Recommendation 4

Set investigative tools within the rule of law.

The mandate of authorities vested with investigative responsibilities should be based on clear rule of law foundations and accountability. This concerns intelligence and investigative entities’ legal mandates. 

Investigators’ methodologies and practices including turning intelligence into evidence, using evidence derived from the Internet, and conducting special investigative techniques should all be firmly based on sound legal provisions with adequate safeguards to protect human rights from any abuse.

Parliaments play a key role in ensuring that CT investigations and adjudications respect due process and also guarantee the principles of legitimate use of investigative techniques such as undercover operations, confidential sources, and electronic surveillance. This concern equally applies to the intelligence services.5 The code of criminal procedures or other legislation should clearly regulate and define these practices and ensure proportionality and standards for detention consistent with international human rights law, such as those embodied in the International Covenant on Civil and Political Rights (ICCPR).6

It is a good practice to invest legislative bodies with the responsibilities to address procedural matters pertaining to the investigation of terrorism-related cases to ensure that they abide by the rule of law, provide for judicial oversight, and protect the rights of the accused.

5. A useful reference is contained in the GCTF’s Recommendations for Using and Protecting Intelligence Information in Rule of Law-Based, Criminal Justice Sector-Led Investigations and Prosecutions. These recommendations are based on Good Practice 6 of the GCTF’s Rabat Memorandum, which encourages States to enact rule of law-based measures to protect the sources and collection methods of such information in terrorism cases. 

6. Terrorist cases typically involve extensive and thorough investigations, which may include the gathering of evidence from other countries. The period of pretrial detention should be subject to prompt judicial review, but should not be a constraint for the continued gathering of additional evidence.