Revise Policies to Ensure Fair Hearing
February 19, 2009
It’s disappointing that the court was not able to address the issue of detention conditions, given that these had already been condemned by notable experts such as the Committee for the Prevention of Torture.
Judith Sunderland, senior researcher

(London) - The ruling today by the European Court of Human Rights on the United Kingdom's detention policy for foreign terrorism suspects confirms that indefinite detention violates basic rights, Human Rights Watch said.

The court ruled that the previous detention policy violated the European Convention on Human Rights. A and Others v. the United Kingdom concerned 11 foreign citizens who were held in indefinite detention for varying periods of time between December 2001 and March 2005 under Part IV of the 2001 Anti-terrorism, Crime and Security Act.

"The court has reaffirmed unequivocally the fundamental rights to protection from arbitrary detention and to a fair hearing," said Judith Sunderland, senior researcher at Human Rights Watch. "The principles at stake can't be sacrificed even in the name of counterterrorism." 

In November 2001, following the attacks on the United States on September 11, the UK declared a public state of emergency and derogated from (restricted) article 5 of the European Convention to put into place an indefinite detention policy. It was the only European country to do so. Article 5 of the convention guarantees the right to liberty and security of the person and protects individuals against arbitrary detention.

In its ruling today, the European Court deferred to a 2004 ruling in the UK House of Lords that did not challenge the existence of an emergency threatening the life of the nation, but nevertheless found that the policy of indefinite detention was not justified. The Lords said it was disproportionate and discriminated between nationals and non-nationals. The court dismissed the UK government's new argument that the applicants had been detained pending deportation, a permissible ground under the European Convention, finding that the UK government took no steps to deport the persons during their detention. It found that the United Kingdom had violated article 5(1) with respect to nine of the 11 applicants. The other two left the United Kingdom voluntarily.

The court also found that the appeals proceedings against indefinite detention did not give detainees a meaningful opportunity to challenge the lawfulness of their detention. In doing so, the court addressed for the first time the use of special advocates in cases involving sensitive material related to national security. These appeals to the Special Immigrations Appeal Commission (SIAC) involved closed sessions in which the detainees were not allowed to be present, nor see the evidence that was being used against them. The interests of the detainee were represented by a state-appointed special advocate with security clearance, but these special advocates were not allowed to discuss the evidence with the detainee. 

The court upheld the basic position that detainees required a fair hearing, being able to see and comment on the evidence being used to justify their detention. The court said that special advocates could only perform their role effectively when detainees were provided sufficient information about the allegations against them, and able to give instructions to the advocate. Proceedings in which the detention decision was based solely or largely on material not disclosed to the detainee are to be considered unfair. The court found that the United Kingdom had violated article 5(4) in the case of four applicants.

"The court has spoken clearly: secret evidence often means an unfair hearing," said Sunderland. "The UK should revisit the rules governing proceedings wherever special advocates are used, to ensure that individuals have the right to see and comment on the evidence used against them."

Finally, the court upheld the principle that individuals have the right to compensation for unlawful detention, and found that the UK had violated article 5(5) in respect to nine applicants. In awarding a modest amount of compensation, it noted that the individuals had not been convicted of any terrorist offense.

The applicants had also alleged that both the indefinite nature of the detention and the conditions amounted to cruel, inhuman, and degrading treatment within the meaning of article 3 of the convention. The court did not address the issue of conditions, as it determined that the applicants had not used UK domestic procedures to challenge them.  On the issue of the indefinite nature of the detention, the court found no violation of article 3, taking the view that the individuals had been able to challenge their detention. 

"It's disappointing that the court was not able to address the issue of detention conditions, given that these had already been condemned by notable experts such as the Committee for the Prevention of Torture," said Sunderland.