Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case,  UKHL 71, decided by the House of Lords several years ago. 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. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
The applicants’ first argument was that they were victims of inhuman or degrading treatment within the meaning of Article 3 ECHR as a consequence of their indefinite detention. The Court found no violation of Article 3, since the detention was not, in fact, indefinite, as the applicants had available a variety of remedies to challenge it. According to the Court, for preventative detention to constitute inhuman or degrading treatment within the meaning of Article 3, it would be necessary for the applicants to be ‘without any prospect or hope of release’, comparable to an irreducible life sentence (para. 131). There was also no violation of Article 3 in respect of the alleged deterioration of the applicants’ mental and physical health due to detention, as the Court found the application inadmissible in that part since the applicants did not exhaust domestic remedies (paras. 126-136).
This decision of the Court seems right to me, at least on the facts – though perhaps the threshold for the preventative detention to amount to a violation of Article 3 is a bit too rigidly set, in the comparison to an irreducible life sentence. In any case, this part of the judgment is hardly earth-shattering. Of much greater interest is the Court’s discussion of Article 5 ECHR, the right to liberty, and Article 15, the derogation clause.
The Court first dealt with the applicants’ two preliminary objections. First, the applicants objected to the fact that before the European Court the UK Government relied on Art. 5(1)(f) – detention for immigration purposes, with a view to deportation or extradition – as justification for their detention, a justification they did not profess before UK courts, and on which UK courts had nothing to say, because the Government relied solely on its derogation. Second, the applicants objected to the fact that the Government was basically asking the European Court to overrule its own highest domestic court, the House of Lords, on the validity of the Government’s derogation. The Court rejected both of these objections (paras. 153-159), the first one on the grounds that Article 5(1) as a whole was properly before UK domestic courts, and the second one on the grounds that there was no reason of principle why the Government couldn’t call into question in Strasbourg the reasoning of its highest court.
The Court then moved to the merits. It rejected the Government’s reliance on Art. 5(1)(f) on the facts, namely that all but one of the applicants were not, in fact, being held for the purpose of deportation or extradition. There was no evidence that, for example, the UK government was negotiating with other states with the view of facilitating deportation. The Court further distinguished on the facts the Chahal case, where it found no violation of Art. 5 even though the applicant was detained for some six years, because he fell under Art. 5(1)(f) as the Government was actively trying to deport him. (paras. 162-170). Rather (para. 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.
Thus, the preventative detention of the applicants was prima facie unlawful under Article 5, and it is only if the Government’s derogation under Article 15 was valid that this unlawfulness would be precluded. The Court went on to examine the derogation.
The Court first acknowledged that in emergency circumstances which can justify a derogation, the national authorities have a large margin of appreciation, i.e. that the Court would defer to them to a significant extent. But then the Court added a twist (para. 174):
Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide margin of appreciation under Article 15. In the unusual circumstances of the present case, where the highest domestic court has examined the issues relating to the State’s derogation and concluded that there was a public emergency threatening the life of the nation but that the measures taken in response were not strictly required by the exigencies of the situation, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted or misapplied Article 15 or the Court’s jurisprudence under that Article or reached a conclusion which was manifestly unreasonable.
As soon as the Court said that, the outcome of the case was clear. Of course the House of Lords decision in Belmarsh was not manifestly unreasonable, far from it; therefore, the derogation could not be upheld. Nonetheless, the Court did provide some guidance to states on how it would treat derogations, especially in the context of terrorism. This is what makes the judgment particularly important, as it is the Court’s first pronouncement on derogations since the various cases on Northern Ireland.
First, it accepted that the 9/11 attacks and the threat of international terrorism were an emergency threatening the life of the nation within the meaning of Article 15 ECHR. Indeed, the terrorist attacks in London in 2005 only confirmed that such an emergency existed (para. 177).
Second, the Court quite explicitly disagreed with the UN Human Rights Committee that an emergency, and consequently the derogation measures, can only be ‘temporary.’ The Court’s own cases on Northern Ireland confirmed that an emergency and a derogation could last for a long while. The duration of the emergency should be taken into account in the proportionality assessment, but there was no specific temporal limitation to Article 15 (para. 178).
Third, the Court also disagreed with Lord Hoffman’s view in the House of Lords that there was no threat to the life of the nation, because the terrorist attacks could not conceivably be threat to the UK’s institutions of government or the UK’s existence as a civil community. According to the Court, it ‘has in previous cases been prepared to take into account 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.’ (para. 179)
Fourth, the Court acknowledged the fact that the UK was the only European state to make a derogation under Article 15, the Court accepted that
it was for each Government, as the guardian of their own people’s safety, to make their own assessment on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United Kingdom’s executive and Parliament on this question. In addition, significant weight must be accorded to the views of the national courts, who were better placed to assess the evidence relating to the existence of an emergency. (para. 180).
The Court thus accepted that there was a ‘public emergency threatening the life of the nation’; what remained to be decided was whether the UK derogated from its obligations under the Convention only ‘to the extent strictly required by the exigencies of the situation.’ In that regard, the Court stated, as we have seen above, that it would accord great deference to the House of Lords.
The Court first addressed the Government’s argument that the House of Lords did not, in fact, give enough of a margin of appreciation to the Government itself, and rejected it:
The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the applicants were deprived of their fundamental right to liberty over a long period of time. In any event, having regard to the careful way in which the House of Lords approached the issues, it cannot be said that inadequate weight was given to the views of the executive or of Parliament. (para. 184).
On one hand, the European Court gives short shrift to deference to the executive in assessing the proportionality of emergency measures, whatever the state’s margin of appreciation, by saying that proportionality is ultimately a judicial decision – whether for a domestic or for an international court. On the other hand, the Court is exactly right that the margin of appreciation doctrine is a deference doctrine that is applicable only between the Court and the member states, not within the member states themselves. National courts may of course give deference to their own executives; but they cannot do so, and are certainly not required to do so, by the ECHR margin of appreciation doctrine.
The Government also submitted that the House of Lords erred in examining the legislation in the abstract rather than considering the applicants’ concrete cases. However, in the Court’s view, the approach under Article 15 is necessarily focussed on the general situation pertaining in the country concerned, in the sense that the court – whether national or international – is required to examine the measures that have been adopted in derogation of the Convention rights in question and to weigh them against the nature of the threat to the nation posed by the emergency. Where, as here, the measures are found to be disproportionate to that threat and to be discriminatory in their effect, there is no need to go further and examine their application in the concrete case of each applicant. (para. 185).
Like the House of Lords, the Court then considered that the limitation of the derogation measures to non-UK nationals was disproportionate and discriminatory (para. 186), since the potential terrorist threat was in principle posed equally by nationals and by non-nationals (as indeed the 2005 London attacks well attest). The Court then rejected two of the Government’s new arguments, namely that the reason for the limitation of the derogation to non-nationals was a wish to take into account the sensitivities of the British Muslim population (!), which would otherwise be the most affected by the measures (para. 188), and that non-nationals posed more of a threat than nationals (para. 189), on the grounds that the Government provided no evidence for these propositions.
The Court thus found the derogation to have been disproportionate. The Court then moved to the applicants’ claim under Art. 5(4) ECHR, which provides for the right of every detainee to bring proceedings to test the legality of detention and order release. The applicants’ argument was that the proceedings before the Special Immigration Appeals Commission (a fully independent court) did not satisfy due process requirements, because some of the evidence in the proceedings was not disclosed to the applicants, and because of the SIAC’s use of special advocates with security clearances who could not communicate with their clients. 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). The Court further found a breach of Art. 5(5), providing for the right to compensation for unlawful detention (paras. 228-229).
The Court then proceeded to the question of just satisfaction for the determined violations of Article 5. It remarked that though in many previous cases of unlawful detention it had decided to award large damages,
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. (para. 252)
Against this background, the Court awarded the applicants very modest damages, not in excess of 4.000 euros each.
Of particular note is not only that the decision of the Grand Chamber was unanimous, but also that none of the judges appended a separate opinion – a temptation that was probably great in light of the many complex issues in the case. It is certain, therefore, that the Court took great pains to forge a unified position on a politically very delicate set of questions, and it should be commended for managing to do so.
In conclusion, what are we to make of this case? It must be said that this is not some sort of hyper-activist human rightist decision, but a very balanced judgment that takes into account many disparate interests. Of course the UK was going to lose – it had lost the case already before its own courts! In that regard the European Court position that if you’re unable to convince your own courts that these derogation measures are necessary, you certainly aren’t going to convince us, is eminently sensible. The UK’s new arguments before the Court that it did not put before its domestic courts were hardly persuasive. The immigration and deportation detention rationale was obviously a sham, while the argument that the limitation of the derogation to non-nationals was justified by the fact that the British Muslim population would have been offended had the derogation extended to them as well can only be qualified as desperate. Whatever the political reasons for limiting the derogation, these certainly cannot be used to justify discrimination based on nationality, especially because that in fact undermines the whole reasoning behind the derogation, since nationals can be equally dangerous to the state – as the terrorist attacks in London amply demonstrate.
On the other hand, though the UK government lost, the Court’s general position on derogations is quite flexible and undogmatic. It shows that the Court is prepared to cut some slack to governments fighting terrorism, within certain limits. Moreover, the Court’s very modest award of damages can only be characterized as a win for the government – as was in fact recognized today by the Home Secretary in her reaction to the judgment. It is thus particularly ironic, if unsurprising, to see other politicians indulge in some European Court-bashing, like the Shadow Home Secretary, who stated that the judgment makes a mockery of the concept of human rights and would horrify most reasonable people. Far from it. It can horrify only those people who haven’t actually read it.