EN LENGUA ESPAÑOLA
CONCLUSIONES Y RECOMENDACIONES
The detention of terrorists in Northern Ireland has given rise to a considerable amount of case law at Strasbourg. In general, the ECtHR has allowed states a considerable margin of appreciation where suspected terrorists are detained.
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Murray v UK (1995): the Court considered two factors tobe in the balance—‘the responsibility of an elected government in a democratic society to protect its citizens and its institutions against threats posed by organised terrorism and…the special problems involved in the arrest and detention of persons suspected of terrorist-linked offences’. Consequently in Murray, despite alleged breaches of Arts 5 and 8 for procedural irregularities in detention and the retention of private documents, no violations were found.
Derogations
Article 15 permits a state to derogate from Art 5 in times of war or other public emergency threatening the life of the nation. Previously, the UK entered a derogation in relation to Art 5(3) in response to the judgment in Brogan v UK (1988).
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Brogan v UK (1988): the ECtHR held that detention of a suspected terrorist on the authority of the Secretary of State (without being brought before an appropriate judicial authority) for four days and six hours under the Prevention of Terrorism (Temporary Provisions) Act 1984 was incompatible with para (3).The UK Government has since implemented Sched 8 to the Terrorism Act 2000, which introduces a judicial element, and the derogation has been withdrawn.
However, the UK entered a new derogation to Art 5(1) in December 2001 in relation to the detention of suspected international terrorists under the recent Anti-Terrorism, Crime and Security Act 2001. This Act provides for an extended power to arrest and detain without the need to be brought before a court. The power will apply where it is intended to remove or deport the suspected terrorist from the UK but where removal or deportation is not for the time being possible (eg, if the person has established that removal to his own country might result in treatment contrary to Art 3 of the Convention, or where a criminal prosecution is unlikely owing to evidential problems). In the circumstances, an ‘indefinite’ period of detention without a ‘lawful’ basis would be likely to breach Art 5(1)(f) and therefore a derogation is required. Paragraph (f) permits the detention of a person with a view to depor tation in circumstances where ‘action is being taken with a view to deportation’, but only where deportation proceedings are prosecuted with due diligence (Chahal v UK (1996)). Considerable concern has been voiced by civil liberties groups at these provisions for indefinite detention without charge and the removal of the historic right to habeas corpus (the right to be brought before a judge). The Government argues that there
are safeguards, in that the Secretary of State is required to issue a certificate indicating his belief that the person’s presence in the UK is a risk to national security and that he suspects the person of being an international terrorist. It is also a temporary provision, which comes into force for an initial period of 15 months and then expires unless renewed by Parliament (this limitation is sometimes referred to as a ‘sunset clause’). See further recent case law in Chapter 5.
Article 6—Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b to have adequate time and facilities for the preparation of his
defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 6 contains the fundamental principle which underpins the ECHR, namely the fair administration of justice. It is the
most commonly raised article. It guarantees, first, access to a court for the determination of a person’s civil rights and obligations or of any criminal charge against him (Golder v UK) and, secondly, procedural fairness in the course of those proceedings.