Европейский суд по правам человека
19 февраля 2009 года
Facts
In the aftermath of the 9/11 events in the United States and the subsequent activity of Al-Qaeda, the United Kingdom being the US ally announced to the Council of Europe the declaration of the state of emergency. This state of emergency involved amendments to the national anti-terrorism act allowing detention of foreign individuals suspected in relation to terrorism in cases where deportation from the UK is intended but where such deportation for the time being is not possible. The 11 applicants were foreign nationals who were detained under the mentioned law because they were suspected to be international terrorists. It was considered by the British authorities that these individuals could not be deported because they risked ill-treatment in their country of origin, therefore they remained detained for a prolonged period. Each applicant appealed against the decision to detain them. The State institution which reviewed the decisions used a procedure which enabled it to consider both - evidence which could be made public and evidence which could not be disclosed for reasons of national security. The detainees and their legal representatives were introduced with the former. The latter evidence was disclosed only to a special advocate who could comment on it in the special closed hearings concluded by the State institution. The said State institution dismissed all the appeals. Couple of years later the House of Lords proclaimed the scheme of detaining suspected international terrorists unlawful and the applicants who at that time still were detained were released.
Complaint
The applicants complained that the procedure before the responsible state institution was unfair because the evidence against them was not fully disclosed to them. They also complained that their detention was unlawful.
Court's ruling
Firstly, the Court stated that for the detention to be lawful it is not necessary to prevent the individual from committing an offence or fleeing. Any deprivation of liberty in the context of immigration will be justified however only as long as the deportation or extradition proceedings are in progress and prosecuted with due diligence.
Secondly, lawfulness requires that both the substantive grounds for detention and the procedural aspects must be prescribed by national law.
Thirdly, in order to be lawful, the detention must not be arbitrary. Non-arbitrariness means that the detention had to be:
- carried out in good faith
- closely connected to the ground of detention
- in a place where conditions of detention should have been appropriate
- of the length that should not have exceeded that reasonably required for the purpose pursued
In the present case the Court, after a careful analysis and admitting that the state of emergency existed in the UK, could not find sufficient proof why the detention for security reasons would be allowed only in relation to non-nationals but not nationals of the UK. Therefore, the Court found that the derogation of the UK from the said Convention requirements, namely, the imposition of indefinite detention, which was not genuinely concerned with immigration but with national security, was disproportionate as it unjustifiably discriminated between nationals and non-nationals. Consequently, the Court found a violation of Article 5(1) in relation to numerous applicants.
The Court reiterated that when reviewing the lawfulness of any kind of detention the proceedings have to be as much as possible compatible with the rights to a fair trial guaranteed in Article 6 of the Convention. At least, the proceedings must be adversarial and must always ensure equality of arms between the parties, oral hearing may be necessary. The detainees must be able effectively to challenge the basis of the allegations against them. This may involve calling pertinent witnesses and allowing the detainee and his or her representative access to the documents which form the basis of his/her detention. However, there may always be balanced restrictions on fully adversarial proceedings where compelling countervailing interests such as state security so require.
In the present case, keeping the sources secret for national security reasons had to be balanced against the applicants’ right to procedural fairness in their proceedings. The Court accepted that the pertinent state institution was a fully independent court and there was nothing indicates that excessive and unjustified secrecy had been employed in the proceedings or that there had not been compelling reasons for the lack of disclosure in each case.
The open material against five of the applicants had included allegations that were sufficiently detailed to permit an effective challenge of the detention by the applicants. The procedural requirement was thus satisfied in their case. However, the Court found that the open evidence in the cases of the remaining applicants was insufficient to permit an effective challenge of their respective detentions. Thus, the Court found a violation of Article 5(4) in respect of these applicants.