ECHR Rules Terrorism justifies closed courts

courtclosedEuropean Court of Human Rights

published: January 15, 2016

Sher and Others v United Kingdom (Application No 5201/11)

Before G. Raimondi, President and Judges P. Hirvelä, L, Bianku, N. Tsotsoria, P. Mahoney, F. Vehabović and Y. Grozev

Section Registrar: F. Elens-Passos

Judgment: October 20, 2015

The right of suspected terrorists to take proceedings to challenge the lawfulness of their detention did not preclude the use of closed court hearings, at which neither the detainee nor his lawyer was present, for the submission of confidential information supporting the authorities’ line of investigation.

The European Court of Human Rights (Judge Vehabović dissenting) so held, inter alia, in determining that there had been no violation of the right of the applicants, Sultan Sher, Mohammed Rizwan Sharif and Mohammed Umer Farooq, to take proceedings to challenge the lawfulness of their detention, as guaranteed by article 5.4 of the European Convention on Human Rights, at hearings for warrants of further detention on expiry of the initial 48 hours permitted under the Terrorism Act 2000 following their arrest as part of a counterterrorism operation. The applicants were detained for a total of 13 days before being released without charge.

THE COURT said that the threat of an imminent terrorist attack had justified restrictions on the applicants’ article 5.4 rights. Terrorism fell into a special category.

Article 5.4 could not preclude the use of a closed court hearing for the submission of confidential sources of information supporting the authorities’ line of investigation. It could not be applied in such a manner as to put disproportionate difficulties in the way of police authorities in taking effective measures to counter organised terrorism.

Moreover, the legal framework under Schedule 8 to the 2000 Act, governing proceedings for warrants of further detention, had set out clear and detailed procedural rules enabling the applicants to know the nature of the allegations against them and, with legal representation, to have the opportunity to refute those allegations and to participate effectively in proceedings concerning their continued detention.

Furthermore, the applicants and their legal advisers had been given reasons for the withholding of certain information. The information to be withheld had been limited to the further inquiries to be conducted and had been submitted to a judge who, in closed session, had been able to ensure that no material had been unnecessarily withheld from the applicants and to determine, in their interests, whether there had been reasonable grounds for believing that their further detention had been necessary.

Indeed, even in the absence of express provision in the relevant law, the judge had had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings. Significantly, the applicants had not requested the appointment of a special advocate.