EHRM, 19-02-2009, nr. 3455/05

The first applicant was born in a Palestinian refugee camp in Jordan, is stateless, and was granted indefinite leave to remain in the United Kingdom in 1997. On 17 December 2001 the first applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. On 18 December 2001 a deportation order was made on the same grounds.

The first applicant was taken into detention on 19 December 2001. He subsequently appealed to SIAC against certification and the decision to make a deportation order. On 24 July 2002 he was transferred to Broadmoor Secure Mental Hospital.

The first applicant and his representatives were served with the Secretary of State's ‘open’ material, including a police report which showed that large sums of money had moved through the four bank accounts in his name. SIAC and the special advocate instructed on behalf of the first applicant were in addition presented with ‘closed’ evidence. The first applicant gave oral evidence to SIAC, assisted by an interpreter and called one witness to testify to his good character. He also filed four medical reports concerning his mental health. SIAC observed in its judgment of 29 October 2003:

In accordance with the terms of the 2001 Act, the first applicant's case was reviewed by SIAC six months later. In its judgment of 2 July 2004 SIAC found that:

SIAC reviewed the case again on 15 December 2004 and again found that the certificate should be maintained.

The second applicant is a citizen of Morocco born on 28 February 1963. He entered the United Kingdom as a visitor in 1985 and was granted leave to remain as a student. On 21 June 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which marriage subsequently broke down. In 1990 and again in 1997 he applied for naturalisation, but no decision was made on those applications. In 2000 he remarried another British citizen, with whom he has a child.

On 17 December 2001 the second applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. A deportation order was made on the same date. The second applicant was taken into detention on 19 December 2001. He appealed against the certification and deportation order but, nonetheless, elected to leave the United Kingdom for Morocco on 22 December 2001. He pursued his appeals from Morocco.

The ‘open’ case against the second applicant was summarised by SIAC in its judgment of 29 October 2003 as follows:

SIAC continued by explaining the findings it had made against the applicant:

The third applicant is of Tunisian nationality, born in 1963 and resident in the United Kingdom from about 1994. He was certified by the Secretary of State on 18 December 2001 and detained the following day.

In its judgment of 29 October 2003, dismissing the third applicant's appeal against certification, SIAC observed:

SIAC reached similar conclusions in its periodic reviews of the case on 2 July and 15 December 2004.

The fourth applicant was born in Algeria in 1971 and first entered the United Kingdom in 1994. In May 1997 he was arrested and charged with a number of offences, including a conspiracy to export to Algeria material which it was alleged was to be used for the purposes of terrorism. It was alleged that he was a member of GIA. The case against the applicant was abandoned in March 2000 when a key witness, a Security Service agent, who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the Algerian Government, decided that it was too dangerous for him to give evidence.

In 1998 the fourth applicant married a French national. He became a French citizen in May 2001, although he did not inform the United Kingdom authorities of this. The Secretary of State certified him under section 21 of the 2001 Act on 17 December 2001 and he was detained on 19 December 2001. On 13 March 2002 he left for France, where he was interviewed on arrival by security officials and then set at liberty. Since he had left the United Kingdom, the certificate against him was revoked and the revocation was back-dated to 22 March 2002.

In its judgment of 29 October 2003, SIAC held that the back-dating of the revocation meant that the fourth applicant could not be regarded as having been certified at the time he lodged his appeal and that, therefore, he had no right of appeal. It nonetheless decided to consider the appeal on the basis that this conclusion might be wrong. Since the Secretary of State could not reasonably have known at the time the certificate was issued that the applicant was a French citizen and could safely be removed to France, it could not be said on that ground that the certificate should not have been issued. SIAC therefore continued by assessing the evidence against him:

The fifth applicant was born in Algeria in 1969. In his statement to SIAC he claimed to have developed polio as a child which left him with a permanently weak and paralysed right leg. He was arrested and tortured by the Algerian Government in 1991, whereupon he left Algeria for Saudi Arabia. In 1992 he moved to Pakistan and travelled to Afghanistan on several occasions. In August 1995 he entered the United Kingdom and claimed asylum, alleging in the course of that claim that his leg had been injured by a shell in Afghanistan in 1994. His asylum claim was refused and his appeal against the refusal was dismissed in December 1999. The applicant married a French citizen and had a child with her.

He was certified by the Secretary of State under section 21 of the 2001 Act on 17 December 2001 and detained on 19 December 2001. In its judgment of 29 October 2003, dismissing the fifth applicant's appeal against certification, SIAC observed:

SIAC referred to ‘open’ surveillance reports which showed the applicant to have been in contact with other alleged members of GIA and the GSPC, including at a camp in Dorset in July 1999. Further ‘open’ evidence concerned his ‘unhelpful’ and ‘not altogether truthful’ responses to questioning by officers of the Security Service in July and September 2001. SIAC continued:

On 22 April 2004, because of concerns about his health, the fifth applicant was released from prison on bail on strict conditions, which amounted to house arrest with further controls. In its review judgment of 2 July 2004, SIAC held:

On 15 December 2004, SIAC again reviewed the case and decided that the certificate should be maintained.

The sixth applicant was born in Algeria in 1967 and was resident in the United Kingdom from 1989. The Secretary of State issued a certificate against him on 17 December 2001 and he was taken into detention on 19 December 2001.

In its judgment of 29 October 2003 SIAC observed as follows:

SIAC then reviewed the open evidence before it regarding the purchase by Abu Doha, assisted by the sixth and seventh applicants, of a number of satellite telephones and other telecommunications equipment to the value of GBP 229,265 and the nature and extent of the connection between the sixth and seventh applicants. It concluded:

SIAC reviewed the case on 2 July 2004 and 28 February 2005 and, on each occasion, decided that there were still grounds for maintaining the certificate.

The seventh applicant was born in Algeria in 1971 and apparently entered the United Kingdom using false French identity papers in or before 1994. On 7 December 2001 he was convicted of a number of driving offences and sentenced to four months' imprisonment. He was certified by the Secretary of State on 5 February 2002 and taken into detention pursuant to the certificate as soon as his prison sentence ended on 9 February 2002.

In its judgment of 29 October 2003, SIAC noted that the allegations against the seventh applicant were that he had been a member of the GSPC since 1997 or 1998, and before that a member of the GIA; that his contacts with leading GSPC members in the United Kingdom showed that he was a trusted member of the organisation; and that he had been involved with Abu Doha and the sixth applicant in purchasing telecommunications equipment for use by extremists in Chechnya and Algeria. It further noted that:

SIAC concluded that the open and closed material supported the allegations against the seventh applicant and it dismissed his appeal.

In its review judgments of 2 July and 15 December 2004 SIAC decided that the certificate should be maintained.

The eighth applicant is a Jordanian national, born in Bethlehem in 1960. He arrived in the United Kingdom on 16 September 1993 and claimed asylum. He was recognised as a refugee and granted leave to remain until 30 June 1998. On 8 May 1998 he applied for indefinite leave to remain but the application had not been determined at the time of the coming into force of the 2001 Act.

The eighth applicant was convicted in absentia in Jordan for his involvement in terrorist attacks there and in relation to a plot to plant bombs to coincide with the millennium. He was investigated in February 2001 by anti-terrorism police officers in connection with a plot to cause explosions at the Strasbourg Christmas market in December 2000, but no charges were brought against him. When the 2001 Act was passed he went into hiding. He was arrested on 23 October 2002 and was immediately made the subject of a section 21 certificate and taken into detention. On the same date a deportation order was made against him.

In its judgment of 8 March 2004, dismissing the eighth applicant's appeal against certification, SIAC observed as follows:

SIAC then summarised the open case against the applicant, which was that he had associated with and acted as spiritual adviser to a number of individuals and groups linked with al'Qaeda. He held extreme and fundamentalist views and had been reported as having, in his speeches at a London mosque, given his blessing to the killing of Jews and Americans, wherever they were. SIAC concluded:

The ninth applicant is Algerian, born in 1972. In 1991 he left Algeria for Afghanistan, where he taught Arabic in a refugee camp. He claimed asylum in the United Kingdom in 1993. In 1994 he was granted leave to remain for four years and in 2000 he was granted indefinite leave to remain, on the basis that he was to be regarded as a refugee. On four occasions, the last in May 1998, the applicant was arrested and released without charge. The first three arrests related to credit card fraud. The arrest in May 1998 related to alleged terrorist activities and the applicant was subsequently paid compensation by the police for false arrest.

The ninth applicant was certified by the Secretary of State and made the subject of a deportation order on 22 April 2002. He was detained on the same day. According to the evidence of one of the witnesses for the Secretary of State, he was not certified, with the other applicants, in December 2001 because one of his files had been lost.

In its judgment of 29 October 2003, SIAC noted that the allegations against the ninth applicant were that he was an active supporter of the GSPC and had raised considerable sums of money for it through fraud. There was evidence that the applicant had in the past been found, by customs officers, attempting to enter the United Kingdom by ferry with large amounts of cash and that he had close links with others who had been convicted of credit card fraud. SIAC held that evidence of involvement in fraud did not establish involvement in terrorism. However, it noted that the applicant had been present at a camp in Dorset in the company of the fifth applicant and a number of others suspected of being GSPC supporters and that a telephone bill had been found at his house at the time of his arrest in the name of Yarkas, who had been arrested in Spain in November 2001 due to his alleged links with al'Qaeda. The applicant had given evidence but had not been a convincing witness and had not given a credible explanation for the foregoing. The closed evidence supported the Secretary of State's allegations and SIAC therefore dismissed the applicant's appeal against certification.

In its review judgments of 2 July 2004 and 15 December 2004, SIAC held that the certificate was properly maintained.

The tenth applicant is an Algerian national. Following a bomb explosion in Algeria, his left hand was amputated at the wrist and his right arm was amputated below the elbow. In 1999 he travelled to the United Kingdom, via Abu Dhabi and Afghanistan, and claimed asylum. His claim was refused on 27 February 2001. He was then in custody, having been arrested on 15 February 2001 and charged with possession of articles for suspected terrorist purposes, conspiracy to defraud and conspiracy to make false instruments. At the time of his arrest he was found to have in his possession approximately 40 blank French driving licences, identity cards and passports, a credit card reader, laminators and an embossing machine. The charges were not, however, proceeded with and he was released on 17 May 2001.

On 14 January 2003 the Secretary of State issued a certificate against him under section 21 of the 2001 Act and he was taken into detention. A deportation order was made against him on the same day.

In its judgment of 27 January 2004 SIAC noted that the essence of the case against the tenth applicant was that since his arrival in the United Kingdom he had been closely associated with a network of extremists formerly led by Abu Doha (see paragraph 26 above). In particular, it was alleged that he had provided logistical support in the form of false documentation and money raised through credit card fraud. He had spent a lot of time at the Finsbury Park Mosque, a known centre of Islamist extremism, and was alleged to have attended a meeting there in June 2001 at which threats were made against the G8 summit in Genoa.

The applicant submitted a written statement on 28 June 2003 in which he denied the allegations against him. He did not, however, participate in the hearing of his appeal, as SIAC explained in its judgment:

SIAC found that there was ample evidence to support the view that the applicant was involved in fraudulent activities. The evidence before it, most of it closed, was sufficient to establish that he was doing it to raise money for terrorist causes and to support those involved in terrorism. It therefore dismissed the appeal against certification.

SIAC reached similar decisions in its review judgments of 4 August 2004 and 16 February 2005. In the latter judgment, it noted that although the applicant had been transferred to Broadmoor Secure Mental Hospital because of mental health problems, that made no difference to the assessment of the risk to national security which he would pose if released.

The eleventh applicant is an Algerian national. He entered the United Kingdom in February 1998, using a false Italian identity card, and claimed asylum the following week. While his claim was pending, in July 2001, he travelled to Georgia using a false French passport and was deported back to the United Kingdom, where he was informed that his travel outside the United Kingdom had terminated his asylum claim. He made a second claim for asylum, which was refused on 21 August 2001. The applicant absconded. He was arrested on 10 October 2001 and held in an Immigration Detention centre, from which he absconded in February 2002. He was rearrested on 19 September 2002 and detained at Belmarsh Prison under immigration law provisions.

On 2 October 2003 the Secretary of State certified him as an international terrorist under section 21 of the 2001 Act and made a deportation order against him on grounds of national security.

In its judgment of 12 July 2004, dismissing the eleventh applicant's appeal against certification, SIAC set out the open case against him. It was alleged that he was an established and senior member of the Abu Doha group (see paragraph 26 above). In July 2001 he had attempted to travel to Chechnya and, when arrested by the Georgian police, he had been found in possession of telephone numbers associated with a senior member of the Abu Doha group and a named member of the GSPC, who was known to be involved in fundraising for the Chechen Mujahaddin. He was alleged to have provided money and logistical support to a North African extremist Islamist network based in Pakistan and Afghanistan, with links to al'Qaeda, and to have assisted members of the Abu Doha group in travelling to Afghanistan, Pakistan and Chechnya. He had lived at the Finsbury Park Mosque for over a year in 1999/2000. He was very security conscious and during a trip to St Albans in September 2001 he had taken measures to avoid being followed. When he was arrested in September 2002 he was found in possession of a false Belgian passport bearing the photograph of a senior member of the Abu Doha group. He was alleged to have been heavily involved in the supply of false documents and the fraudulent use of cheque books and credit cards.

The applicant filed a written statement in which he denied being an international terrorist. He admitted that he had travelled to Afghanistan in 1999 and that he had attempted to go to Chechnya in 2001, but claimed that his interest in these countries was no more than that shown by many devout Muslims. He refused to participate in the hearing of his appeal or to be represented by a lawyer, in protest at the fundamental unfairness of the procedure. In view of the applicant's position, the Special Advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session.

In dismissing the applicant's appeal, SIAC held as follows:

SIAC continued by noting the inconsistencies in the applicant's various accounts of his trips to Afghanistan, Georgia and Dubai and his failure to deal with the Secretary of State's allegations that he had associated with various members of the Abu Doha group, identified by name. SIAC continued:

The applicants stressed that each was in the United Kingdom because the opportunity of a safe haven in his own country or elsewhere was denied to him. The first applicant was a stateless Palestinian and had nowhere else to go. Several had experienced torture before coming to the United Kingdom. Under the 2001 Act they were put in the position of having to choose between conditions of detention which they found intolerable and the risk of whatever treatment they might have to suffer if they consented to deportation. Moreover, their previous experiences and pre-existing mental and physical problems made them particularly vulnerable to the ill effects of arbitrary detention. The discrimination they suffered, since only foreign nationals were subject to detention under the 2001 Act, compounded their anguish.

The high security conditions of detention, in Belmarsh Prison and Broadmoor Hospital, were inappropriate and damaging to their health. More fundamentally, however, the indeterminate nature of the detention, with no end in sight, and its actual long duration gave rise to abnormal suffering, in excess of that inherent in detention. This was compounded by other unusual aspects of the regime, such as the secret nature of the evidence against them. The fact that the indifference of the authorities to the applicants' situation was sanctioned by Parliamentary statute did not mitigate their suffering.

Taken cumulatively, these factors caused the applicants an intense degree of anguish. The medical evidence and reports of the CPT and group of consultant psychiatrists (see paragraphs 101 and 76 above) demonstrated that the detention regime also harmed or seriously risked harming all of them and, in the case of the first, fifth, seventh and tenth applicants, did so extensively.

The applicants claimed that SIAC's power to grant bail did not effectively function during the period when they were detained: first, because the scope of the remedy was jurisdictionally unclear; secondly, because the procedure was subject to delay; thirdly, because the threshold for granting bail was too high. An applicant for bail was required to demonstrate an ‘overwhelming likelihood’ that his continued detention would lead to a physical or mental deterioration, such as to constitute inhuman and degrading treatment contrary to Article 3. The jurisdiction was described as ‘exceptional’, requiring the ‘circumstances to be extreme’. Even then, the only available remedy was to substitute house arrest for detention (see paragraph 78 above).

The Government denied that the applicants' rights under Article 3 had been infringed. They pointed out that SIAC and the Court of Appeal had rejected the applicants' complaints under Article 3 and that the House of Lords had not found it necessary to determine them (see paragraphs 15, 16 and 22 above).

Detention without charge was not in itself contrary to Article 3 and in many instances it was permitted under Article 5 § 1. The detention was indeterminate but not indefinite. The legislation remained in force for only five years and was subject to annual renewal by both Houses of Parliament. Each applicant's detention depended on his individual circumstances continuing to justify it, including the degree of threat to national security which he represented and the possibility to deport him to a safe country, and was subject to review every six months by SIAC. Each applicant was informed of the reason for the suspicion against him and given as much of the underlying evidence as possible and provided with as fair a procedure as possible to challenge the grounds for his detention. Moreover, SIAC was able to grant bail if necessary. The applicants were not, therefore, detained without hope of release: on the contrary there was the opportunity to apply for release together with mandatory review by the court to ensure detention remained both lawful and proportionate in all the circumstances. It also remained open to the applicants to leave the United Kingdom, as the second and fourth applicants chose to do.

The applicants were judged to pose a serious threat to national security and were accordingly held in high security conditions, which were not inhuman or degrading. Each was provided with appropriate treatment for his physical and mental health problems and the individual circumstances of each applicant, including his mental health, were taken into account in determining where he should be held and whether he should be released on bail. A special unit was created at HMP Woodhill of which the applicants refused to make use (see paragraph 71 above).

To the extent that the applicants relied upon their individual conditions of detention and their personal circumstances, they had not exhausted domestic remedies because they had not made any attempt to bring the necessary challenges. Any specific complaint about the conditions of detention could have been the subject of separate legal challenge. The prison authorities were subject to the requirements of the 1998 Act (see paragraph 94 above) and had an obligation under section 6(1) to act compatibly with the Article 3 rights of the applicants in their custody. Insofar as the applicants' complaints under Article 3 were based on the indeterminate nature of their detention, this was provided for by primary legislation (Part 4 of the 2001 Act), and Article 13 did not import the right to challenge in a domestic court a deliberate choice expressed by the legislature.

The Court observes that the second applicant was placed in detention under Part 4 of the 2001 Act on 19 December 2001 and that he was released on 22 December 2001, following his decision voluntarily to return to Morocco (see paragraph 35 above). Since he was, therefore, detained for only a few days and since there is no evidence that during that time he suffered any hardship beyond that inherent in detention, his complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

Since Article 13 requires the provision of a domestic remedy in respect of ‘arguable complaints’ under the Convention (see, for example, Ramirez Sanchez v. France [GC], no. 59450/00, § 157, ECHR 2006-IX), it follows that the second applicant's complaint under Article 13 is also manifestly ill-founded.

Both these complaints by the second applicant must therefore be declared inadmissible.

The Court notes the Government's assertion that there was a remedy available to the applicants under the 1998 Act, which they neglected to use. However, since the applicants complain under Article 13 that the remedies at their disposal in connection with their Article 3 complaints were ineffective, the Court considers that it is necessary to consider the Government's objection concerning non-exhaustion together with the merits of the complaints under Articles 3 and 13.

The Court considers that, save those of the second applicant, the applicants' complaints under Articles 3 and 13 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.

The applicants objected that before the domestic courts the Government had not sought to argue that they were detained as ‘person[s] against whom action is being taken with a view to deportation or extradition’, but had instead relied on the derogation under Article 15. In these circumstances, the applicants contended that it was abusive and contrary to the principle of subsidiarity for the Government to raise a novel argument before the Court and that they should be stopped from so doing.

In the event that the Court considered that it could entertain the Government's submission, the applicants emphasised that the guarantee in Article 5 was of fundamental importance and exceptions had to be strictly construed. Where, as in their case, deportation was not possible because of the risk of treatment contrary to Article 3 in the receiving country, Article 5 § 1(f) would not authorise detention, irrespective of whether the individual posed a risk to national security. Merely keeping the possibility of deportation under review was not ‘action … being taken with a view to deportation’; it was action, unrelated to any extant deportation proceedings, that might make the deportation a possibility in the future. Detention pursuant to such vague and non-specific ‘action’ would be arbitrary. Moreover, it was clear that during the periods when the applicants' cases were being considered by SIAC on appeal (July 2002-October 2003), the Government's position was that they could not be deported compatibly with Article 3 and that no negotiations to effect deportation should be attempted with the proposed receiving States. As a matter of fact, therefore, the Government were not keeping the possibility of deporting the applicants ‘under active review’.

The applicants further contended that it was abusive of the Government, so late in the proceedings before the Grand Chamber, to challenge the House of Lords' decision quashing the derogation. In the applicants' view, it would be inconsistent with Article 19 and the principle of subsidiarity for the Court to be asked by a Government to review alleged errors of fact or law committed by that Government's own national courts. The Government's approach in challenging the findings of its own supreme court about legislation which Parliament had chosen to repeal aimed to limit the human rights recognised under domestic law and was thus in conflict with Article 53 of the Convention. Since the legislation had been revoked and the derogation withdrawn, the Government were in effect seeking to obtain from the Court an advisory opinion to be relied on potentially at some later stage. To allow the Government to proceed would impact substantially on the right of individual petition under Article 34 by deterring applicants from making complaints for fear that Governments would try to upset the decisions of their own supreme courts.

In the event that the Court decided to review the legality of the derogation, the applicants contended that the Government should not be permitted to rely on arguments which they had not advanced before the domestic courts. These included, first, the contention that it was justifiable to detain non-national terrorist suspects while excluding nationals from such measures, because of the interest in cultivating loyalty amongst Muslim citizens, rather than exposing them to the threat of detention and the risk that they would thereby become radicalised and, secondly, the argument that the use of detention powers against foreign nationals freed up law enforcement resources to concentrate on United Kingdom nationals (see paragraph 151 below). Since the Government was seeking to introduce these justifications for the derogation which were never advanced before the domestic courts, the Court was being asked to act as a first-instance tribunal on highly controversial matters.

Again, if the Court decided to examine the legality of the derogation, there was no reason to give special deference to the findings of the national courts on the question whether there was an emergency within the meaning of Article 15. In the applicants' submission, there were no judicial precedents for recognising that an inchoate fear of a terrorist attack, which was not declared to be imminent, was sufficient. All the examples in the Convention jurisprudence related to derogations introduced to combat ongoing terrorism which quite clearly jeopardized the entire infrastructure of Northern Ireland or the South-East of Turkey. The domestic authorities were wrong in interpreting Article 15 as permitting a derogation where the threat was not necessarily directed at the United Kingdom but instead at other nations to which it was allied.

In any event, the enactment of Part 4 of the 2001 Act and the power contained therein to detain foreign nationals indeterminately without charge was not ‘strictly required by the exigencies of the situation’, as the House of Lords found. The impugned measures were not rationally connected to the need to prevent a terrorist attack on the United Kingdom and they involved unjustifiable discrimination on grounds of nationality. SIAC — which saw both the closed and open material on the point — concluded that there was ample evidence that British citizens posed a very significant threat. There could be no grounds for holding that the fundamental right of liberty was less important for a non-national than a national. Aliens enjoyed a right of equal treatment outside the context of immigration and political activity, as a matter of well established domestic, Convention and public international law. There were other, less intrusive, measures which could have been used to address the threat, for example, the use of control orders as created by the Prevention of Terrorism Act 2005; the creation of additional criminal offences to permit for the prosecution of individuals engaged in preparatory terrorist activity; or the lifting of the ban on the use of material obtained by the interception of communications in criminal proceedings.

The Government contended that States have a fundamental right under international law to control the entry, residence and expulsion of aliens. Clear language would be required to justify the conclusion that the Contracting States intended through the Convention to give up their ability to protect themselves against a risk to national security created by a non-national. As a matter of ordinary language, ‘action being taken with a view to deportation’ covered the situation where a Contracting State wished to deport an alien, actively kept that possibility under review and only refrained from doing so because of contingent, extraneous circumstances. In Chahal, cited above, a period of detention of over six years, including over three years where the applicant could not be removed because of an interim measure requested by the Commission, was held to be acceptable under Article 5 § 1(f).

Each applicant was served a Notice of Intention to Deport at the same time as he was certified under the 2001 Act. The second and fourth applicants elected to go to Morocco and France, respectively, and were allowed to leave the United Kingdom as soon as could be arranged, so no issue could arise under Article 5 § 1 in their respect. The possibility of deporting the other applicants was kept under active review throughout the period of their detention. This involved monitoring the situation in their countries of origin. Further, from the end of 2003 onwards the Government were in negotiation with Algeria and Jordan, with a view to entering into memoranda of understanding that the applicants who were nationals of those countries would not be ill-treated if returned.

The Government relied upon the principle of fair balance, which underlies the whole Convention, and reasoned that sub-paragraph (f) of Article 5 § 1 had to be interpreted so as to strike a balance between the interests of the individual and the interests of the State in protecting its population from malevolent aliens. Detention struck that balance by advancing the legitimate aim of the State to secure the protection of the population without sacrificing the predominant interest of the alien to avoid being returned to a place where he faced torture or death. The fair balance was further preserved by providing the alien with adequate safeguards against the arbitrary exercise of the detention powers in national security cases.

In the alternative, the detention of the applicants was not in breach of the Convention because of the derogation under Article 15. There was a public emergency threatening the life of the nation at the relevant time. That assessment was subjected to full scrutiny by the domestic courts. The evidence in support, both open and closed, was examined by SIAC in detail, with the benefit of oral hearings at which witnesses were cross-examined. SIAC unanimously upheld the Government's assessment, as did the unanimous Court of Appeal and eight of the nine judges in the House of Lords. In the light of the margin of appreciation to be afforded to the national authorities on this question, there was no proper basis on which the Court could reach a different conclusion.

The Government explained that they accorded very great respect to the House of Lords' decision and declaration of incompatibility and that they had repealed the offending legislation. Nonetheless, when the decision was made to refer the case to the Grand Chamber, they decided that it was necessary to challenge the House of Lords' reasoning and conclusions, bearing in mind the wide constitutional importance of the issue and the ongoing need for Contracting States to have clear guidance from the Grand Chamber as to the measures they might legitimately take to try to prevent the terrorist threat from materialising. They submitted that the House of Lords had erred in affording the State too narrow a margin of appreciation in assessing what measures were strictly necessary; in this connection it was relevant to note that Part 4 of the 2001 Act was not only the product of the judgment of the Government but was also the subject of debate in Parliament. Furthermore, the domestic courts had examined the legislation in the abstract, rather than considering the applicants' concrete cases, including the impossibility of removing them, the threat each posed to national security, the inadequacy of enhanced surveillance or other controls short of detention and the procedural safeguards afforded to each applicant.

Finally, the House of Lords' conclusion had turned not on a rejection of the necessity to detain the applicants but instead on the absence of a legislative power to detain also a national who posed a risk to national security and was suspected of being an international terrorist. However, there were good reasons for detaining only non-nationals and the Convention expressly and impliedly recognised that distinction was permissible between nationals and non-nationals in the field of immigration. The primary measure which the Government wished to take against the applicants was deportation, a measure permitted against a non-national but not a national. The analogy drawn by the House of Lords between ‘foreigners [such as the applicants] who cannot be deported’ and ‘British nationals who cannot be deported’ was false, because the applicants at the time of their detention were not irremovable in the same way that a British citizen is irremovable. Furthermore, at the relevant time the Government's assessment was that the greater risk emanated from non-nationals and it was legitimate for a State, when dealing with a national emergency, to proceed on a step-by-step basis and aim to neutralise what was perceived as the greatest threat first, thereby also freeing resources to deal with the lesser threat coming from British citizens. In addition, it was reasonable for the State to take into account the sensitivities of its Muslim population in order to reduce the chances of recruitment amongst them by extremists.

Liberty (see paragraph 6 above) submitted that, by reserving before the domestic courts the issue whether the detention was compatible with Article 5 § 1, the Government had deprived the Court of the benefit of the views of the House of Lords and had pursued a course of action which would not be open to an applicant. In any event, the detention did not fall within the exception in Article 5 § 1(f), since Part 4 of the 2001 Act permitted indefinite detention and since there was no tangible expectation of being able to deport the applicants during the relevant time. If the Government were unable to remove the applicants because of their Article 3 rights, they could not properly rely on national security concerns as a basis for diluting or modifying their Article 5 rights. Instead, the proper course was either to derogate from Article 5 to the extent strictly required by the situation or to prosecute the individuals concerned with one of the plethora of criminal terrorist offences on the United Kingdom's statute books, which included professed membership of a proscribed organisation, failure to notify the authorities of suspected terrorist activity, possession of incriminating articles and indirect encouragement to commit, prepare or instigate acts of terrorism (see paragraphs 89 and 95 above).

The Court must start by determining the applicants' first preliminary objection, that the Government should be precluded from raising a defence to the complaints under Article 5 § 1 based on the exception in subparagraph 5 § 1(f), on the ground that they did not pursue it before the domestic courts.

The Court is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden, cited above, § 42). It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, § 47, Series A no. 222; Kolompar v. Belgium, judgment of 24 September 1992, §§ 31–32, Series A no. 235-C).

The Court does not, however, consider that the Government are estopped from seeking to rely on sub-paragraph (f) of Article 5 § 1 to justify the detention. It is clear that the Government expressly kept open, in the text of the derogation and during the derogation proceedings before the domestic courts, the question of the application of Article 5. Moreover, the majority of the House of Lords either explicitly or impliedly considered whether the detention was compatible with Article 5 § 1 before assessing the validity of the derogation (see paragraph 17 above).

The applicants further contended that the Government should not be permitted to dispute before the Court the House of Lords' finding that the derogation was invalid.

The present situation is, undoubtedly, unusual in that Governments do not normally resort to challenging, nor see any need to contest, decisions of their own highest courts before this Court. There is not, however, any prohibition on a Government making such a challenge, particularly if they consider that the national supreme court's ruling is problematic under the Convention and that further guidance is required from the Court.

In the present case, because a declaration of incompatibility under the Human Rights Act is not binding on the parties to the domestic litigation (see paragraph 94 above), the applicants' success in the House of Lords led neither to their immediate release nor to the payment of compensation for unlawful detention and it was therefore necessary for them to lodge the present application. The Court does not consider that there is any reason of principle why, since the applicants have requested it to examine the lawfulness of their detention, the Government should not now have the chance to raise all the arguments open to them to defend the proceedings, even if this involves calling into question the conclusion of their own supreme court.

The Court therefore dismisses the applicants' two preliminary objections.

The Court considers that the applicants' complaints under Article 5 § 1 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.

The Court must first ascertain whether the applicants' detention was permissible under Article 5 § 1(f), because if that subparagraph does provide a defence to the complaints under Article 5 § 1, it will not be necessary to determine whether or not the derogation was valid (see Ireland v. the United Kingdom, judgment of 18 January 1978, § 191, Series A no. 25).

The applicants advanced two main arguments under Article 5 § 4. First, they emphasised that although it was open to them to argue before SIAC, the Court of Appeal and the House of Lords that their detention under Part 4 of the 2001 Act was unlawful under the Convention, the only remedy which they were able to obtain was a declaration of incompatibility under the 1998 Act. This had no binding effect on the Government and the detention remained lawful until legislative change was effected by Parliament. There was thus no court with power to order their release, in breach of Article 5 § 4.

Secondly, the applicants complained about the procedure before SIAC for appeals under section 25 of the 2001 Act (see paragraph 91 above) and in particular the lack of disclosure of material evidence except to special advocates with whom the detained person was not permitted to consult. In their submission, Article 5 § 4 imported the fair trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond. In all the applicants' appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage.

The Government contended that Article 5 § 4 should be read in the light of the Court's established jurisprudence under Article 13, of which it was the lex specialis as regards detention, that there was no right to challenge binding primary legislation before a national court. This principle, together with the system of declarations of incompatibility under the Human Rights Act, reflected the democratic value of the supremacy of the elected Parliament.

On the applicants' second point, the Government submitted that there were valid public interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute. The Court's case-law from Chahal (cited above) onwards had indicated some support for a special advocate procedure in particularly sensitive fields. Moreover, in each applicant's case, the open material gave sufficient notice of the allegations against him to enable him to mount an effective defence.

Justice (see paragraph 6 above) informed the Court that at the time SIAC was created by the Special Immigration Appeals Commission Act 1997, the use of closed material and special advocates in the procedure before it was believed to be based on a similar procedure in Canada, applied in cases before the Security Intelligence Review Committee (‘SIRC’), which considered whether a Minister's decision to remove a permanently resident foreign national on national security grounds was well-founded. However, although the SIRC procedure involved an in-house counsel with access to the classified material taking part in ex parte and in camera hearings to represent the appellant's interests, it differed substantially from the SIAC model, particularly in that it allowed the special advocate to maintain contact with the appellant and his lawyers throughout the process and even after the special advocate was fully apprised of the secret information against the appellant.

In contrast, the SIAC procedures involving closed material and special advocates had attracted considerable criticism, including from the Appellate Committee of the House of Lords, the House of Commons Constitutional Affairs Committee, the Parliamentary Joint Committee on Human Rights, the Canadian Senate Committee on the Anti-Terrorism Act, and the Council of Europe Commissioner for Human Rights. Following the judgment of the House of Lords in December 2004, declaring Part 4 of the 2001 Act incompatible with Articles 5 and 14 of the Convention, the House of Commons Constitutional Affairs Committee commenced an inquiry into the operation of SIAC and its use of special advocates. Among the evidence received by the Committee was a submission from nine of the thirteen serving special advocates. In the submission, the special advocates highlighted the serious difficulties they faced in representing appellants in closed proceedings due to the prohibition on communication concerning the closed material. In particular, the special advocates pointed to the very limited role they were able to play in closed hearings given the absence of effective instructions from those they represented.

The Court notes that Article 5 § 4 guarantees a right to ‘everyone who is deprived of his liberty by arrest or detention’ to bring proceedings to test the legality of the detention and to obtain release if the detention is found to be unlawful. Since the second and fourth applicants were already at liberty, having elected to travel to Morocco and France respectively, by the time the various proceedings to determine the lawfulness of the detention under the 2001 Act were commenced, it follows that these two applicants' complaints under Article 5 § 4 are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, § 45, Series A no. 182) and must be declared inadmissible.

The Court considers that the other applicants' complaints under this provision raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.

The applicants submitted that monetary just satisfaction was necessary and appropriate. When assessing quantum, guidance could be obtained from domestic court awards in respect of unlawful detention and also from awards made by the Court in past cases (they referred, inter alia, to Perks and Others v. the United Kingdom, nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95, judgment of 12 October 1999, where GBP 5,500 was awarded in respect of six days' unlawful imprisonment, and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1995, Reports 1997-III, where the applicants were awarded the equivalent of 17,890 pounds sterling (GBP) and GBP 16,330, respectively, in relation to periods of 13 and 12 months' imprisonment for refusing to perform military service).

The first applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005, a period of three years and 83 days, and the consequent mental suffering, including mental illness. He submitted that the award should in addition take account of the suffering experienced by his wife and family as a result of the separation and the negative publicity. He proposed an award of GBP 234,000 to cover non-pecuniary damage. In addition he claimed approximately GBP 7,500 in pecuniary damages to cover the costs of his family's visits to him in detention and other expenses.

The third applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 230,000 for non-pecuniary damages, together with pecuniary damages of GBP 200 travel costs, incurred by his wife, and a sum to cover his lost opportunity to establish himself in business in the United Kingdom.

The fifth applicant claimed compensation for his detention between 19 December 2001 and 22 April 2004, his subsequent house arrest until 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 240,000 for non-pecuniary damages, together with pecuniary damages of GBP 5,500, including travel and child-minding costs incurred by his wife and money sent by her to the applicant in prison.

The sixth applicant claimed compensation for his detention between 19 December 2001 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 217,000 for non-pecuniary damages, together with pecuniary damages of GBP 51,410, including his loss of earnings as a self-employed courier and travel costs incurred by his wife.

The seventh applicant claimed compensation for his detention between 8 February 2002 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 197,000 for non-pecuniary damages. He did not make any claim in respect of pecuniary damage.

The eighth applicant claimed compensation for his loss of liberty between 23 October 2002 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 170,000 for non-pecuniary damages, together with pecuniary damages of GBP 4,570, including money sent to him in prison by his wife and her costs of moving house to avoid unwanted media attention.

The ninth applicant claimed compensation for his loss of liberty between 22 April 2002 and 11 March 2005, and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 215,000 for non-pecuniary damages, together with pecuniary damages of GBP 7,725, including money he had to borrow to assist his wife with household expenses, money sent to him in prison by his wife and her travel expenses to visit him. He also asked for a sum to cover his lost opportunity to establish himself in business in the United Kingdom.

The tenth applicant claimed compensation for his loss of liberty between 14 January 2003 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 144,000 for non-pecuniary damages, together with pecuniary damages of GBP 2,751, including the loss of a weekly payment of GBP 37 he was receiving from the National Asylum Support Service prior to his detention and the cost of telephone calls to his legal representatives.

The eleventh applicant claimed compensation for his loss of liberty between 2 October 2003 and 11 March 2005 and the consequent mental suffering. He proposed a figure of GBP 95,000 for non-pecuniary damages but did not claim any pecuniary damages.

The Government, relying on the Court's judgment in McCann and Others v. the United Kingdom, judgment of 27 September 1995, § 219, Series A no. 324, contended that, as a matter of principle, the applicants were not entitled to receive any form of financial compensation because they were properly suspected, on objective and reasonable grounds, of involvement in terrorism and had failed to displace that suspicion.

The Government pointed out that Part 4 of the 2001 Act was passed and the derogation made in good faith, in an attempt to deal with what was perceived to be an extremely serious situation amounting to a public emergency threatening the life of the nation. The core problem with the detention scheme under the 2001 Act, as identified by SIAC and the House of Lords, was that it did not apply to United Kingdom as well as foreign nationals. Following the House of Lords' judgment, urgent consideration was given to the question what should be done with the applicants in the light of the public emergency and it was decided that a system of control orders should be put in place. Against this background, it could not be suggested that the Government had acted cynically or in flagrant disregard of the individuals' rights.

In addition, the Government submitted that no just satisfaction should be awarded in respect of any procedural violation found by the Court (for example, under Article 5 §§ 4 or 5), since it was not possible to speculate what would have happened had the breach not occurred (Kingsley v. the United Kingdom [GC], no. 35605/97, ECHR 2002-IV; Hood v. the United Kingdom, no. 27267/95, ECHR 1999-I).

In the event that the Court did decide to make a monetary award, it should examine carefully in respect of each head of claim whether there was sufficient supporting evidence, whether the claim was sufficiently closely connected to the violation and whether the claim was reasonable as to quantum.

The Court recalls, first, that it has not found a violation of Article 3 in the present case. It follows that it cannot make any award in respect of mental suffering, including mental illness, allegedly arising from the conditions of detention or the open-ended nature of the detention scheme in Part 4 of the 2001 Act.

It has, however, found violations of Article 5 §§ 1 and 5 in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants and a violation of Article 5 § 4 in respect of the first, third, fifth and tenth applicants. In accordance with Article 41, it could, therefore, award these applicants monetary compensation, if it considered such an award to be ‘necessary’. The Court has a wide discretion to determine when an award of damages should be made, and frequently holds that the finding of a violation is sufficient satisfaction without any further monetary award (see, among many examples, Nikolova, cited above, § 76). In exercising its discretion the Court will have regard to all the circumstances of the case including the nature of the violations found as well as any special circumstances pertaining to the context of the case.

The Court recalls that in the McCann and Others judgment, cited above, § 219, it declined to make any award in respect of pecuniary or non-pecuniary damage arising from the violation of Article 2 of the Convention, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar. It considers that the present case is distinguishable, since it has not been established that any of the applicants has engaged, or attempted to engage, in any act of terrorist violence.

The decision whether to award monetary compensation in this case and, if so, the amount of any such award, must take into account a number of factors. The applicants were detained for long periods, in breach of Article 5 § 1, and the Court has, in the past, awarded large sums in just satisfaction in respect of unlawful detention (see, for example, Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II, or the cases cited by the applicants in paragraph 235 above). 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.

Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that which it has had occasion to make in other cases of unlawful detention. It awards 3,900 euros (EUR) to the first, third and sixth applicants; EUR 3,400 to the fifth applicant; EUR 3,800 to the seventh applicant; EUR 2,800 to the eighth applicant; EUR 3,400 to the ninth applicant; EUR 2,500 to the tenth applicant; and EUR 1,700 to the eleventh applicant, together with any tax that may be chargeable.