European Court of Human Rights
Published February 20, 2009
A and Others v United Kingdom (Application No 3455/05)
Before J-P Costa, President, and Judges C. Rozakis, Sir Nicolas Bratza, F.
Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, E. Steiner, L.
Garlicki, K. Hajiyev, L. Mijovic, E. Myjer, D. Thór Björgvinsson, G.
Nicolaou, L. Bianku, N. Tsotsoria and M. Poalelungi
Deputy Registrar M. O’Boyle
Judgment February 19, 2009
The European Court of Human Rights held the United Kingdom in breach of
article 5.1 of the European Convention on Human Rights in respect of
nonnational terrorist suspects, since they had not been detained with a view
to deportation and the derogating measures permitting their indefinite
detention discriminated unjustifiably between nationals and nonnationals.
The applicants were 11 individuals: six Algerian, one French, one Jordanian,
one Moroccan, one Tunisian and one, born in a Palestinian refugee camp in
Jordan, was stateless. The French and Moroccan applicants had since elected
to leave the UK.
Following the al-Qaeda attacks of September 11, 2001, on the USA, the British
Government considered that the UK was a particular target for terrorist
attacks.
The government considered that it was necessary to create an extended power
permitting the detention of foreign nationals, where the Home Secretary
reasonably believed that the person’s presence in the UK was a risk to
national security and reasonably suspected that he was an international
terrorist.
Since the government considered that that might not be consistent with article
5.1, on November 11, 2001, they issued a notice of derogation under article
15 to the Secretary-General of the Council of Europe.
The decision to certify each applicant under the AntiTerrorism, Crime and
Security Act 2001 was subject to review every six months before the Special
Immigration Appeals Commission. The commission procedure enabled it to
consider both open evidence and closed material which could not be disclosed
for reasons of national security.
The House of Lords held that there was a threat to security but that the
detention scheme was disproportionate; that UK nationals were also linked to
al-Qaeda therefore the detention scheme discriminated unjustifiably against
foreign nationals, made a declaration of incompatibility under the Human
Rights Act 1998 and quashed the derogation order (The Times December
17, 2004; [2005] 2 AC 68).
Following assurances from the Algerian and Jordanian Governments that the
applicants would not be illtreated if returned, the UK Government served
deportation notices, upheld by the House (The Times February 19,
2009) on Algerian and Jordanian applicants.
The Grand Chamber held as follows:
I Article 3 The Court, while acutely conscious of the difficulties
faced by states in protecting their populations from terrorist violence,
stressed that article 3 enshrined one of the most fundamental values of
democratic societies. Even in the most difficult of circumstances, the
European Convention prohibited in absolute terms torture and inhuman or
degrading treatment and punishment.
The uncertainty and fear of indefinite detention had to have caused anxiety
and distress, as it would virtually any detainee in that position.
It could not, however, be said that they had been without any prospect or hope
of release. In particular, they had been able to bring proceedings to
challenge the legality of their detention and had been successful before the
House of Lords.
The Court found unanimously that there had been no violation of article 3,
taken alone or in conjunction with article 13 guaranteeing an effective
remedy.
II Articles 5.1 and 15 Article 5.1(f) permitted the State to control
the liberty of aliens in an immigration context and the Government contended
that the applicants had been lawfully detained as persons against whom
action was being taken with a view to deportation or extradition.
The Court did not consider that the United Kingdom Government’s policy of
keeping the possibility of deporting the applicants under active review had
been sufficiently certain or determinative to amount to action being taken
with a view to deportation.
Their detention had not fallen within the exception to the right to liberty
set out in article 5.1(f). That conclusion had also been, expressly or
impliedly, reached by a majority of the members of the House of Lords.
Internment and preventive detention without charge were incompatible with the
fundamental right to liberty under article 5.1, in the absence of a valid
derogation under article 15. The Court therefore considered whether the UK’s
derogation had been valid.
Before the domestic courts, the Home Secretary had provided evidence to show
the existence of a threat of serious terrorist attacks planned against the
UK. Additional closed evidence had been provided before the commission. All
the national judges had accepted that danger to have been credible.
Although no al-Qaeda attack had taken place in the UK when the derogation had
been made, the Court did not consider that the national authorities could be
criticised for having feared such an attack to be imminent.
A state could not be expected to wait for disaster to strike before taking
measures to deal with it. Moreover, the danger of a terrorist attack had,
tragically, been shown by the bombings and attempted bombings in London in
July 2005 to have been very real.
Accordingly, the Court, like the majority in the Lords, held that there had
been a public emergency threatening the life of the nation.
The UK government had argued before the Court that it had been legitimate to
confine the detention scheme to nonnationals, to take into account the
sensitivities of the British Muslim population in order to reduce the
chances of recruitment among them by extremists. However, the government had
not provided the Court with any evidence of that.
The system of control orders in he Prevention of Terrorism Act 2005 did not
discriminate between nationals and nonnationals.
The Court, like the House of Lords, found that the derogating measures had
been disproportionate in that they had discriminated unjustifiably between
nationals and nonnationals and held, unanimously, that there had been a
violation of article 5.1
III Article 5.4 Where a person was detained on the basis of an
allegedly reasonable suspicion of unlawful behaviour, the guarantee of
procedural fairness under article 5.4 required him to be given an
opportunity effectively to challenge the allegations. That generally
requires disclosure of the evidence against him.
However, in cases where there was a strong public interest in keeping some of
the relevant evidence secret, for example to protect vulnerable witnesses or
intelligence sources, it was possible to place restrictions on the right to
disclosure, as long as the detainee still had the possibility effectively to
challenge the allegations against him.
The Court considered that the commission, which was a fully independent court
and which could examine both closed and open evidence, was best placed to
ensure that no material was unnecessarily withheld from the detainee.
On the material before it, the Court had no basis to find that excessive and
unjustified secrecy had been employed in respect of any of the applicants’
appeals or that there had not been compelling reasons for the lack of
disclosure in each case.
The Court was of the unanimous view there had been no violation of article 5.4
in respect of five applicants, but there had bee in respect of four.
IV Article 5.5 The Court noted that the violations could not give rise
to an enforceable claim for compensation and held, unanimously, that there
had been a violation of aticle 5.5.
V Other complaints Given the above findings, the Court held that it was
not necessary to examine the applicants’ other complaints.
VI Application of article 41 The Court made awards which were
substantially lower than those in past cases of unlawful detention and
awarded, to the six Algerian applicants €3,400, €3,900, €3,800, €3,400,
€2,500 and €1,700, respectively; to the stateless and Tunisian applicants
€3,900 each; and to the Jordanian applicant €2,800. They were jointly
awarded €60,000 for legal costs.
Full text http://www.echr.coe.int
