Resolution CM/ResDH(2013)114

A and others against the United Kingdom

Execution of the judgment of the European Court of Human Rights

(Application No. 3455/05, judgment of 19 February 2009, Grand Chamber judgment)

(Adopted by the Committee of Ministers on 6 June 2013 at the 1172nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court( see document DH-DD(2013)413 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights

Action Report

A and Others v the United Kingdom [2009] ECHR 301 (application No. 3455/05)

Updated information submitted by the United Kingdom Government on 29 June 2012 and 28 March 2013

Case summary

- Part 4 of the Anti-terrorism, Crime and Security Act 2001 (the 2001 Act) allowed the detention pending deportation of foreign nationals even if removal was not currently possible if 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 involved with international terrorism linked with Al Qa ’ ida. A number of individuals subject to the powers appealed to the European Court of Human Rights.

- The Court held unanimously that there had been:

- The Court made awards under Article 41 (just satisfaction) which were substantially lower than those which it had made in past cases of unlawful detention, in view of the fact that the detention scheme was devised in the face of a public emergency and as an attempt to reconcile the need to protect the United Kingdom public against terrorism with the obligation not to send the applicants back to countries where they faced a real risk of ill-treatment.

Individual Measures

- The just satisfaction award was paid in May 2009; evidence has been previously provided.

- The just satisfaction paid to the eighth applicant was paid into a bank account that is subject to financial sanctions under the Al-Qaida and Taliban (United Nations Measures Order) 2006. However, the applicant can be authorised access to the funds in his bank account through a special licensing scheme operated by HM Treasury. Details of current financial sanctions and the licensing scheme are available online at : http://www.hm-treasury.gov.uk/fin_sanctions_ i ndex.htm

- Decisions made by HM Treasury on accessing funds which are subject to the licensing scheme can be challenged in the courts, through judicial review proceedings under domestic law [1] .

- The operation of the licensing regime reflects developments in international and European law. The Treasury reports to Parliament quarterly on the operation of the asset freezing scheme, including on licensing activity.

- Part 4 of the 2001 Act was repealed in 2005. The applicants are no longer detained under these powers.

- No further individual measure appears to be necessary.

General Measures

- Derogation under Article 15 of the European Convention: The United Kingdom authorities withdrew the notice of derogation on 16 March 2005.

- Violation of Article 5§1 : The detention regime under Part 4 of the 2001 Act was repealed and replaced with a regime of control orders under the Prevention of Terrorism Act 2005 (the 2005 Act), which came into force in March 2005. The 2005 Act was itself repealed on 15 December 2011 by the Terrorism Prevention and Investigation Measures (TPIM) Act 2011 (the 2011 Act), which replaced control orders with TPIM notices. The 2005 Act can be found at http://www.legislation. g ov.uk/ukpga/2005/2/contents and the 2011 Act at http://www.legislation. g ov.uk/ukpga/2011/23/contents

- The TPIM regime, like the control order regime before it, operates regardless of nationality. The TPIM powers are subject to renewal every five years by Parliament.

- No further general measures appear necessary in respect of this violation.

- Violation of Article 5§4: The Special Immigration Appeals Commission (SIAC) was set up by the Special Appeals Commission Act 1997. Although Part 4 of the 2001 Act has been repealed, SIAC continues to hear appeals related to certain immigration decisions as defined in the Nationality, Immigration and Asylum Act 2002 or certain decisions to deprive individuals of their British citizenship.

- The TPIM regime, which relates to persons reasonably believed to be involved in terrorism-related activity, also involves the use of “closed material” and the presence of “special advocates”. The court procedures under the 2011 Act were modeled on the SIAC procedures.

- In Secretary of State for the Home Department v AF & Others [2009] UKHL 28 (“AF (No. 3)”) , a control order case, the Law Lords followed the Grand Chamber ’ s decision in A & Others , finding that “the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation those allegations. Provided that this requirement is satisfied there can be a fair trial ... ” (§59).

- The question of how much information to disclose is decided in the context of litigation before the domestic courts, following the principles laid down in AF (No. 3) . See, for example, Secretary of State for the Home Department v AS [2009] EWHC 2564 (Admin); Secretary of State for the Home Department v CE [2011] EWHC 3159 (Admin); AH v Secretary of State for the Home Department [2011] EWCA Civ 787; and AN, AE & AF v Secretary of State for the Home Department [2010] EWCA Civ 869 . The UK ’ s domestic courts are thus applying the judgment in A and others v the United Kingdom in other proceedings as they consider necessary.

- This case law, which is legally binding on the Secretary of State, guides her approach in conducting disclosure exercises.

- Within the UK there are also avenues by which any concerns about the use of closed material procedures can be raised in public, including to the Independent Reviewer of Terrorism Legislation and to Parliamentary Select Committees such as the Home Affairs Select Committee and the Joint Committee on Human Rights.

- Consequently, the UK Authorities ’ assessment is that no further general measures are necessary in respect of this violation.

- Violation of Article 5§5: The legal regime which led to this violation (Part 4 of the 2001 Act) is no longer in force.

- No further general measures appear necessary in respect of this violation.

- The judgment was reported in The Times Law Reports on 20/02/2009 and the All England Law Reports at [2009] All ER (D) (203). It was also widely reported on in the British media. It is available via the British and Irish Legal Information Institute ’ s web site by searching case law for [2009] ECHR 301.

- The Government considers that all necessary measures have been taken and the case should be closed.

[1] Lord Alton of Liverpool and others v Secretary of State for the Home Department [2008] EWCA Civ 443, para 43.