Communicated on 9 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 27557/18 Abd Ali Hameed Ali AL-WAHEED against the United Kingdom lodged on 11 June 2018

STATEMENT OF FACTS

The applicant, Mr Abd Ali Hameed Ali Al-Waheed, is an Iraqi national who was born in 1963 and lives in Shaibah. He is represented before the Court by Ms S. Malik at Leigh Day Solicitors, a lawyer practising in London.

The facts of the case, as submitted by the applicant, may be summarised as follows.

1 . In the early hours of 11 February 2007 the applicant was in bed at his wife ’ s family home in Basra, south-eastern Iraq, when he heard sounds of vehicles and gunfire outside in the street. British soldiers came into the house and arrested him. They searched the house and in one of the rooms found a partly assembled improvised explosive device (IED). They also found a large quantity of mortar bombs on the roof and on the stairs leading up to the roof of the house.

2 . The soldiers took the applicant to a detention centre in Iraq under the control of British armed forces. On 13 February 2007 his detention was reviewed by an ad hoc Divisional Internment Review Committee (“DIRC”), when a decision was taken to detain him for impera tive reasons of security. On 22 February 2007 his detention was again reviewed by the Committee and a decision was taken to release him on the basis that he was not involved in any insurgent activities. However, he was not released and his detention was reviewed again on 12 or 13 March 2007 a nd then on 21 March 2007. On 27 March 2007 the Committee reviewed his detention and authorised his release. He was released the following day.

3 . On 27 March 2013 the applicant issued a claim for compensation in the High Court against the United Kingdom Ministry of Defence arguing that his detention had been in breach of Articles 5 §§ 1 and 4 of the Convention. His case was one of more than 600 claims brought by Iraqi civilians (known as the Iraq Civilian Litigation) against the Ministry of Defence (see paragraphs 18 - 19 below). The applicant ’ s case was selected as a test case.

4 . At a pre-trial review on 12 June 1014 the applicant conceded that notwithstanding the decision of this Court in Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011, under domestic rules of precedent the courts would be bound to follow the decision of the House of Lords in R (Al Jedda) v. Secretary of State for Defence [2008]1 AC 332, and find that there had been no breach of Article 5 § 1 of the Convention. He applied to have his claim dismissed on that basis, and for a “leapfrog” order to be made to the Supreme Court.

5 . On 17 January 2017 the Supreme Court gave judgment in the applicant ’ s case joined with one other case, Serdar Mohammed . By a majority of seven to two the Supreme Court found in a lengthy and detailed decision reviewing this Court ’ s case law and with particular reference to Hassan v. the United Kingdom ([GC], no. 29750/09, ECHR 2014), that the United Kingdom armed forces had had the power to detain the applicant pursuant to United Nations Security Council Resolution 1546 provided that detention had been “necessary for imperative reasons of security” and that Article 5 § 1 of the Convention should be read so as to accommodate detention pursuant to that power as one of the permissible grounds.

6 . Lord Sumption giving the lead judgment for the majority commented:

“68. I conclude that Hassan v United Kingdom [29750/09] is authority for three propositions which are central to the resolution of these appeals:

(1) The Strasbourg court was concerned in Hassan with the interface between two international legal instruments in the domain of armed conflict outside the territory of a Convention state. This is pre-eminently a domain governed by international legal norms. In that context, the Grand Chamber recognised that international law may provide a sufficient legal basis for military detention for the purposes of article 5, which requires that any detention should be lawful. This is consistent with the court ’ s approach in Medvedyev v France (2010) 51 EHRR 39, in which the adequacy of the legal basis for the detention of the applicant on a Cambodian merchant ship on the high seas by French armed forces was analysed wholly in terms of international law. The particular source of the international law right to detain which was relevant in Hassan was international humanitarian law, specifically the Geneva Conventions. But I see no reason to regard the position as any different in a case where the source of the international law right to detain is a resolution of the UN Security Council under powers conferred by the UN Charter. It does not of course follow from the fact that international law authorises military detention for the purposes of article 5 of the Convention, that it also constitutes a defence to a claim in tort. That depends on other considerations lying wholly in the realm of municipal law, notably the concept of Crown act of state, which are addressed in the Serdar Mohammed case in a separate judgment.

(2) Hassan does not add a notional seventh ground of permitted detention to those listed at (a) to (f) of article 5(1), namely military detention in the course of armed conflict. Its effect is rather to recognise that sub-paragraphs (a) to (f) cannot necessarily be regarded as exhaustive when the Convention is being applied to such a conflict, because their exhaustive character reflects peacetime conditions. This means that where the armed forces of a Convention state are acting under a mandate from the Security Council to use all necessary measures, article 5(1) cannot be taken to prevent them from detaining persons for imperative reasons of security.

(3) The procedural provisions of article 5, in particular article 5(4), may fall to be adapted where this is necessary in the special circumstances of armed conflict, provided that minimum standards of protection exist to ensure that detention is not imposed arbitrarily. The minimum standard of protection is a standard equivalent to that imposed by articles 43 and 78 of the Fourth Geneva Convention. This involves an initial review of the appropriateness of detention, followed by regular reviews thereafter, by an impartial body in accordance with a fair procedure. These are the minimum requirements for protection against arbitrary detention, and nothing in the Grand Chamber ’ s decision in Hassan justifies any departure from them. Indeed, it is clear that in the Court ’ s view, the continuing existence of these procedural obligations in large measure justified reading the six permitted occasions for detention as non-exhaustive in conditions of armed conflict.

...

112. In Al-Waheed I would make the following declarations:

(1) For the purposes of article 5(1) of the European Convention on Human Rights HM armed forces had legal power to detain Mr Al-Waheed pursuant to UN Security Council Resolutions 1546 (2004) in cases where this was necessary for imperative reasons of security.

(2) ECHR article 5(1) should be read so as to accommodate, as permissible grounds, detention pursuant to that power.”

7 . Lord Reed gave a reasoned dissent with which Lord Kerr agreed. Lord Reed indicated:

“234. There are also some matters on which I have reached a different conclusion [to Lord Sumption], in agreement with the courts below: in particular, whether UN Security Council Resolutions ("SCRs") 1546 (2004) and 1890 (2009) should be interpreted as authorising detention in circumstances other than those specified in article 5(1)(a) to (f) of the Convention, and in consequence whether HM Forces were entitled to detain Mr Al-Waheed and Mr Mohammed in such circumstances, pursuant to those SCRs. Having reached that conclusion, I also require to consider whether a right to detain was conferred by international humanitarian law, an issue on which Lord Sumption does not (and does not require to) reach a concluded view. In relation to that issue, I conclude that no right of detention arose under international humanitarian law. I therefore reach the conclusion that Mr Mohammed ’ s detention between 11 April and 4 May 2010, being authorised neither by an SCR nor by international humanitarian law, was in violation of article 5(1).”

8 . Lord Reed then summarised his key conclusions as regards the two appellants (§ 235 of the judgment). As far as the applicant was concerned, his conclusions were as follows:

“(i) Conventional (ie treaty-based) international humanitarian law provides no authority for detention in a non-international armed conflict (paras 243-270 and 274).

(ii) Customary international humanitarian law, in its present state of development, provides no authority for detention in a non-international armed conflict (paras 256 ‑ 257, 271-273 and 275-276).

(iii) For the purpose of applying the European Convention on Human Rights, UN Security Council Resolutions should be interpreted on the basis that there is a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights; that, in the event of ambiguity, the court must choose the interpretation which is most in harmony with the requirements of the Convention; and that it is to be expected that clear and explicit language will be used if the Security Council intends states to take measures which would conflict with their obligations under international human rights law (paras 277 ‑ 289).

(iv) The judgment of the Grand Chamber of the European Court of Human Rights in the case of Hassan v United Kingdom [2014] BHRC 358 should not be interpreted as entailing a departure from that approach (paras 290-300).

(v) The court should depart from the decision of the House of Lords in Al-Jedda v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58; [2008] 1 AC 332, that SCR 1546 imposed an obligation to detain in circumstances other than those listed in sub-paras (a) to (f) of article 5(1) of the Convention, which prevailed over the obligation to comply with the Convention by virtue of article 103 of the Charter of the United Nations (paras 304-305).

(vi) Hassan should not be interpreted as warranting the modification of article 5(1) so as to permit detention in circumstances not falling within sub-paras (a) to (f), in relation to the detention authorised in Iraq by SCR 1546 (2004), as extended by SCRs 1637 (2005) and 1723 (2006) (paras 292-297 and 307-315).

(vii) Interpreting SCR 1546 consistently with the Convention, Mr Al-Waheed ’ s detention by HM Forces was compatible with article 5(1) of the Convention only if he was detained in circumstances falling within sub-paras (a) to (f) (para 316).

...”

9 . Lord Reed went on to expand in detail his reasoning with reference to the case-law of this Court and other international authorities (see §§ 236 ‑ 316). He concluded:

“360. For these reasons, I would have allowed Mr Al-Waheed ’ s appeal and declared that it was legally necessary for his detention to fall within one or more of sub-paragraphs (a) to (f) of article 5(1)...”

10 . The applicant ’ s case was then returned to the High Court for determination of his substantive claim along with three other cases. The High Court held a trial from 13 June 2017 to 13 July 2017 in which it heard from multiple witnesses of fact including the applicant ’ s brother, the soldiers involved in his arrest and expert witnesses, including psychiatrists who had assessed the applicant. It also considered thousands of pages of relevant documents including written reports of the applicant ’ s interrogations during detention.

11 . In a very detailed a nd lengthy judgment given on 14 December 2017, Mr Justice Leggatt applied the Supreme Court ’ s interpretation of Article 5 of the Convention to the applicant ’ s case to decide on his claim for damages. He found as follows:

“ Was Mr Al-Waheed ’ s detention lawful?

693. I have found in part III of this jud gment that, at the time when Mr Al- Waheed was detained in 2007, the internment of any person by a national contingent of the MNF [multi-national force] for security reasons was regulated by CPA [Coalition Provisional Authority] Memorandum No 3, as revised with effect from 27 June 2004. Memorandum 3 was drafted on the basis that there was a power of internment where this was necessary for imperative reasons of security pursuant to UN Security Council Resolution 1546. However, I have found that UN Security Council Resolution 1546 was not part of the domestic law of Iraq and that British forces had no power to intern people for security reasons under Iraqi law. It follows that Mr Al-Waheed ’ s detention was unlawful as a matter of Iraqi law.

694. I have also referred in part II to the decision of the Supreme Court in Mohammed (No 2) v Ministry of Defence [2017] UKSC 2, [2017] AC 821, which addressed how article 5 is to be interpreted and applied in the context of a non ‑ international armed conflict and specifically in Mr Al-Waheed ’ s case. The Supreme Court held that in such a context article 5(1) should be read so as to accommodate, as a permissible ground, detention in accordance with a power of internment in international law conferred by a resolution of the UN S ecurity Council. Hence, article 5(1) permitted UK forces to detain Mr Al-Waheed if this was necessary for imperative reasons of security.

695. In determining whether Mr Al-Waheed ’ s detention was compatible with article 5(1), the court is not conducting a judicial review of an administrative decision, but deciding whether an individual ’ s rights have been infringed. The court must therefore make its own determination of whether Mr Al-Waheed ’ s detention was necessary for imperative reasons of security. Naturally, in making that determination, the court will give ‘ appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice ’ : Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 16 (Lord Bingham). But the judgments of such persons cannot be decisive. Ultimately, it is for the court to decide whether or not there was a violation of Mr Al-Waheed ’ s right not to be arbitrarily detained: see the Huang case, para 11; Belfast City Council v Miss Behavin ’ Ltd [2007] UK HL 19, [2007] 1 WLR 1420, paras 15, 31, 44; E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536, para 13; R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, para 61.

696. Mr Al-Waheed was not the individual who was targeted in the operation in which he was arrested and it is apparent that there was no intelligence linking him to any insurgent group. But he was found in the same house as a partly constructed IED and a substantial quantity of explosives. His presence in the house certainly gave reasonable grounds for suspicion and called for an explanation. In these circumstances there can in my view be no doubt – and it was not disputed at the trial – that his initial arrest and the decision to intern him made on 12 February 2007 were necessary for imperative reasons of security.

697. By 15 February 2007, however, the initial reports that Mr Al-Waheed had been seen in the same room as the IED had been shown to be false. Statements made by Lance Corporal [R.], who was the first soldier to enter the house, and Private P., who was the detaining soldier, made it clear that Mr Al-Waheed was not in the room where the IED was found. Furthermore, a nalysis of a swab taken from Mr Al- Waheed on arrival at Basra Airport had produced a reading of one bar for RDX [a military explosive found in IEDs] – an insignificant amount, which meant that he had not been close to an explosive. Although Lieutenant [F.] had not at that stage been asked to make a further statement that had evidently been considered unnecessary in view of his confirmation that he had not entered the house until after Mr Al-Waheed had been arrested.

698. In addition, Mr Al-Waheed had given an explanation for his presence in the house which was consistent with his innocence. He had explained that he did not live there, that he had only known the owner of the house and suspected bomb-maker, [A.J.], for a few months since his marriage to [A.J.] ’ s sister and that he was present in the house only because he was visiting his new wife who was convalescing there. That explanation was independently su pported by information which Mr Al- Waheed ’ s brother had given to the legal officer when he visited the Basra Airport base to plead for Mr Al-Waheed ’ s release. There was no possibility of collusion between them as Mr Al ‑ Waheed was at that time being held incommunicado.

699. It was certainly appropriate to scrutinise this account and test whether there was any reason to disbelieve Mr Al-Waheed and to think that he was involved in bomb-making. That was done. As detailed above, Mr Al-Waheed was subjected to intensive interrogation following his arrest. By 20 February 2007 the interrogation team had concluded that Mr Al-Waheed was telling the truth and had not been involved in any militant activities and also that he had provided them with all the information that he could.

700. As stated earlier, when Mr Al-Waheed ’ s detention was reviewed by the DIRC on 22 February 2007, the committee voted (by a majority) to release him. I can see nothing wrong with that decision.

701. Mr Al-Waheed should, in consequence, have been released the following day. Who prevented his release and how is unclear, but I have found that a decision was taken by the DIRC at an ad hoc meeting on 24 February 2007 to continue Mr Al ‑ Waheed ’ s internment. I do not consider that there was a reasonable basis for that decision. There had been no relevant change of circumstances since the decision to release Mr Al-Waheed was made two days earlier. In particular, no new information had come to light in the meantime which had not been available to the committee on 22 February 2007. The decision to keep Mr Al-Waheed in custody appears to have been based on a concern of the senior legal officer that the committee may have been misled when it was told that it was now clear that Mr Al-Waheed was not seen in the same room as the IED. However, the committee had not been misled. The only occasion on which the committee was misled was at the first review meeting on 13 February 2007, when it had falsely been told that Mr Al-Waheed was found ‘ messing about ’ with the IED. By the time of the 22 February meeting, it had been established that this report was untrue.

702. Nor did any further evidence emerge subsequently to suggest that Mr Al ‑ Waheed posed a threat to security. To the contrary, the second statement obtained from Lieutenant [F.], which was available to the DIRC on 12 March 2007, merely confirmed that the committee had indeed taken its decision to release Mr Al ‑ Waheed on a correct factual basis. The reasons given on that occasion for keeping Mr Al-Waheed in detention despite this confirmation were misconceived. The first reason recorded in the minutes was that the ordnance found in the house had been sent for forensic testing which might produce evidence to link Mr Al-Waheed to the ordnance. Internment cannot, however, be justified on the basis that, although no evidence exists which implicates the internee in militant activity, such evidence might be obtained in future. The second reason given was that the composition of the DIRC was different in that three members of the committee which had taken the original decision to release Mr Al-Waheed were not present. This reason was even more spurious than the first. No doubt continuity of decision-makers is desirable other things being equal, but the fact that some of the people who previously decided that he ought to be released are not available cannot be a good reason for keeping someone in custody without any evidential basis.

703. I conclude that there were no imperative reasons of security which required Mr Al ‑ Waheed to be kept in detention from 23 February until 28 March 2007. His detention during that period therefore lacked any lawful basis and was contrary to article 5(1).

Lack of procedural safeguards

704. It was also contended on behalf of Mr Al-Waheed that there was a breach of article 5(4) of the Convention because he had no effective means of challenging the lawfulness of his detention. In the light of the decision of the Supreme Court in the Mohammed (No 2) case, that contention is in my view unanswerable. The Supreme Court did not consider the system of review of detention which operated in Mr Al ‑ Waheed ’ s case, as that was not yet in evidence. But the court did consider the system of review operated in Afghanistan, which was similar in relevant respects. The majority agreed with the view of Lord Sumption that the system had two critical failings. These were, first, that it lacked independence and, second, that it made no provision for the participation of the detainee. The same failings are apparent in the procedure adopted in Mr Al-Waheed ’ s case.

Lack of independence

705. The initial decision to authorise internment was made ‘ on the delegated authority of the GOC ’ and the authority to detain or release subsequently lay with the DIRC. As mentioned earlier, the DIRC comprised the General Officer Commanding (GOC), the Chief of Staff, the Chief Intelligence Officer, the Policy Advisor to the GOC and the senior legal officer. Accordingly, rather than being independent of the detaining authority whose decisions it was to review, the DIRC was squarely within the same chain of command and was chaired by the same person who was ultimately responsible for the internment decisions which were under review. This did not provide the institutional guarantees of impartiality which have been held by the Supreme Court to be necessary in the Mohammed (No 2) case.

706. In addition, the Policy Advisor at the relevant time, Ms [W.], who gave evidence at the trial, was an official in the MOD and explained that her role involved managing ‘ [t]he image and reputation of defence ’ and ‘ supporting the media cell in developing responses to questions we might receive about operations ’ – which included responsibility for ensuring that ‘ what was put into these sorts of media lines ... was consistent with Government policy ’ . Ms [W.] very fairly accepted that there was ‘ a potential for tension ’ between her responsibility for media lines and presentation and her involvement in individual detention decisions on the DIRC.

Lack of opportunity for the detainee to participate

707. In the Mohammed (No 2) case Lord Sumption (at para 107) observed that some basic principles must be regarded as essential to any fair process of adjudication. He continued:

‘ In the present context the minimum conditions for fairness were (i) that the internee should be told, so far as possible without compromising secret material, the gist of the facts which are said to make his detention necessary for imperative reasons of security; (ii) that the review procedure should be explained to him; (iii) that he should be allowed sufficient contact with the outside world to be able to obtain evidence of his own; and (iv) that he should be entitled to make representations, preferably in person but if that is impractical then in some other effective manner. ’

Lord Sumption considered it a more debatable question whether an internee should be allowed access to legal advice and assistance but noted that there was no evidence to suggest that the restrictions on access to such assistance imposed by the British authorities in Afghanistan were necessary and that British practice conflicted with the position taken by the United Nations and by the International Committee of the Red Cross.

708. The procedure operated in Iraq at the time of Mr Al-Waheed ’ s internment did not meet any of these minimum conditions for a fair process. In particular:

i) Internees were not even informed after a review of their internment had taken place, let alone beforehand, of the reasons why their internment was considered necessary. As mentioned earlier (see paragraph 608 above), a document disclosed by the MOD, which appears to be a copy of a letter given to Mr Al-Waheed after the review of his internment on 22 February 2007 and which I take to be a standard form of letter issued to internees after decisions to continue their internment were taken, stated only that the DIRC had decided that his continued internment was necessary for imperative reasons of security. Even if the DIRC had taken such a decision (which on that particular occasion it in fact had not), the letter gave no indication of the grounds on which the decision was based. That said, Mr Al ‑ Waheed must certainly have been aware from his interrogation sessions that a partly assembled IED and other ordnance had been found in the house where he was arrested and that he was suspected on that basis of involvement in terrorist activity.

ii) There is no suggestion that the review procedure was explained to internees (or specifically to Mr Al-Waheed).

iii) No opportunity was afforded to internees to obtain or present evidence of their own – albeit that Mr Al-Waheed ’ s brother, when he discovered what had happened, independently and of his own initiative did his best to provide evidence to the British authorities to prove Mr Al-Waheed ’ s innocence.

iv) Most importantly of all, internees were not permitted to attend meetings of the DIRC at which their case was reviewed nor to be represented at such meetings. The only form of representation allowed was to write a letter to the committee, though there is no evidence that Mr Al-Waheed was informed even of that right or given any facility to write a letter and have it translated into English.

v) Mr Al-Waheed was not given access to any legal assistance or advice. Further, as mentioned earlier, internees were specifically prohibited from having access to legal advice during the first 14 days of their detention.

709. The defective nature of the process was recognised at the time. As mentioned earlier, in April 2006 the Provost Martial (Army) [Head of the Military Police] conducted an inspection of the Shaibah detention facility. In his report following this inspection, he identified as a ‘ fundamental flaw ’ in the internment review process the absence of any provision for internees who could not afford to pay for their own legal counsel to obtain legal assistance without payment. The Provost Martial also expressed concern that internees were not given an opportunity to present their case in person to the DIRC. He wrote:

‘ Without these basic safeguards, there is the potential for an illiterate, inarticulate or poor internee to be wrongly held in internment. The inability to present their case to the DIRC remains one of the most frustrating issues for many internees and was raised constantly with PM(A). ’

For these reasons, to the question ‘ Is there a transparent and just process for conducting regular reviews of internment in place? ’ the answer given by Provost Martial in his report was: ‘ No ’ . His report contained the following recommendation:

‘ Make provision for internees and legal advisers to present cases to review bodies. Consider provision of free legal advice for those unable to pay. ’

710. In June 2007 (some three months after Mr Al-Waheed ’ s release) the Provost Martial carried out a further inspection. He observed that there had been ‘ some positive progress ’ in that internees were now interviewed by legal officers who assisted them in understanding the reasons for their internment and sought to explain the results of internment reviews by the DIRC. However, he remained concerned that ‘ basic safeguards are not in place for illiterate, inarticulate or poor internees to represent their cases in a meaningful way ’ . He wrote:

‘ Internees are still not able to represent themselves in person to review bodies and this is exacerbated by the particularly poor standard of translation of legal letters from Arabic into English, submitted by internees. In some cases the grammar and syntax used by the translator is such a “pidgin level” of English so as to render the content of the letter virtually worthless. This substantially undermines the duty of care UK owes to those in internment and reinforces the concerns raised by PM(A) in his last report. ’

711. I conclude that, in addition to the lack of independence of the review committee, there was a further breach of article 5(4) in that Mr Al-Waheed was given no meaningful opportunity to participate in the reviews of his internment and to make representations.

712. These procedural deficiencies did not prevent the DIRC from deciding, after reviewing the evidence at its meeting on 22 February 2007, that the evidence did not show that Mr Al-Waheed ’ s continued detention was necessary for imperative reasons of security and that he should be released. Nor is it possible to know for sure what would have happened subsequently if the review process had been fair and independent. Nevertheless, I think it reasonable to infer that, had a fair and independent review process been in place, Mr Al-Waheed would not have been kept in custody for reasons which were patently bad for a further 33 days after the original decision had been made to release him. ”

12 . The judge concluded that the applicant ’ s arrest and detention from 12 February 2007 to 22 February 2007 had been necessary for imperative reasons of security as there were reasonable grounds for suspicion that the applicant may have been involved in bomb-making and was therefore a threat to security. However, in light of his finding that the review committee decided on 22 February 2007 that the applicant no longer posed a threat to security and should therefore be released and the revocation of that decision the next day for reasons which did not stand scrutiny, he concluded that the applicant had been detained without any legal basis from 23 February 2007 until he was ultimately released on 28 March 2007, a period of thirty three days, stating: “His detention during this period violated Article 5 of the Convention”.

13 . The judge also reviewed in careful detail the applicant ’ s claims under Article 3 in light of the case-law of this Court and found that during his detention the applicant had been subjected to various forms of inhuman and degrading treatment including beating on arrest; harsh interrogation tactics; sensory deprivation and sleep deprivation. He concluded that the treatment of the applicant had been contrary to Article 3 of the Convention.

14 . The judge then considered at length and in light of this Court ’ s jurisprudence whether it would be appropriate to award damages in the applicant ’ s case and the others grouped with it. He found that damages should be awarded commenting:

“ Should damages be awarded in the present cases?

933. In the Greenfield case [2005] UKHL 14, [2005] 1 WLR 673, at para 9, Lord Bingham approved the observations of Lord Woolf MR giving the judgment of the Court of Appeal in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, at paras 52-53 that:

‘ the remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations ... Where an infringement of an individual ’ s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. ’

In making these remarks, Lord Woolf had in mind that in many cases where breaches of Convention rights are alleged the claimant is seeking an order to compel a public body to take or refrain from taking action or to quash an administrative decision of a public body. There are other cases, however, where the claimant is not seeking an essentially public law remedy of this kind and which fall into the category described by Laws LJ as ‘ cases where the violation of the Convention right has an outcome for the claimant which constitutes or is akin to a private wrong ’ (see paragraph 931 above). In these cases, where the violation alleged is not continuing but purely historic, the concern is self-evidently not to bring the infringement of the claimant ’ s human rights to an end as the infringement has already ended. In these cases the only remedy which the court can provide is an award of damages to compensate the claimant for the injury caused by the infringement. The question of compensation is therefore of primary, if not sole, importance. To decline to award damages, or to make an award which affords only partial reparation, would be to deny the claimant an effective remedy, contrary to principle and to the UK ’ s obligation under article 13 of the Convention to afford an effective remedy to everyone whose Convention rights are violated.

934. The present cases all fall into this category. As already discussed, the claimants are seeking compensation for injury caused by the violation of rights which are protected both by the European Convention and by the private law of tort. Where I have found that such violations have occurred, it is necessary in each case to award damages in order to provide an effective remedy and afford just satisfaction to the claimant. In addition, where the violation found consists of unlawful detention in breach of article 5 of the Convention, article 5 itself confers a right to compensation by providing in paragraph 5:

‘ Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. ’ ”

15 . He awarded the applicant damages under the Human Rights Act 1998 in the amount of 30,000 pounds sterling (“GBP”) for the violation of Article 3 and GBP 3,300 for the violation of Article 5.

16 . He explained the calculations as follows:

“ Unlawful detention

978. As with the other claimants, I have found that Mr Al-Waheed ’ s arrest and initial period of detention were lawful. However, I have also held that after the review committee had voted to release him on 22 February 2007 his continued detention for a further 33 days until 28 March 2007 was unlawful and violated article 5 of the Convention. Applying the same rate of £100 per day as in the other cases, Mr Al ‑ Waheed will therefore be awarded damages of £3,300.

...

Conclusion

982. In summary, Mr Al-Waheed is awarded damages under the Human Rights Act for:

i) inhuman and degrading treatment consisting in the beating to which he was subjected following his arrest, in a sum of £15,000;

ii) further inhuman and degrading treatment consisting in ‘ harsh ’ interrogation, sleep deprivation and sensory deprivation, in a total sum of £15,000; and

iii) his unlawful detention for 33 days in a sum of £3,300.”

17 . On 12 December 2007 the House of Lords gave judgment in the case of R (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) ([2007] UKHL 58). In that judgment it found that United Nations Security Council Resolution 1546 and its successor resolutions obliged the United Kingdom to exercise its power of detention where necessary for imperative reasons of security, and that that obligation prevailed over the United Kingdom ’ s obligations under Article 5 § 1 of the Convention (for details, see Al-Jedda , cited above, § § 18-22).

18 . The Committee of Ministers closed the supervision proceedings under Article 46 of the Convention in the case of Al-Jedda , cited above, on 4 December 2014 at the 1214th meeting of the Ministers ’ Deputies (see Resolution CM/ResDH(2014)271) on the basis of the Action Report provided by the United Kingdom authorities (see DH-DD(2014)1346 ). The Committee was satisfied that all t he measures required by Article 46, paragraph 1, had been adopted including where required 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 general measures preventing similar violations.

19 . In respect of general measures to prevent similar violations to that found in Al Jedda , cited above, the Government indicated in its Action report that individuals who had been detained by UK forces in Iraq could bring claims for compensation before the domestic courts:

“There are a significant number of Judicial Review claims from former detainees who, like Mr Al Jedda, were held in Iraq on security grounds and who are claiming Article 5 as well as other violations under the Convention. In response to these claims, the UK has committed significant resources to investigations, litigation and settlement awards. As described below, effective processes have been put in place to manage these claims and funds have been set aside to meet any awards made.

Since 2011, Court Orders have been in place to ensure progress on all sides and for the domestic courts to intervene and give directions where necessary. Regular and frequent directions hearings continue to take place and claims have been stayed allowing time for successful settlement negotiations. On 3 April 2012 the UK High Court ordered that case management of all claims for damages/violations of the Convention be conducted as a single group of cases. These measures have proved effective with all but 37 of the 327 claims comprising the first two batches of the damages claims have been settled so far. A third batch of claims alleging Article 2/3/5 violations have been issued and the same processes will be applied to them.

In 2013, all Iraq-related litigation and associated investigations were assigned to a single judge (Mr Justice Leggatt in the UK High Court) and are benefiting from his close supervision and direction. Mr Justice Leggatt held case management conferences in February and June 2014. Any cases not settled between the parties will be resolved through the UK courts. Where cases cannot be settled, trials of preliminary issues are being timetabled and will be heard by Mr Justice Leggatt in October 2014.

...

The UK takes due account of the Al Jedda judgment where relevant in its operations in other countries, such as Afghanistan. The UK Government ’ s policies and decisions can be challenged by judicial review, in which the domestic courts will where appropriate take account of the Al Jedda judgment. The UK Government takes account of the ECtHR and domestic court judgments in setting future policies and making subsequent decisions.”

COMPLAINT

The applicant complains that his detention between 12 February 2007 and 22 February 2007 was in violation of Article 5 § 1 of the Convention.

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty, in the period between 12 and 22 Febr uary 2007, in breach of Article 5 § 1 of the Convention?