ECtHR, XX and Others v. United Kingdom, No. 3455/05, 2009

• 2009
• United Kingdom

Topics

Membership in a terrorist organisation Public security

Legal bases

European Convention on Human Rights

Courts

European Court of Human Rights (ECtHR)

Laws

Right to Liberty Proportionality Security and public order Torture, degrading and inhuman and treatment

Relevant links

• https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-91403%22]}
• https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-2638619-2883392%22]}
• https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-1647%22]}
• https://www.echr.coe.int/Documents/FS_Terrorism_ENG.pdf
• https://www.ejiltalk.org/european-court-decides-a-and-others-v-united-kingdom/

Facts

Following 9/11, the British Government considered that the UK was a particular target for terrorist attacks and would justify derogation to the Convention in time of emergency, under Article 15 of the Convention. The Act implements discrimination between nationals and non-nationals. The eleven applicants (none of them with a British citizenship) could not be deported because there was a risk that each would be ill-treated in his country of origin, in breach of Article 3. The British Government considered that it was necessary to create an extended power permitting the detention of foreign nationals, where the Secretary of State reasonably believed that the person’s presence in the UK was a risk to national security and reasonably suspected that the person was an “international terrorist”. The derogation to Article 15 of the Convention provides power to the British Government to detain foreign nationals certified as “suspected international terrorists” who could not “for the time being” be removed from the UK. The applicants complained before the Court that their indefinite detention in high security conditions amounted to inhuman or degrading treatment.

Legal grounds

Anti-Terrorism, Crime and Security Act 2001 (repealed); Article 3 of the ECHR; Article 5 of the ECHR; Article 6 of the ECHR; Article 14 of the ECHR; Article 15 of the ECHR

Findings

On the detention: no violation On the derogation: violation The Court stressed that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment. However, the Court found that the applicants’ detention had not reached the high threshold of inhuman and degrading treatment for which a violation of Article 3 could be found, because they had been able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act. They also had at their disposal the remedies available to all prisoners under administrative and civil law to challenge conditions of detention. Considering Article 5§1 (right to liberty and security), the Court recalled that it enshrined the protection of the individual against arbitrary interference by the State with his or her right to liberty. However, it was clear from the terms of the derogation that the applicants had been certified and detained because they had been suspected of being “international terrorists”. Internment and preventive detention without charge are incompatible with the fundamental right to liberty, in the absence of a valid derogation under Article 15. However, the Court considered the UK’s derogation had been valid. Considering the “public emergency threatening the life of the nation”, and subsequently justifying the Convention’s derogation, the Court held that a State could not be expected to wait for disaster to strike before taking measures to deal with it, and therefore, it recognised that there had been a public emergency threatening the life of the nation. However, the question whether the measures were strictly required was ultimately a judicial decision, particularly in a case such as the present where the applicants had been deprived of their fundamental right to liberty over a long period of time. The Court found that the derogating measures had been disproportionate in that they had discriminated unjustifiably between national and non-nationals. Indeed, the Court had not been convinced that the threat from non-nationals had been significantly more serious than that from nationals. It followed that there had been a violation of Article 5§1.