ECHR judgment in A and Others v. United Kingdom follows House of Lords judgment, says preventive detention scheme violates article 5.1

Today the Grand Chamber of the European Court of Human Rights delivered its long-awaited judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71.The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter.

The judgment is dealing with a whole set of thorny issues in the context of protecting human rights while countering terrorism.

* Did the applicant’s preventive detention constitute a violation of article 3? No
No, as the applicants didn’t reach the high Kafkaris treshold: they were able to bring proceedings to challenge the legality of the detention scheme and were therefore not “without any prospect or hope of release”. The applicants’ situation was not comparable to an “irreducible life sentence”, which would have given rise to an article 3 violation. (par.131)

The applicants further contended that the conditions in which they were held contributed towards an intolerable level of suffering. The CPT had echoed some of these concerns, but the Court didn’t touch upon this issue as the applicants had exhausted all local remedies.

* Did the applicant’s preventive detention constitute a violation of article 5.1? Yes

The court found that the detention was unlawful under article 5.1.f on the basis of the facts and stated then in crucial paragraph 171:

It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.

* Was the UK’s derogation of article 5 under article 15 valid Yes

This the most interesting part of the judgment, which gives states guidance as to how it would deal with future derogations. This part is worth to read in full (starting from par.173).

* The notion of a temporal limitation to the derogation
par.178 The Court does not consider that derogating measures put in place in the immediate aftermath of the al’Qaeda attacks in the United States of America, and reviewed on an annual basis by Parliament, can be said to be invalid on the ground that they were not “temporary”. (It would be interesting to see the Human Rights Committee’s views on this issue seen in the light of General Comment 29..)

* The severity of the threat
par.179: The court refuted Lord Hofman’s dissenting opinion in the 2005 HoL case saying that a ‘threat to the life of a nation’ requires a “much broader range of factors in determining the nature and degree of the actual or imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperilled to the extent envisaged by Lord Hoffman”. (who had said that such a threat would have to be a threat against “our institutions of government or our existence as a civil community”).

* Was the UK’s derogation proportionate? No

The Court, followed basically the House of Lords and stated that “the derogating measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals”. (par 190). The Court rejected easily two of the Government’s new “creative”arguments namely that by confining the measures to non-nationals 1) “the sensitivities of the British Muslim population were respected, thereby reducing the chances of recruitment among them by extremists” and 2) “that the State could better respond to the terrorist threat if it were able to detain its most serious source, namely non-nationals”. For both arguments the court found no evidence (see para 188 and 189)

* Did the applicant’s preventive detention consitute a violation of article 5.4?
The Court assessed each of the complaints on a case-by-case basis, and found that four of the applicants were indeed unable to effectively challenge the allegations against them, while there was no violation in respect of five other applicants (paras. 212-224).

Last but not least: damages

It remarked that though in many previous cases of unlawful detention it had decided to award large damages, the Court motivated its decision to give only 4000 euro’s to the applicants as follows in para. 252.

The present case is, however, very different. In the aftermath of the al’Qaeda attacks on the United States of 11 September 2001, in a situation which the domestic courts and this Court have accepted was a public emergency threatening the life of the nation, the Government were under an obligation to protect the population of the United Kingdom from terrorist violence. The detention scheme in Part 4 of the 2001 Act was devised in good faith, as an attempt to reconcile the need to prevent the commission of acts of terrorism with the obligation under Article 3 of the Convention not to remove or deport any person to a country where he could face a real risk of ill-treatment (see paragraph 166 above). Although the Court, like the House of Lords, has found that the derogating measures were disproportionate, the core part of that finding was that the legislation was discriminatory in targeting non-nationals only. Moreover, following the House of Lords’ judgment, the detention scheme under the 2001 Act was replaced by a system of control orders under the Prevention of Terrorism Act 2005. All the applicants in respect of whom the Court has found a violation of Article 5 § 1 became, immediately upon release in March 2005, the subject of control orders. It cannot therefore be assumed that, even if the violations in the present case had not occurred, the applicants would not have been subjected to some restriction on their liberty.

I’ll add more comments later..

6 Responses

  1. […] on secret evidence which was not disclosed to the person. The court agreed, relying heavily on the European Court’s decision in A and others vs UK Par. 50 The Government advanced in the Memorial a detailed defence of the use of closed material. […]

  2. […] אך בעוד השופט רובינשטיין מבכה את הבעייתיות הכרוכה במצב שבו “אדם מצוי במעצר בלא שהוא יודע אל נכון במה הוא מואשם”, בעייתיות “שקשה עד מאוד לנושא תפקיד שיפוטי באשר הוא להלמה”, בית הלורדים באנגליה עסוק בלהציב גבולות אמיתיים לסמכויות המדינה לפגוע בזכויות אדם על סמך חומרים חסוים. בהחלטה תקדימית שניתנה יום לפני החלטתו של רובינשטיין, בית הלורדים קבע באופן נחרץ כי צווי הגבלה, המבוססים כל כולם – או באופן מכריע – על חומרים חסויים מהווים תמיד פגיעה בלתי חוקית בזכות החשוד להליך הוגן. החלטת בית הלורדים באה בעקבות פסק דינו של בית הדין האירופי לזכויות אדם מפברואר השנה, […]

  3. […] the Court refers to the standards of the ECHR judgment in A and Others v United Kingdom to conclude that the applicant was not in a position to mount an effective challenge to any of the […]

  4. […] message to police authorities”. They also point out that, in the case when the European court ruled against the UK government on the indefinite detention of foreign nationals, the court did not accept Britain’s attempt […]

  5. […] message to police authorities”. They also point out that, in the case when the European court ruled against the UK government on the indefinite detention of foreign nationals, the court did not accept Britain’s attempt […]

  6. […] to police authorities”. They also point out that, in the case when the European court ruled against the UK government on the indefinite detention of foreign nationals, the court did not accept Britain’s attempt […]

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