was collected, they cannot show that it was collected in an abusive way). The draft Proclamation deems confessions admissible without a restriction on the use of statements made under torture.[36]
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment explicitly prohibits the use of any statement made as a result of torture as evidence in legal proceedings.[37] The Ethiopian constitution also bars the use of statements obtained through coercion.[38]
Additional Provisions of Concern
The draft Proclamation makes the failure to disclose information or evidence that may assist to "prevent terrorist act before its commission" or may contribute to "arrest, prosecute or punish a suspect" a crime that carries a sentence of three to 10 years' "rigorous imprisonment."[39] Also, any person who knowingly provides false information about a terrorist act, or "believing that the information is false" (a standard that falls short of actual knowledge) also faces punishment of three to 10 years' imprisonment.[40] Such provisions could put citizens in an impossible position: On the one hand they could be charged with a crime for providing information that turns out to be false. On the other hand, they could be convicted of a crime for failing to provide information.
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