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Establishing Control Order Regimes: The International Human Rights Law Implications for Pre-Conviction and Post-Release Control Orders

By: Natalie Garcia

Control orders are restrictive measures placed on individuals that pose an identified threat to public safety as a component of domestic counterterrorism policy. Control orders and their compliance with International Human Rights Law have been the subject of extensive litigation within the European Court of Human Rights and domestic states courts. Controlling provisions are applied in either the preconviction or the post-release stage of a state’s criminal procedure. Preconviction control orders face significant criticism for the potential conflicts with due process protections of the right to a fair trial and the broader right of liberty. This Note describes the current jurisprudence and analyzes its potential application to states that have yet to fully establish control order regimes. Because there is a lack of evidence indicating that preconviction control orders are necessary to prevent coordinated terrorist attacks, this Note finds that states should weigh the protection of individual liberties over the undetermined benefits of such restrictions.

This Note concludes that states should only utilize pre-conviction control orders in the narrowest sense with ample oversight and judicial review mechanisms. It also concludes, however, that post-release control orders should be adopted into any system focused on terrorism prevention to prevent recidivism and ensure the reintegration of individuals previously engaged in terrorism-related activities into society. This Note is particularly pertinent to the number of Balkan states that are currently planning or considering implementing extensive control order regimes.

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