Anti-terrorism legislation

Anti-terrorism legislation
Terrorism
Definitions · Counter-terrorism
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Anti-terrorism legislation
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Anti-terrorism legislation designs various types of laws passed in the aim of fighting terrorism. They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism-related crimes, under the grounds of necessity.

Because of this suspension of regular procedure, such legislation is sometimes criticized as a form of lois scélérates which may unjustly repress all kinds of popular protests. Critics often allege that anti-terrorism legislation endangers democracy by creating a state of exception that allows authoritarian style of government. Governments often state that they are necessary temporary measures that will be dispelled when the danger finally vanish.

However, most anti-terrorist legislation remains in activity even after the initial target of it has been eliminated. A good example of this is the "War on Terror" which officially was to end in 2003, however it persists to this day. With no clear end in sight it violates the laws of reason, facilitating its own brand of circular reasoning and a pseudo straw man ("Terror" as the straw man). Perpetuating its own existence as it were. This presents an unusual case as a logical fallacy.[citation needed] Measures which may be included by anti-terrorism legislation include preventive detention (that is, detention without trial), control orders in the UK and Australia, warrantless searches in the United States.

Contents

Anti-terrorism in the 19th century

Further information: Propaganda of the deed

At the end of the 19th century, Russia, Europe and the United States were confronted to a new radical movement which engaged in violent and illegal acts. This movement was first created in Tsarist Russia, where young intellectuals, staunchly positivist atheists, began to engage in a violent struggle against the Czar. Finding their influence in Nikolai Chernyshevsky's What Is To Be Done?, they began to advocate assassinations and bombings.

One of the first group, Zemlya y Volya (Land and Liberty), formed of upper-class professional revolutionaries, started armed struggle against the Czar's regime. Sergey Nechayev (1847–1882) would become one of the most famous figures of what quickly became known as a "Nihilist" movement, whose fate was described by Albert Camus in The Just Assassins (1949) — Camus would later write a thoroughly thought-out essay on existentialism rebellion and the use of violence in history in The Rebel (1951), which denounced both quietism and terrorism. Russian nihilists eventually succeeded in assassinating Alexander III in 1881.

The "nihilist movement" then quickly spread to all of Europe, in particular via one of the founder of anarchism, Mikhail Bakunin, who fled to Switzerland, a haven for political refugees of the time. There, he joined the First International (IAW), which eventually theorized "propaganda of the deed." Starting in the 1880s, a wave of bombings and assassination attempts, organized by people close to the anarchist movement, literally began to terrorize the governing classes. Propaganda of the deed was not necessary violent action, but often took that form.

Spinning on the right of rebellion, which had been theorized centuries ago by liberal thinker John Locke, such anarchists had no moral problems in theorizing regicides and tyrannicides, since it was "for the good of the people." Bakunin thus wrote that "we must spread our principles, not with words but with deeds, for this is the most popular, the most potent, and the most irresistible form of propaganda."[1]

As soon as 1887, several anarchists opposed themselves to what they saw as a self-defeating tactic, including Peter Kropotkin, who wrote that year in Le Révolté that "it is an illusion to believe that a few kilos of dynamite will be enough to win against the coalition of exploiters". Kropotkin's pragmatism eventually proved to be more realist than the most radical anarchist's idealism. Soon, all the labour movement was confronted to strong repression from the state, which did not manage to convince the people to start an insurrectionary and general strike, as had been expected by the theorists of propaganda of the deed. Furthermore, as depicted in Joseph Conrad's novel, agent provocateurs also infiltrated the movement, permitting many arrests in the social movement.

In France, after Auguste Vaillant's attempt, the "Opportunist Republicans" voted in 1893 the first anti-terrorist laws, which were quickly denounced as lois scélérates. These laws severely restricted freedom of expression. The first one condemned apology of any felony or crime as a felony itself, permitting widespread censorship of the press. The second one allowed to condemn any person directly or indirectly involved in a propaganda of the deed act, even if no killing was effectively carried on. The last one condemned any person or newspaper using anarchist propaganda (and, by extension, socialist libertarians present or former members of the International Workingmen's Association (IWA):

"1. Either by provocation or by apology... [anyone who has] encouraged one or several persons in committing either a stealing, or the crimes of murder, looting or arson...; 2. Or has addressed a provocation to military from the Army or the Navy, in the aim of diverting them from their military duties and the obedience due to their chiefs... will be deferred before courts and punished by a prison sentence of three months to two years.[2]

Thus, free speech and encouraging propaganda of the deed or antimilitarism was severely restricted. Some people were condemned to prison for rejoicing themselves of the 1894 assassination of French president Sadi Carnot by the Italian anarchist Caserio. The Trial of the Thirty took place in 1894, at the issue of which almost all the defendants were acquitted. The term of lois scélérates has since entered popular language to design any harsh or injust laws, in particular anti-terrorism legislation which often broadly represses the whole of the social movements.

The United Kingdom quickly became the last haven for political refugees, in particular anarchists, who were all conflated with the few who had engaged in bombings. Already, the First International had been founded in London in 1871, where Karl Marx had taken refuge. But in the 1890s, the Kingdom became a nest for anarchist colonies expelled from the continent, in particular between 1892 and 1895, which marked the height of the repression. Louise Michel, aka "the Red Virgin", Émile Pouget or Charles Matato were the most famous of the many, anonymous anarchists, desertors or simple criminals who had fled France and other European countries. A lot of them returned to France after President Félix Faure's amnesty in February 1895.

A few hundreds persons related to the anarchist movement would however remain in the UK between 1880 and 1914. The right of asylum was a British tradition since the Reformation in the 16th century. However, it would progressively erode itself, and the French immigrants met with hostility. Several hate campaigns would be issued in the British press in the 1890s against these French exilees, relayed by riots and a "restrictionist" party which advocated the end of liberality concerning freedom of movement, and hostility towards French and international activists[3]

Could the Kingdom continue to provide haven for activists which did not confine themselves to opposition in one single country, but which travel from country to country, theorizing in nternational Revolution? Thus, strong debates began to shake the island, which finally decided to restrict freedom of movement. Thus were created one of the first immigration control laws. In a wholly different context, the same kind of debate would be lifted at the end of the 20th century, with the resurgence of international terrorism, this time under the guise of Islamic terrorism.

International conventions related to terrorism and counter-terrorism cases

Terrorism has been on the international agenda since 1934, when the League of Nations, predecessor of the United Nations, began the elaboration of a convention for the prevention and punishment of terrorism.[4] Although the Convention was eventually adopted in 1937, it never came into force.

Today, there are thirteen counter-terrorism international conventions in force. They were developed under the auspices of the United Nations and its specialized agencies and the International Atomic Energy Agency (IAEA). Moreover, on 8 September 2006, the UN General Assembly adopted a "Global Counter-Terrorism Strategy"[5]

Conventions open to all states

A 14th international convention, a proposed Comprehensive Convention on International Terrorism, is currently under negotiations.

Security Council Resolutions

Regional conventions

Europe

Commonwealth of Independent States

North and South America

Africa

Asia

League of Arab States

Organization of the Islamic Conference

Anti-terrorist legislation in the European Union

European Union

European Court of Human Rights cases related to anti-terrorist legislation

Belgium

  • Belgium Anti-Terrorism Act 2003

France

France has passed a variety of anti-terrorist laws, the first of which being the 19th century lois scélérates restricting freedom of expression. Today, magistrates in the Justice Ministry anti-terrorism unit have authority to detain people suspected of "conspiracy in relation to terrorism" while evidence is gathered against them.[9]

Italy

Further information: History of the Italian Republic

Italy passed various anti-terrorist laws during the "years of lead" (anni di piombo) in the 1970s.

The Reale Act was adopted on 22 May 1975. It allowed the police to carry out searches and arrest persons without being mandated by an investigative judge. Interrogation could take place without the presence of a lawyer. Critics underlined that this contradicted article 3 of the Constitution on equality before the law.[10]

Preventive detention was fixed before 1970 to two years, for a possible sentence going between 20 years to perpetuity, while it was limited to one year for charges of crimes leading to a sentence of less than 20 years. It passed to four years after 1970. A decree-law of 11 April 1974 authorized a four years detention until the first judgment, six years until the appeal, and eight years until the definitive judgment. In case of indictment for "acts of terrorism," the preventive detention was extended to twelve years.[10]

The Cossiga decree-law was passed on 15 December 1979. It prolonged the length of preventive detention relative to terrorism suspicions and allowed wiretaps. Critics have pointed out that this violated articles 15 and 27 of the Constitution.[10] The Cossiga decree-law also created the status of pentito (officially "collaborators of justice"): those accused of terrorism crimes and who accepted of confessing them and of informing the authorities about their accomplices could be liberated.

Law n°191 of May 21, 1978, called "Moro law", and law n°15 of February 6, 1980 were ratifications by the Assembly of decrees of emergency enacted by the executive power, respectively on March 28, 1978 and on December 15, 1979[11]

United Kingdom

Anti-terrorism legislation in common law countries (other than the UK)

Australia

The Civil Rights Network opposes such legislation. Elizabeth Evatt, a federal judge, has criticized John Howard's 2005 anti-terrorism bill, particularly provisions relating to control orders and preventive detention, saying that "These laws are striking at the most fundamental freedoms in our democracy in a most draconian way."[12]

Canada

India

New Zealand

Pakistan

Further information: Court system of Pakistan
  • Suppression of Terrorist Activities Ordinance, 1975 enacted by Zulfikar Ali Bhutto.[14] The law remained in force in the Sindh Province and the Punjab Province until its repeal in 1997,[14] and remained the law in the North West Frontier Province (NWFP) and Baluchistan until August 2001.[14]
  • 1997 Anti-Terrorism Act, signed on August 17, 1997 by then Prime Minister Nawaz Sharif.[15][16] The law, which included a broad definition of "terrorism", was enacted after a January 1997 bombing by Mehram Ali, a member of the Shia militant organization Tehrik Nifaz Fiqh-i-Jafaria (TNFJ).[14] The Anti-Terrorism Act created specials Anti-Terrorism Courts (ATC) as well as an Anti-Terrorism Appellate (ATA) Tribunal.[14] Merham Ali was subsequently tried before those special courts, but made an appeal to the Supreme Court, which confirmed his death sentence, but declared most of the 1997 Anti-Terrorism Act unconstitutional.[14]
  • 24 October 1998 Anti-Terrorism (Amendment) Ordinance issued by Nawaz Sharif's government to respond to most of the Supreme Court's objections.[14] According to political scientist Charles H. Kennedy, "Special Anti-Terrorism courts remained in place but the judges of such courts were granted tenure of office (two years, later extended to two and one-half years); the special Appellate Tribunals were disbanded, appeals against the decisions of the Anti-Terrorism courts would henceforth be to the respective High Courts; and restrictions were placed on the earlier act’s provisions regarding trial in absentia to accord with regular legal procedures.".[14]
  • Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998.[14] Applying itself to the Sindh Province, the ordinance granted broad judicial powers to the military.[14] It also created the new crime of "civil commotion,"[14] which exposed to a penalty of 7 firm prison years. The ordinance defined "civil commotion" as

"creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching/lifting, damage to or destruction of State or private property, random firing to create panic, charging bhatha [protection money/extortion], acts of criminal trespass, distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order..."[14]

  • 30 January 1999: the Pakistan Armed Forces Ordinance of 1998 is extended to the whole country.[14] It was also amended to enable "absconders" from justice to be tried in absentia by any military court.[14] The opposition filed many constitutional petitions challenging the validity of the ordinance, resulting in Liaquat Hussain versus Federation of Pakistan issued on 22 February 1999. The Supreme Court declared the ordinance “unconstitutional, without legal authority, and with no legal effect.”.[14] It rejected Nawaz Sharif's claim that the ordinance was temporary and limited to Sindh Province.[14]
  • 27 April 1999: repeal of the Armed Forces (Acting in Aid of Civil Power) ordinance. However, "civil commotion" is included as a crime under the Anti-Terrorism Act of 1997.[14]
  • 27 August 1999: amendment to the Anti-Terrorism Act, authorizing ATC (Anti Terrorism Court) in all of the country.[14]

South Africa

United Kingdom

  • Prevention of Terrorism Act (Northern Ireland), 1974–89
  • Terrorism Act 2000
  • Anti-terrorism, Crime and Security Act 2001 (the Racial and Religious Hatred Act was supposed to be part of it as provisions, but it was dropped)
  • The Prevention of Terrorism Act 2005 is intended to deal with the Law Lords' ruling of 16 December 2004, that the detention without trial of nine foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with the European Convention on Human Rights. It was given Royal Assent on 11 March 2005. The Act allows the Home Secretary to impose "control orders" on people he suspects of involvement in terrorism, which in some cases may derogate (opt out) from human rights laws. In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The Act was described by Mr Justice Sullivan as an 'affront to justice'. Amnesty International, Human Rights Watch, JUSTICE and Liberty have opposed it. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.
  • The Terrorism Act 2006 increased the limit of pre-charge detention for terrorist suspects to 28-days after a rebellion by Labour MPs. Originally, the Government, and Prime Minister Tony Blair, had pushed for a 90-day detention period, but this was reduced to 28-days after a vote in the House of Commons. Home Office Minister Damian Green announced on 20 January 2011 that the period would revert to 14 days as the order extending the period to 28 days would be allowed to lapse at midnight on 24 January.
  • The Counter-Terrorism Bill 2008[17] is currently going before the UK Parliament, with a clause which aims to increase the limit of pre-charge detention for terrorism suspects to 42-days, however this is currently the subject of much controversy and on-going debate within UK politics.[18] As of 11 June 2008, Prime Minister Gordon Brown narrowly won a House of Commons vote on extending the maximum time police can hold terror suspects to 42 days.[19] The marginal decision, where nine Democratic Unionist MPs decided to vote with him resulting in a 315:306 majority sparked astonishing scenes in the House of Commons as furious Tory MPs shouted "traitors", "shame" and "you've been bought" at the Northern Ireland politicians sitting alongside them.

United States

Federal

Ohio

Anti-terrorism legislation in civil law countries

Chile

Human Rights Watch has criticized the Chilean government for inappropriately using anti-terrorist legislation against indigenous (Mapuche) groups involved in land conflicts. While the legislation in question was originally enacted by the Pinochet dictatorship, the democratic governments that have followed have actually increased its severity[citation needed]. Human Rights Watch has expressed special concern that the current version of the law lists arson as a “terrorist” offence. This has allowed the application of the law against Mapuche vandals. While recognizing that crimes have certainly been committed, the international organization believes that they are not comparable to terrorist acts.[20]

El Salvador

El Salvador, presided by Antonio Saca of the right-wing ARENA party, had adopted in September 2006 an anti-terrorist law. All major parties, including the FMLN, have criticized the law, claiming it could be used against social movements[21]

The government first attempted to use the law against illegal street vendors who violently resisted removal by the police. These charges did not result in convictions.

In July 2007, the Salvadoran government charged fourteen people with acts of terrorism for their participation and/or association with a demonstration against privatization of the nation's water system. Charges were dismissed against one of those arrested. The remainder, known as the Suchitito 13, were released, but continued to face charges under the Special Law Against Terrorist Acts.[22][23] The charges were reduced to "disorderly conduct" in early February 2008 and then completely dropped later in the month.

Peru

Peru adopted anti-terrorist laws in 1992, under Alberto Fujimori's presidency. The laws were criticized by Amnesty International, who declared in its 2002 report that "Detainees falsely charged with “terrorism-related” offences in previous years remained held. “Anti-terrorism” legislation which had resulted in unfair trials since its introduction in 1992 remained in force. Members of the security forces accused of human rights violations continued to have their cases transferred to military courts.".[24] Lori Berenson, a US citizen serving a 20 years prison term in Peru, has been condemned in virtue of these laws, on charges of collaboration with the Túpac Amaru Revolutionary Movement.

Philippines

The Human Security Act of 2007, signed into law by President Gloria Macapagal-Arroyo and effective since July 2007, officially aimed at tackling militants in the southern Philippines, including the Abu Sayyaf group, which has links to al Qaeda and has been blamed for bombings and kidnappings in the region.[25]

Under the law, 3 days warrantless detention are authorized,[25] although arresting officers are obliged to immediately inform a judge about the arrest.[25] Furthermore, detained terrorists are entitled to see a lawyer, a priest, a doctor, or family members.[25] The law allows eavesdropping on suspects[26] as well as access to bank accounts for authorities.[25] Convictions could result in 40 years prison sentences, but compensations are provided for in case of miscarriage of justice.[25][26] Terrorism was defined by Section 3 as "sowing and creating a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand",[26] a formulation criticized by Wilson Fortaleza, national president and third nominee of the labor party-list group Sanlakas, who claimed the law could be used to crush political dissent.[26]

Indonesia

Following the October 2002 Bali bombings Indonesia adopted Government Regulation in Lieu of Law 1/2002. Under the Indonesian legal system, a Government Regulation in Lieu of Law has the same power as a parliament-enacted legislation, except that it can only be issued under emergency circumstances and is subject to review by the next parliamentary session. Nevertheless, Indonesian Parliament enacted this emergency regulation into Law 15/2003. As since, Indonesia has an anti-terror legislation with strong political support. The Anti Terror Law cultivates many criticism, however. The Law contained provisions which can circumvent normal criminal proceeding such as quick and long detention. One of the main contentious provision of the Law is that it allows Intelligence Information to be used as a preliminary evidence that can be used for apprehending a suspect. The role of Intelligegence Information as evidence has been a subject of hot debate in Indonesia[27]

Turkey

Further information: Human rights in Turkey

Article 8 of the Anti-Terror Law (Law 3713; April 1991), slightly amended in 1995 and later repealed,[28] imposed three-year prison sentences for "separatist propaganda." Despite its name, the Anti-Terror Law punished many non-violent offences.[29] Pacifists have been imprisoned under Article 8. For example, publisher Fatih Tas was prosecuted in 2002 under Article 8 at Istanbul State Security Court for translating and publishing writings by Noam Chomsky, summarizing the history of the human rights of Kurdish people in Turkey; he was acquitted, however, in February 2002.[29]

State Security Courts were transformed into Heavy Penal Courts following June 2004 reforms to the 1982 Constitution, enacted following the 1980 military coup.

As of 2008, detainees arrested under the Anti-Terror Law have access to lawyers at the very beginning of their detention.[30]

See also

References

  1. ^ Bakunin, Mikhail (1870) "Letter to a Frenchman on the Present Crisis"
  2. ^ (French) "1. Soit par provocation, soit par apologie [...] incité une ou plusieurs personnes à commettre soit un vol, soit les crimes de meurtre, de pillage, d’incendie [...] ; 2. Ou adressé une provocation à des militaires des armées de terre et de mer, dans le but de les détourner de leurs devoirs militaires et de l’obéissance qu’ils doivent à leurs chefs [...] serait déféré aux tribunaux de police correctionnelle et puni d’un emprisonnement de trois mois à deux ans."
  3. ^ Project of a doctoral thesis, continuing work on "French Anarchists in England, 1880-1905", including a large French & English bibliography, with archives and contemporary newspapers.
  4. ^ See Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (Brill Publishers, 1997) pp. 191-203.
  5. ^ International instruments to counter terrorism, United Nations
  6. ^ "ETS no. 090 - European Convention on the Suppression of Terrorism". Council of Europe. 1977-01-27. http://conventions.coe.int/Treaty/EN/Treaties/Html/090.htm. Retrieved 2008-08-29. 
  7. ^ "ETS No. 190 - Protocol amending the European Convention for the Suppression of Terrorism". Council of Europe. 1977-01-27. http://conventions.coe.int/Treaty/EN/Treaties/Html/190.htm. Retrieved 2008-08-29. 
  8. ^ "Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)". Council of Europe. 2005-05-16. http://conventions.coe.int/Treaty/EN/Treaties/Html/196.htm. Retrieved 2008-08-29. 
  9. ^ Dana Priest, Washington Post, July 3, 2005. "Help From France Key In Covert Operations, Washington Post
  10. ^ a b c Anne Schimel (Study and Research Center of the Institute of Political Studies), in "Justice "de plomb" en Italie ("Lead" justice in Italy), Le Monde diplomatique, March 1998
  11. ^ Giorgio Agamben, EUROPE DES LIBERTÉS OU EUROPE DES POLICES ?, on Parole donnée (French)
  12. ^ Michael Pelly, Tony Stephens and Marian Wilkinson (25 October 2005). "Former leaders call for debate". Sydney Morning Herald. http://www.smh.com.au/news/national/former-leaders-call-for-debate/2005/10/24/1130006061370.html. Retrieved 2006-08-11. 
  13. ^ Kalhan, Anil et al. (2006). Colonial Continuities: Human Rights, Antiterrorism, and Security Laws in India. 20 Colum. J. Asian L. 93. http://papers.ssrn.com/abstract=970503. Retrieved 2009-03-24. 
  14. ^ a b c d e f g h i j k l m n o p q r Charles H. Kennedy, The Creation and Development of Pakistan’s Anti-terrorism Regime, 1997–2002 in Religious Radicalism and Security in South Asia (Satu P. Limaye, Robert G. Wirsing, Mohan Malik, eds.), p.387-413 (a publication of the Asia Pacific Center for Security Studies, Honolulu, Hawaï, Spring 2004).
  15. ^ 1997 Anti-Terrorism Act on Pakistan's Federal Investigative Agency's website.
  16. ^ Kellie Ortega, Anti-terrorist laws in Pakistan, Seminar Magazine, 2002.
  17. ^ Dominic Casciani (24 January 2008). "Terror bill: Key elements". BBC NEWS. http://news.bbc.co.uk/1/hi/uk_politics/7207659.stm. Retrieved 2008-08-29. 
  18. ^ "Terror laws face Commons battle". BBC NEWS. 1 April 2008. http://news.bbc.co.uk/1/hi/uk_politics/7323740.stm. Retrieved 2008-08-29. 
  19. ^ "BBC NEWS $#124; Politics $#124; Brown wins crunch vote on 42 days". BBC News. Page last updated at 19:49 GMT, Wednesday, 11 June 2008 20:49 UK. http://news.bbc.co.uk/1/hi/uk_politics/7449268.stm. Retrieved 2008-08-28. 
  20. ^ "Chile: Undue Process". http://hrw.org/reports/2004/chile1004/. Retrieved 2008-08-28. 
  21. ^ Fighting Terrorism, Latin America Monitor, October 2006
  22. ^ "El Salvador: Amnesty International Criticizes El Salvador for Using Anti-Terrorism Laws to Punish Social Protesters". AMNESTY INTERNATIONAL USA. July 18, 2007. http://www.amnestyusa.org/document.php?lang=e&id=ENGUSA20070718001. Retrieved 2008-08-29. 
  23. ^ "El Salvador Campaign Background". Center for International Policy. 2008-01-18. http://ciponline.org/central_america/El%20Salvador%20Campaign/background.htm. Retrieved 2008-08-29. 
  24. ^ 2002 Report on Peru by Amnesty International (English)
  25. ^ a b c d e f Philippines approves terror bill, BBC, 20 February 2007
  26. ^ a b c d Romero, Paolo. 'No haven for terror in RP', ABS News, March 7, 2007
  27. ^ Rewriting the Antiterror Law, The Jakarta Post, 24 October 2005
  28. ^ Resolution 1381 (2004), Implementation of decisions of the European Court of Human Rights by Turkey, European Parliament
  29. ^ a b Questions and Answers: Freedom of Expression and Language Rights in Turkey, Human Rights Watch, April 2002
  30. ^ Retrograde Human Rights Trends and Stagnation of the Human Rights Reform Process, 4th part of the Human Rights Watch July 2007 report titled "Turkey: Human Rights Concerns in the Lead up to July Parliamentary Elections."

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