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Punishment before charge…

Written by Khusboo Raza Thursday, 03 January 2013
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The fight against the ‘enemy terrorists’ again involves wide and far reaching powers that can turn an individual and their family and dependents’ lives upside down. There are many examples of punishment before conviction, in this article we look at ‘terrorist asset freezing’.

 

Mr Hassan Baage, Deputy Head of The Counter-Terrorism Committee Executive Directorate (CTED) states that; “We believe an effective, fair and balanced asset freezing mechanism is an important component of a national counter-terrorism strategy”.

However, in this frenzy of catching the ‘baddie’ out, we are left with a harsh Government powered punishment, that can be used against somebody who has never been convicted of an offence, nor even arrested or charged. It means the Government can freeze assets of anyone suspected to be involved in terrorism, so that they cannot access their money, and neither can their family.

Reminiscent of the recent case of Mahdi Hashi, (whose citizenship was revoked by the UK Government whilst his whereabouts were unknown), governmental powers are used layer upon layer, to effectively just intrude into people’s lives, without any evidence against them, and sometimes without any logical reasoning other than to target and victimise.

With terrorist asset freezing, you may never know the reasons for government taking this action against you. And even if one manages to contest in court, then there are allowances for closed hearings and secret evidence. The Independent Reviewer of Terrorism Legislation; David Anderson Q.C. spoke of the regime of asset freezing being a “financial house arrest”. There is a clear breach of due process, as there is no opportunity for individuals to challenge the evidence against them, nor even be made aware of it. Rather than the government having to prove a case against the individual, they are left to defend themselves, with little or no knowledge. With this power in the hands of Government rather than the Courts, there remains little hope as to the effectiveness of trials, being held behind closed doors.

This process leaves a trail of distress and injustice to not only an individual, but to their family too. It is another example of a circular problem, where one is left defenceless to a law, with little hope of being removed from the list, as they have been blacklisted for asset freezing in such a secret manner, that sometimes even they do not know what they have done.

One suggested improvement has been the incorporation of an ombudsperson, who acts as a special advocate and looks into the individual’s case and will present it to the Security Council if there is a lack of evidence, or if the individual’s assets have been frozen incorrectly. However, the ombudsperson’s decision is not binding on the Security Council, thus the effectiveness of this role is not just limited, but rather sugar coating at best.

The Security Council can decline the delisting, and it is again a secretive process, where what is said or looked at is not really known. Furthermore, as it is a role from within the UN office, that is investigating the UN, the independence of such a person is also called into question. Again the decision is taken out of the hands of the court, and placed even more firmly within the governments’.

Also, there are no special lawyers that are specifically trained to fight the UN’s decisions; therefore, a lack of expertise also exists. On the other hand, since the ombudsperson’s role has been introduced, there has been an increase in delisting, showing that the Security Council had very little evidence against many people in the first place. It is also the case that a lot of people targeted for asset freezing are not in a position to be able to finance terrorism. This calls the whole procedure into question, and suggests it is a random selection based largely on tenuous suspicions.

HM Treasury v Ahmed considered the lawfulness of asset freezing against a person who is suspected to be facilitating the commission of acts of terrorism. Ahmed not only had his assets seized, but, this also resulted in the breakdown of his marriage. Thus a violation and lack of respect of his private and family life under Article 8.The Supreme Court held that the use of such a procedure, where there is no scrutiny or debate, and the measure is simply laid before Parliament was outside the powers that the United Nations Act 1946 granted to the Executive. It also described the effect on the individual against whom such measures are used, as “drastic”, “oppressive” and making them “effectively prisoners of the state”.

Despite such disagreement with these measures, the Government stands by asset freezing and other similar ‘strategies in counter-terrorism’. In another case for five individuals who had their assets frozen; known as A, K, M, Q and G, their solicitors commented that “…the Government is willing to sacrifice the fundamental rights and liberties of its citizens, including the fundamental constitutional right that only Parliament can take away basic freedoms, when they  think it convenient to do so.” They argued that the asset freezing regime was harsh and unfair, and the judge found the arguments to be “entirely persuasive”.

Thus, whether it be human rights lawyers, or judges, there is dissent against asset freezing, particularly in the personal sphere, as in the case of the five men described above as the orders having a ‘devastating and humiliating’ impact on their lives. It means that individuals are forced to live on a very basic budget, whereby, they must account for every single penny they have spent, and send this information to the Treasury for scrutiny. In some cases individuals must live off food stamps, and receipts for all of their spending are looked at and must add up. Yet to provide financial assistance to anybody on this UN list would amount to a criminal offence, thus placing wider family members in a stressful position.

In the quarter ending 30 September 2012, the UK froze 102 accounts, totalling £105,000 in frozen assets, with only 9 accounts being unfrozen. This regime is perceived as a part of the fight against the War on Terror, and so it continues to operate. However, what is clear is that justice is slow, with the reality being that many of the people remain listed for asset freezing without review for many years, even with some people on the list being deceased, and remaining on the list as their cases still need to be investigated.

This shows that the ever expansive terrorism legislation is very fast to draw suspects in, yet frighteningly slow in releasing those that are innocent.

What makes the situation worse is that an exaggerated image of widespread, rampant, Muslim terrorists is perpetuated from the doors of Parliament all the way down to the general public. Yet this image misses out that several of those targeted have never been convicted of any crime, and asset freezing causes serious disruption in their lives, along with their families through ‘cruel intrusions’, and even after the process ends for a few, they may still suffer with an attached stigma.

Another important problematic element is that such an operation is not generally proven to be making us any safer. And where reviews are undertaken and reforms made, it can be said that ‘the tools of oppression are merely being refined’.

 

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