The use of the Internet

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102 THE USE OF THE INTERNET FOR TERRORIST PURPOSES measures against terrorism, in conformity with international law, including international human rights and humanitarian law. In addition to incorporating this fundamental principal at a political level, the United Nations, through its Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, regularly reports to the Human Rights Council and to the General Assembly on areas of concern related to the human rights aspects of criminal justice measures targeting terrorism and makes recommendations for remedial action by relevant actors. Issues raised by the Special Rapporteur have included those related to the detention and charging of suspects. 158 341. There are several publications dealing specifically with, and aimed at, promoting respect for human rights and the rule of law within the remit of prosecutors and criminal justice officers involved in terrorism prosecutions. In 2003 the Office of the United Nations High Commissioner for Human Rights produced the Digest of Jurisprudence of the United Nations and Regional Organizations on the Protection of Human Rights while Countering Terrorism. Within the Council of Europe, which has fully recognized and integrated the obligation to implement the protection of human rights as a fundamental principle into its instruments dealing with crime prevention and criminal justice issues, including terrorism, this principle is reaffirmed in the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers on 11 July 2002. 159 These documents provide valuable guidance for prosecutors working in the counter-terrorism field. C. Role of prosecutors in terrorism cases 342. The role of the prosecutor in the conduct of criminal proceedings, including terrorism cases, varies between countries. In some countries, particularly civil-law jurisdictions, prosecutors have formal responsibility for overseeing the conduct of criminal investigations, supervising teams of investigators throughout, making decisions on search and surveillance activities and the laying of charges or indictments and dealing with international cooperation issues and the conduct of proceedings before the courts. 343. In an inquisitorial judicial system like the French one, for example, the prosecutor is generally tasked with beginning the legal action and with initiating preliminary investigations, defining the scope of the crimes; however, an examining judge, or juge d’instruction, will lead the formal judicial investigation, collecting and examining evidence. When the culpability of the subject can be excluded, the examining judge will close proceedings; otherwise, the subject will be committed for trial before a different judge. In terrorism cases, in addition to presenting the prosecution case to a judge, the chief prosecutor may petition or submit a motion for further investigation. 158 Ibid. 159 Any text created within the Council of Europe, irrespective of whether it is a binding convention or a “soft law” instrument, such as a recommendation or resolution issued by the Parliamentary Assembly or the Committee of Ministers, including any guidelines on various topics, must always be in compliance with the extensive case law of the European Court of Human Rights on the respective issue.
CHAPTER vI. PROSECUTIONS 344. In other countries, particularly common-law jurisdictions, prosecutors have traditionally had less direct involvement with, or responsibility for, the conduct of criminal investigations, which are usually led by law enforcement agencies. Typically, in these jurisdictions, prosecutors assume formal responsibility for the conduct of prosecutions at the point of charging or the laying of indictments through to the final disposition of the proceedings. For example, in Nigeria, the national police are responsible for conducting criminal investigations. Upon completion, cases are referred to a prosecution authority that hold responsibility for the laying of charges and the conduct of the criminal proceedings. 345. A similar approach is taken in Indonesia, where a separation exists with regard to the investigation and prosecution of a criminal case. After the commencement of a criminal investigation, the investigator must report the progress of the case to the public prosecutor (art. 109, para. 1, of the Indonesian Criminal Procedure Code) and, once the investigation is concluded, must hand the case files over to the Public Prosecutor (art. 110, para. 1, of the Criminal Procedure Code), who will decide whether a case can be brought to trial (art. 139 of the Criminal Procedure Code). 346. Regardless of the specificities of the particular jurisdiction, however, the role played by prosecutors in terrorism cases continues to evolve to meet the increased demands placed on them by ongoing developments in the type, methods and complexity of terrorism-related crimes, counter-terrorism laws, new investigative techniques and international cooperation arrangements. 347. Experience shows that prosecutors are increasingly being required to play a more direct role in the investigation of crimes, not merely during the prosecution phase. Prosecutors are increasingly adopting a more technical and strategic role, not only informing counter-terrorism policy and legislation but also providing legal and strategic advice and guidance on legal issues during investigations that influence the likely success of any resulting prosecution. Experience shows that they are likely to undertake their role as part of a multidisciplinary/multijurisdictional team. 160 348. Moreover, with increased visibility and scrutiny of terrorism prosecutions, including media coverage and monitoring by human rights groups and international bodies, prosecutors play a crucial role in ensuring that investigations and prosecutions not only are, but are seen to be, conducted in a way that is fair and efficient and that upholds international human rights standards. D. The investigative phase 349. During the intelligence-gathering or investigative phase of counter-terrorism operations, prosecutors are often called upon to provide legal advice on issues related to the use of specialized investigative techniques. 160 Yvon Dandurand, “The role of prosecutors in promoting and strengthening the rule of law”, paper presented to the Second World Summit of Attorneys General, Prosecutors General and Chief Prosecutors, held in Doha from 14 to 16 November 2005. 103
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