Judicial Cooperation and Protection of Fundamental Rights in the Prevention and Prosecution of Terrorism

Abstract

This chapter explores the change of paradigm in the fight against terrorism, from the national perspectives to the International or European perspective; and the necessary international legal cooperation. Terrorism seeks to provoke collective insecurity, so it demands effective responses from public powers, since it is their responsibility to return security and peace to citizens and to alleviate the effects of brutal criminal acts. However, anti-terrorist measures must neither forget the essential democratic principles that our constitutional rules impose, nor abdicating our determination to constitute a group of countries that govern themselves by the fundamental principles of a social and democratic state governed by law and that seek to serve as a reference of liberty and respect for human rights. Whatever decision or action in this context should start from a premise: it has to respect the dictates of liberty without compromise, not even to combat the scourge of terror. War on terror does not permit personal suspicion or even the conviction of a specific political leader to serve as sufficient reason in itself in order to adopt any type of decision and even less to set aside the rule of law, erasing the social convention that legal rules represent. This attitude not only delegitimizes those who make such decisions, but also poses a serious risk civil co-existence and places society in the waiting room of authoritarianism.

This paper was written in the context of a research project funded by the Spanish Ministry of Education and Science with the title “Restrictions on personal freedom of terrorists in criminal proceedings” (reference: DER 2008\06178) and directed by Víctor Moreno Catena. Moreover, Víctor Moreno Catena is the director of the Institute “Alonso Martinez” of Justice and Litigation sited at Carlos III University.