Ever since the birth of modern democracies and especially after the development of social, civil and human rights and their incorporation into the states legal and constitutional instrumentation, terrorism has been a distressing problem for both individual states and the international community as a whole. Terrorism is not only an undemocratic means to reach certain political or social objectives, but it is also an anti-democratic phenomenon. Hence states have found, both in the domestic and international sphere, great difficulties in rooting out the problem within so-called democratic boundaries. The importance of certain rights, enshrined in international treaties and within most states constitutional machinery, coupled with the complications of combating the phenomenon of terrorism within the legal, political and social framework of democracy, have combined to produce certain legally enforceable rights under which certain terrorist activities have found protection. It is therefore worthwhile to put forward the question of whether certain provisions in Human Rights legislation pose an effective barrier against certain anti-terrorist policies conducted by individual states, and whether this is just a side-effect of the importance of the protection of Human Rights throughout states world-wide.
Individual states form their own policies against terrorism, subject to the limits imposed by constitutional restrictions and those treaties entered by those, which concern this issue. Perhaps the most illustrative example of this situation are the states party to the European Convention of Human Rights.
The European Convention of Human Rights enshrines certain inalienable rights of the individual, and it is enforced through the mechanisms of the European Court of Human Rights. Every citizen who holds the nationality of a member state or who has sufficient interest in the case may forward a claim to the European Court based on any alleged breach of an article of the Convention. During the past years, instances of suspected terrorists or individuals connected with terrorist activities bringing claims before this Court have taken place, and a certain number of articles have come under scrutiny of the Courts in relation with anti-terrorist policies or actions. Additionally, other articles have not yet been used in this line of complaints, and yet could pose another set of difficulties in the states fight against terrorism if invoked for the protection of certain activities and given individuals.
The European Convention of Human Rights (ECHR) has therefore affected measures touching three main spheres in individual European states anti-terrorist measures: legislation, police procedures and certain limitations on citizens democratic rights.
Legislation lies at the core of any states policy in combating terrorism within its own frontiers. In passing certain laws, the state does not only empower its organisms in their capacities, but also legitimises its actions both legally and morally before its population. Anti-terrorist legislation (or any legislation, for that matter) in any European state must be passed in accordance to its own constitutional provisions and to any external legislation which binds it. Such is the case of the ECHR. In many instances, states have attempted to implement legislation which in its view was constitutional and which has nevertheless been found to be in breach of the Convention.
An example of this conflict between domestic legislation and the ECHR is the group of cases which have arisen against the United Kingdom concerning the situation in Northern Ireland, especially regarding the piece of legislation known as the Prevention of Terrorism Act and the Northern Ireland Emergency Provisions Act 1978 These Acts were aimed at furthering army powers of arrest and the searching of premises without warrant, as well as other anti-terrorist measures. The Prevention of Terrorism Act and the Northern Ireland Emergency provisions Act have come to the attention of the European Court mainly through three cases brought before it, concerning alleged breaches of art 5 in all three instances.
Article 5 of the ECHR protects the individual from arbitrary arrest and detention, providing the citizen with a right to his liberty and security, and establishing the legitimate pathway of legal arrest. The article is divided into five sections, covering prompt information of grounds of arrest, prompt delivery of the prisoner before a judge and his entitlement to trial within a reasonable amount of time, rights of the .