Friday, February 20, 2009

Post 9/11 UK anti-terrorism law before the European Court of Human Rights

In a meticulously reasoned (257 paras. long) and unanimous judgment delivered on Feb. 19, the European Court of Human Rights held that British authorities violated Art. 5 § 1 (right to liberty and security), Art. 5 § 4 (right to have lawfulness of detention decided by a court) and Art. 5 § 5 (victims of unlawful arrest or detention shall have an enforceable right to compensation) of the European Convention on Human Rights (ECHR). The full-text of the judgment is available here.

In this case, the eleven applicants (from the Maghreb or the Middle East) complained that they were detained in high security conditions under a statutory scheme (i.e. the Anti-Terrorism, Crime and Security Act 2001), which permitted the indefinite detention of non-nationals certified by the Secretary of State as suspected of involvement in terrorism, in violation of the provisions of the ECHR. The British Government, well aware that this detention scheme was not consistent with Art. 5 § 1 ECHR, issued a notice of derogation under Art. 15 ECHR in Nov. 2001 (According to Art. 15 ECHR: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law…”) But the European Court, while agreeing that there had been indeed a public emergency threatening the life of the nation (first condition to fulfill for a country to validly derogate from its obligations under Art. 5 § 1 ECHR), found that the derogating measures had not been strictly required by the exigencies of the situation. As a result, the UK could not lawfully derogate from Art. 5 § 1 ECHR. One should note that the UK government was the only country in Europe who decided to rely on Art. 15 ECHR although it was far from being the only one explicitly threatened by Bin Laden et al. 

The European Court’s judgment in A et al. v. UK should be welcome and should be read in conjunction with the House of Lords’ judgment in the same case. The Law Lords found the detention scheme in violation of the ECHR under the UK 1998 Human Rights Act on the grounds that it did not rationally address the threat to security and unjustifiably discriminated against foreign nationals. The European Court merely confirmed this reasonable interpretation. Furthermore, the European Court’s judgment is well-balanced and sensibly recognizes the difficulties faced by States in protecting their populations from terrorist violence. Yet the Court is right to implicitly point out that the “war on terror” does not give national governments carte blanche to violate human rights and the rule of law. Too often, we have sadly come to realize that our elected officials did not think twice before playing with facts and did not shy away from enacting exceptionally repressive legislation for the sake of scoring points in the polls.

For a well-informed and more exhaustive analysis of this judgment, see the blog of the European Journal of International Law.

Laurent Pech

P.S. In a strange coincidence, the House of Lords, on Feb. 18, overruled the Court of Appeal’s judgment according to which a Jordanian terror suspect could not lawfully be extradited to Jordan because it was likely that evidence obtained by torture could be used against him there at a trial. As a result, the UK Home Secretary decided to immediately sign his deportation order. This individual, however, carefully lodged an application with the European Court a few days before. Unsurprisingly, the European Court sensibly decided to order the UK government not to deport him until the Court has given due consideration to the matter. One may only hope that the European Court will put an end to this abject policy of exporting suspected terrorists to dictatorial and torture-prone countries and that the UK will eventually rediscover the virtues of the rule of law.

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