Counter-terrorism control orders come to Switzerland: is assigned residence for ‘potential terrorists’ compatible with art. 5 ECHR?

The legislative responses to terrorist violence in Europe over the past several years have shown a new trend of circumventing proper judicial review and protections of criminal law by relying on ‘administrative measures’. Broadly, such measures can be defined as restrictions of a non-criminal nature, ordered by the executive in the name of terrorism prevention, and subject to limited judicial review. European governments now have the powers to prohibit individuals from leaving and returning to their country of residence, deprive them of citizenship on new grounds, issue ‘control orders’ – restrictions on individuals’ freedom of movement, e.g. night curfews, assigned residence, obligation to report – all enforced outside the normal criminal process.

Counter-terrorism powers in Switzerland have been ramped up as well in light of the threat posed by ‘terrorism with its new jihadist face’ in Europe (and despite the absence of terrorist attacks on Swiss soil). In 2015 the government adopted a strategy, which was followed by a steady increase in the number of various counter-terrorism measures. The recourse to administrative measures, however, was limited to travel bans. Recent legislative initiatives are likely to change this. A bill, currently pending in the Swiss Parliament, introduces a number of new measures similar to the ‘control order’ regimes that exist in the UK, France and Germany. However, these measures would take the instrument of assigned residence to a new level of imposed restrictions. In this envisaged regime, assigned residence essentially constitutes a prohibition of leaving such residence (i.e. a place where the concerned individuals live, receive care or treatment, or other public or private institutions under certain conditions), where the federal police might grant exemptions for a limited number of reasons (e.g. health or professional reasons). The regime of assigned residence has since been strongly rejected by a coalition of Swiss human rights groups.

This blogpost highlights the incompatibilities between the bill and article 5 of the ECHR, arguing that the ground for deprivation of liberty provided in art. 5(1)(b) cannot legitimise punitive measures or introduce administrative detention for security reasons through the backdoor.

‘Pre-criminal’ regulation of ‘potential terrorists’

 The new administrative powers envisaged in the bill are intended to apply to individuals who are not suspected of committing or planning to commit a specific offence, but to manage those ‘potential terrorists’ whose radicalization threatens to materialise into terrorist activity.

The notion of ‘potential terrorist’, defined as individuals who could be engaged in terrorist activities (art. 23e), is itself problematic from a human rights law perspective. First, its vague character is questionable under the principle of legality, and, second, because labelling someone a ’potential terrorist’ is likely to infringe the right to privacy by being ‘an unlawful attack on honour and reputation’.

The full list of possible restrictions attached to this designation is also striking and includes:

• the obligation to appear and participate in interviews with cantonal or municipal services to allow an assessment of the threat posed by the individual (art. 23k),
• a ban on direct or indirect contacts with specific individuals or groups (art. 23l),
• the prohibition of leaving or entering specific areas or of entering specific properties (art. 23m), and
• the prohibition of leaving Switzerland when there are concrete and current indications of an intent to commit terrorist activities abroad (art. 23n).

These measures can be imposed simultaneously as well as independently of criminal proceedings that an individual in question might be subject to. The restrictions are designed to apply before, during, and after the completion of the proceedings. The recourse to such administrative measures as a tool of terrorist violence risk management is not new, but rather a (now) mainstream reflection of a larger trend of regulating ‘pre-terrorist’ space in anticipation of acts of violence.

What is more novel is the following: in cases where one of the abovementioned restrictions has been violated, the federal police will be allowed to (additionally) impose assigned residence, provided that there are ‘concrete and current indications that the person concerned poses a considerable threat to the life or physical integrity of third parties that cannot be otherwise prevented’ (art. 23o (1)(a)).

The bill allows for assigned residence to be imposed for up to 3 months and extended twice for the same period (art. 23o (5), while the other measures can be imposed for 6 months and extended once for another 6 months (art. 23g). Unlike other measures, assigned residence is subject to approval by a court (art. 23p), and can be challenged before the Federal administrative court (art. 24g(1)).

Finally, non-compliance with any of the measures is an offence punishable by a custodial sentence of up to three years or a pecuniary penalty (art. 29a).

The mechanism of administratively imposed restrictions in the form of control orders was first introduced in the United Kingdom in 2005, where it has been and continues to undergo reforms while used only against a handful of individuals. The regime has been a subject of constant litigation that focused on whether such limitations constitute a ‘deprivation of liberty’, which would therefore engage the strict requirements of art. 5 ECHR, as opposed to ‘restriction of liberty of movement’.

The Swiss legislators accept that the imposition of assigned residence would constitute a deprivation of liberty under art. 5 ECHR, but they suggested that it is the second limb of art. 5(1)(b) – allowing for deprivation of liberty ‘in order to secure the fulfilment of any obligation prescribed by law’ – that would constitute the relevant ground for deprivation of liberty in such a case. In brief, it would be the failure to comply with the less restrictive measures (arts. 23 k-23n) that would trigger the imposition of assigned residence. This reading of the ECHR appears counter-intuitive and is not supported by the case-law of the ECtHR.

Assigned residence of “potential terrorists” to secure the fulfilment of preventive police measures under art. 5(1)(b) ECHR: is this acceptable?

 The principles governing the operation of art. 5(1)(b) have been summarised by the Grand Chamber in S., V. and A. v. Denmark (2018). Of relevance here is that such deprivation of liberty must be ‘aimed at or directly contribute to securing the fulfilment of that obligation and not be punitive in character’, and therefore the basis for detention only exists as long as the obligation in question remains unfulfilled (para. 81). Cases examined by the Court under this provision reflect the factual scenarios in which detention is used to compel individuals to comply with a “specific and concrete” obligation, and it stops as soon as such compliance is achieved, e.g. a four-hour detention of an individual failing to respect an obligation not to commit a specific offence (Ostendorf), a five-hour detention for the purpose of taking a statement in the context of a criminal investigation (Stefanov), a thirteen-and-a half‑hour detention at a police station following a refusal to disclose identity to the police (Vasileva), a forty‑five hour detention following a refusal to submit to a security check at a border (McVeigh), a forty-two day detention following the refusal to reveal the location of the property sought by the authorities (Göthlin), and other similar cases. These examples demonstrate that a non-punitive detention under lit. (b) is distinguished from a punitive one by the possibility for the detained individuals to be released at any time, provided that they ‘change their attitude’ (Johansen, p. 163) and comply with the obligation, where such obligation must itself be compatible with the ECHR (para. 81).

Additionally, such deprivation of liberty must be necessary to achieve the fulfilment of the obligations and proportionate to the importance of securing the fulfilment of said obligation. The nature and purpose of the obligation, the detained person, the particular circumstances and the length of the detention must be taken into account (Vasileva, paras. 37-38). Detention under art. 5(1)(b) must also be accompanied by appropriate procedural safeguards (art. 5(2-4-5).

The scheme governing the imposition of assigned residence under art. 5(1)(b) as elaborated by the jurisprudence of the ECtHR raises three main questions in relation to the current draft law:

1) What aim is pursued by the assigned residence?;

2) Does the draft law provide for necessary and proportionate measures? and

3) Does the draft law provide for sufficient procedural safeguards?

Regarding the first question, the text of the bill and the discussions in Parliament seem to indicate that the true aim of the bill is not the fulfilment of a particular order; rather, it seeks to prevent undetermined acts of violence and to deter from or punish for failing to respect the initial orders. The relevant article (art. 23o) of the draft provides that assigned residence may be resorted to if two conditions are fulfilled.

First, there must be ‘concrete and current indications’ that a ‘potential terrorist’ constitutes a grave threat to life or limb that cannot be otherwise prevented. In other words, and quite explicitly, the objective is to prevent acts of violence. One is, of course, reminded that ‘the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time’ (Hassan, para. 97) and is therefore incompatible with the ECHR outside international armed conflicts and absent a derogation under art. 15 (id., para. 104). (In fact, the parliament’s Security Policy Committee proposed an amendment that would explicitly allow for such deprivation of liberty, which was qualified by a ministry spokeswoman as impossible to put in place because it would contravene the ECHR).

In the realm of Art. 5(1)(b), the ECtHR has already made clear that the general duty not to commit a criminal offence in the imminent future is not sufficiently concrete and specific to fall under this article. It is only if: 1) the place and time of the imminent commission of the offence and its potential victim(s) are sufficiently specified, 2) if the person concerned was made aware of the specific act which he or she was to refrain from committing, and 3) if that person refused to refrain from so doing that this provision might come into play (Blokhin, para. 122). Quite clearly, the draft law is designed to have a much broader preventative effect.

The second condition is equally problematic. It provides that assigned residence may be imposed if one or more initial orders have not been respected. With that second condition, the design of the measure seems to be punitive. It is not so much to ensure compliance with ordered measures that assigned residence is imposed but because ordered measures have not been respected. This nuance is crucial since as explicitly highlighted by the Court in its jurisprudence, assigned residence under art. 5(1)(b) must not be punitive in character.

Art. 23(o) should not be an ersatz for criminal procedures, which allow for pre-trial detention (art. 5(1)(c) and detention as a sanction (art. 5(1)(a) ECHR). Beyond this, it is unclear if assigned residence would be necessary to secure the fulfilment of the obligation at stake. The factual scenarios in the jurisprudence of the ECtHR on art. 5(1)(b) suggest that this ground for detention can be applied in relation to very specific, concrete and time-bound obligations; for instance, in a case that is the closest to the envisaged regime, to prevent violence by hooligans during a specific football match. In the draft law, the obligations at stake are by nature much more diffuse and extend over time. For instance, they might include periodical ‘de-radicalization’ interviews, or the prohibition to enter a specific place of worship, or to meet relatives for an unspecified amount of time.

In this context, it is quite unclear how a ‘potential terrorist’ detained may actually obtain the lifting of the assigned residence, or, in other terms, how he/she may ’comply’ with the obligation during the assigned residence. Would a ‘promise’ to go diligently to deradicalization interviews in the future or not to meet the suspected acquaintance suffice? If not, what kind of ‘change of attitude’ would be considered sufficient to put an end to the assigned residence? Indeed, art. 23p(f) of the bill specifies that the federal police must immediately put an end to the assigned residence if ‘the conditions for pronouncing the measure are no longer met’. On a generous reading, it means that if the great threat to life or limb is no longer present or if the initial measures are complied with, then the detained individual must be immediately released. However, because the administrative measures envisaged in the draft law are not time-bound, it appears that in practice one would only be released when the threat posed by them has disappeared. Again, this is evidence that the true nature of the foreseen regime is more akin to security detention than to a limited deprivation of liberty necessary to secure the fulfilment of an obligation prescribed by law.

With respect to those who can be deprived of liberty, it is to be noted that the assigned residence may even be imposed against children between 15 and 18 years old. The vulnerability of children may further raise doubt about the proportionality of the regime under article 5 ECHR, and would engage children’s rights law, including the UN Convention on the Rights of the Child (1989, especially art. 3 and 37b) to which Switzerland is a party.

The potential duration of the assigned residence (3 months, renewable twice) is equally questionable in terms of proportionality. While the ECtHR has not specified time limits for detention under art. 5(1)(b), deprivation of liberty under this provision in most cases lasted for a few days, not months. In Göthlin, where the applicant was detained for forty-two days (which the ECtHR found to be ‘a relatively long time’), it was considered relevant that ‘the lawfulness and reasonableness of his continued detention was reviewed every other week by [a court], where the applicant was heard in person and the applicant could […] appeal against its decision to the appellate courts’ (para. 65).

Nothing in the draft law envisages such a periodical judicial control at the initiative of authorities (except to prolong the measure after 3 and 6 months). The draft law merely affords the right of habeas corpus to the detainee (art. 23p(4). Given the severity of assigned residence orders, one could also expect the draft to articulate (or at least refer to) specific procedural safeguards, such as the right to be informed in an understandable language of the reasons for the detention and of possible legal remedies and the right to a defence and legal assistance.

In this respect, it has been convincingly argued elsewhere that the imposition of assigned residence under the bill would render art. 6 ECHR applicable under the Engel criteria (paras. 82-83). The proceedings authorising assigned residence would therefore be subject to safeguards under art. 6 ECHR. This is obviously not at all reflected in the draft law, which is based on the premise that such measures are purely administrative.

In brief, there are many good reasons to doubt that the scheme pending before the Swiss Parliament in its current form is compatible with art. 5(1)(b) ECHR. While it is not impossible for a particular case of assigned residence to be compatible with art. 5, the draft law, as it stands, does not sufficiently circumscribe the assigned residence in relation to the purpose of this measure, the affected persons, its potential duration and does not provide sufficient procedural safeguards against abuse. If nevertheless adopted, it would merit substantial redrafting. In particular, the role of the courts needs to be greater than just approving or rejecting the imposition of assigned residence, but protecting individuals from what both the ECtHR and the Commission cautioned against, ‘a wide interpretation [of lit (b) that] would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration […], and entail the risk of arbitrary deprivation of liberty’ (para. 83).