CONCURRING OPINION OF JUDGE VALTICOS  

(Translation) 

This opinion refers to the wording used in paragraph 123 of the Chahal v. the United Kingdom judgment, which concerns Article 5 para . 1 (art. 5-1). 

While sharing the opinion of the majority of the Grand Chamber and concurring in their conclusion that there has been no violation of that provision (art. 5-1), I am unable to agree with the statement in the first sub-paragraph of paragraph 123 that Mr Chahal's detention "complied with the requirements of Article 5 para . 1 (f) (art. 5-1-f)". 

Article 5 para . 1 (f) (art. 5-1-f) provides that "...  No one shall be deprived of his liberty save [in the case of] ... the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation ...".  That provision (art. 5-1-f) must be interpreted in good faith and with common sense, as indeed must any legal provision.  I would have qualms about holding here that a period of four or five years could really be regarded as "[complying] with the requirements" of that Article (art. 5-1-f) and as being "lawful" detention for a transitional and, in principle, limited period.  Admittedly, there were particular reasons in the present case which prevented the applicant being deported promptly (consideration of his application for judicial review and, above all, the problem of whether it was appropriate to deport him to India ).  But to go from that to saying that the situation "complied with the requirements" of Article 5 of the Convention (art. 5) seems to me excessive.  However, one cannot go to the opposite extreme of holding that there has been a violation of the Convention for the Government were able to point to reasons of some weight.  In my view, it would have been preferable to say merely that Mr Chahal's detention "was not contrary" to the requirements of Article 5 (art. 5).  That is the reason for my objection to the wording of paragraph 123. 

On the other hand, I agree that, as set out in the Court's final decision (point 2 of the operative provisions), there has been no violation of Article 5 para . 1 (art. 5-1)

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CONCURRING OPINION OF JUDGE JAMBREK

1.   Once more in this case, the Court has had to consider the issue of the use of confidential material in the domestic courts where national security is at stake.  I agree with the Court's finding that the domestic proceedings for habeas corpus and for judicial review of the decision to detain Mr Chahal did not satisfy the requirements of Article 5 para . 4 (art. 5-4). 

I also agree with the Court's reasoning as to the relevant principles and their application, that is:   

(a) that the use of confidential material may be unavoidable where national security is at stake,  

(b) that the national authorities, however, are not free in this respect from effective control by the domestic courts, and  

(c) that there are techniques which can be employed which both accommodate legitimate security concerns and yet accord the individual a substantial measure of procedural justice. 

This last point, (c), represents a new development in the Court's case-law and therefore, in my view, deserves special attention.

2.   In Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, Series A no. 182, pp. 17-18, paras . 34-35) the Court pointed to the responsibility of the Government to furnish at least some facts or information capable of satisfying it that the arrested person was reasonably suspected of having committed the alleged offence.  The fact that Mr Fox and Ms Campbell both had previous convictions for acts of terrorism did not convince the Court that there was "reasonable suspicion", and it therefore held that there had been a breach of Article 5 para . 1 (art. 5-1) (paragraphs 34 and 35). 

In the Murray v. the United Kingdom judgment of 28 October 1994 (Series A no. 300-A, pp. 27-29, paras . 58-63, passim) the Court reiterated its Fox, Campbell and Hartley standard, but found that the conviction in the United States of America of two of Mrs Murray's brothers of offences connected with the purchase of arms for the Provisional IRA and her visits to the USA and contacts with her brothers represented sufficient facts or information to meet the above standard, in other words, that they provided a plausible and objective basis for a "reasonable suspicion".

3.   I dissented from the majority's view in the Murray judgment previously cited, pp. 45-47, as regards the violation of Article 5 paras . 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5).  In my partly dissenting opinion, I held in relation to the issue of "reasonable suspicion" that the condition of reasonableness was not fulfilled, as the Government had not succeeded in furnishing "at least some facts or information" which would satisfy an objective observer that the person concerned might have committed the offence. 

In my opinion in Murray I also anticipated the issue which has arisen in the present case, to which I refer under 1 (c) supra, when I posed the question whether "it was possible for the Court to set some modified standards for `reasonable suspicion' in the context of emergency laws enacted to combat terrorist crime".  By way of a general reply, I advocated treating evidence in different ways depending on the degree of its confidentiality.

4.   The Court also referred in the Fox, Campbell and Hartley case to "information which ... cannot ... be revealed to the suspect or produced in court to support the charge" (paragraph 32).  This distinction in my view raises two relevant questions: first, is it justifiable to distinguish between revealing information to the suspect and producing it in court?  And secondly, is there a difference between information made available to the court and information produced in court which is revealed to the suspect (see also my dissenting opinion in the Murray case)? 

In the present case of Chahal , in discussing the alleged violation of Article 13 of the Convention (art. 13), the Court refers to the technique under the Canadian Immigration Act 1976, to which the intervenors drew attention.  There, a Federal Court judge holds an in camera hearing of all the evidence, while the confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative.  However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court.  A summary of the evidence, with necessary deletions, is given to the applicant.

5.   In my dissenting opinion in the Murray case, I suggested the following similar approach, couched (partly due to the absence of information about the Canadian technique) in more general terms, as representing a compromise between the wish to preserve the Fox, Campbell and Hartley standard and the need to expand the Court's reasoning in order to adapt it better to other similar cases. 

Thus, I questioned "whether otherwise confidential information could not be rephrased, reshaped or tailored in order to protect its source and then be revealed.  In this respect the domestic court could seek an alternative, independent expert opinion, without relying solely on the assertions of the arresting authority".

6.   The purpose of the present concurring opinion is, therefore, to put this part of the Court's judgment into the context of its evolving case-law. 

The Court may indeed be satisfied, in a future similar case, that some sensitive information may be produced in the domestic court, or even during the Strasbourg proceedings, which was and will not be revealed - at least not in its entirety, and in an unmodified form - to the suspect or to the detainee. 

It will then remain the task of the Court to reconcile the demands of the adversarial principle with the need to protect confidentiality of information derived from secret sources pertaining to national security.